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I
*..
State Trials.
VOL. XI.
O ' r
COMPLET£?:MeO\i4LECTION
• •_ . • • •
State Trials
AND
PROCEEDINGS FOR HIGH TREASON AND OTHER
CRIMES ANP MISDEMEANORS
FBOM THe
EARUEST PERIOD TO THE PRESENT TIME,
WITH KOTES AJfD OTHER ILLUSTRATIOJTS
COMPILED BY
T. B. HOWELL, Esq. F.R.S. F.S.A.
VOL. XI.
A.D. 1680—1688.
LONDON:
PRINTED BY T. C HANSARD, PETERBOROUOH-OOUBT, FLBET-STRBET:
FOR LONGMAN, HUBST, REE8, ORME, & CO. } J. RICHARDSON ; BLACK,
PARRY, & KINGSBURY; J. HATCHARD; E. LLOYD; J. BUDD;
J. FAULDER; J. BOOKER ; CRADOCK & JOY ; E. JSFFEIlY;
}. BOOTH; AND T. C. HANSARD.
laii.
1 ''>•'>••'
TABLE OF CONTENTS
TO
VOLUME XL
%♦ The new ArHcles are mariei [N.]
Pag€
J25. PftOCBEMNes ^g^ltat HERlWkS OP tfifi SfitftEOF FIFE,
for Absetrcfe from the Kitig's Host, a. d. IBSO. t^ow first printed
from the Records of Justiciary in Edinburgh] [N.] ^ ;.••« 1
826. ProoeediBgs against THE 00{U90NS, of Eartestooki, ^itA xStb^ftn, for
Treason, a. d. 1680. [Now first printed from the Records of Jus-
ticiary in,l^cot1and] [N.] ...•*. ^ 46
3S7. Proceedings against JOHN Lord BARGENY, for Treason, a. d.
1680. [Now frrst printed from the Records of Joi(ticiary in iScot*
land] [N.) : 6S
926. Vrocetidings upon a Proceis cff Bn-cfr, rftkad «gainit KkLEXANDER
BLAIR and eihen, ibr the Mqnktal «€ Jmntii Didc Md others,
indicted for Treason and Rebellion, a« d. 168L. [Now first
printed frotn'tha Recofdn tf Jiirfliiehry ki i^inbtirgh'] fN.] •••••• tB
i^. Proceedings against CHARLES Earl of LAUDERDALE. RICHARD
Lord MAITLANDUslSoti, and others, for Offlsial Maltvmlbns ^
respeciiiig the Boyal Mint of Scotoid^ a. t. l€6a«l6ffS. [Now
first printed from tiie Prify Cdmcal Books ait XdinbQr|;hij .[N.]... Ibt
330. Pffooeedtnga agabst SEVERAL RffifiDHB. OF iAtWSKSOHCE,
tot Treaaon, a. »• 1081. (NM^itt pniled(ftt>tn ill* Secoids of
Justiciary at £dini>«rgh|| £N.j •%v»4««M«<«««M*«*^«*««v»tf#««v»^*«««A..«« 9i6
TABLE OF €ONTBNTO.
Page
SSI. The Trial of the Lady AUCE LTSLE, at WintOB, for High Tlreasoo,
A. o. 1685 298
m. Trial! of JOHN FERNLEY, WttLIAM RING, EUZ. GAUNT,
and HENRY CORNISH, esq. at the Old Bailey, for High
TreaioD, a.d. 1685 382
REMARKS upon Mr. CORNISH'S Trial, by Sir John Hawlbs,
Solicitor-General in the Reign of King William the Third ••• 455
333. The Trial of WILLIAM DISNEY, esq. by the King's Special Com-.
mission of Oyer and Terminer, held at the Marshalsea in Soath-
wark, for High Treason, a. d. 1685 468
334. The Trial of CHARLES BATEMAN, Surgeon, at the Old Bailey,
for High Treason, a. d. 1685 .....•..•• 467
REMARKS on the Trial of Mr. CHARLES BATEMAN.
By Sir Jobm Hawlbs, Solicitor-General In the Reign of King
William the Third * 474
335. The Trial of JOHN HAMPDEN", esq. at the Old Bailey, for High
Treason, a. d. 1685 • ., , 479
336. Proceedings aga'mst RICHARD BAXTER, Clerk, for a seditious
Libel, at Gaildhall, before Ix>rd Chief Justice Jeffreys, a. d. 1685 49/
337. The Trial of ROBERT FRANCES, Gent, for the Murder of Thomas
Dangerfield, at Jastice-Hall in the Old-Bailey, before the Right
Hon. Sir James Smith, knt Lord-Mayor of London, Sir Thomas
Jenner, knt. Recorder of the said City, and one of his Majesty's
SerjeanU at Law, and <»tbers his Majesty's Justices, a. d. 1685 ...
338. The Trial of HENRY Lord DELAMERE, in the Court of the Lord
High Steward, at Westminster, for High Treason, a. d. I686
339. Proceedings in Parliament against THOMAS Earl of DANBY, Lor
High TVeasorer of England, upon an Impeachment of High TVe.
son, and other High-Crimet and Misdemeanors, a. d. 1678-1685
840. PxM»edings against RICHARD RUMBOLD, for High.Trea»
A. D. 1685. iNow fint priolwl fw>« the Records of Priry Ow
andConctiof.JiiiticiaKy.atSdinbii^^J C^O ••*« •••«»•«.
TABLE OF CONTENm
345.
347.
348.
349.
P^
341. Proctedings against THOMAS ARCHER, ALEXANDER SHEILS,
and others^ for Treason, a. d, ]6S5. [Now firtt published from
the Records of Justiciary in Edinburgh] [N.] .,., „ ggQ
342. Proceedings agaiiist SEVERAL PERSONS OF GALLOWAY, for
Treajion, a. d, 1<5b2. [Now first printed from the Records of Jus-
ticiary at Edinburgh] [N.] „,....»...*..,.., ........*. «,..«. 910
343. Proceedings against JOHN SEMPLE, JOHN WATT, and GA-
BRIEL THOMPSON, for Treason, a, i>. 1614-, [Now first pub-
lished from the Records of Justiciary at Edinburgh] [N.] „„ 950
Proceedings against DENHOLME of Westshiels, and othert, for
Treason and Reset of Traitors, a. n. J 685. [Now first printed
from ihe Records of Justiciary at Edinburgh] [N,] gfff
Trial of DAVID MOWBRAY, for a Tumult within Burgh, a. o,
IGB^, [Now first printed from the Records of Justiciary at Edin-
burgh] [N.].. 1003
Trial of ALEXANDER KEITH, for Sedition, Mutiny, and Tumult,
m Burgh, a. d. \f>U6. [Now first printed from the Records of
Justiciary at Edinburgh] [N.] «•«». 1018
Proceedings against JAMES sometime Duke of BUCCLEUGIl (and
MONMOUTH). Sir JAMES DALRYMPLE of STAIR, AN-
DREW FLETCHER of Salioun, and others, for High Treason
and Rtbellion, a. 0. ia85-l6S6. [Now first printed from the
Records of Justiciary in Edinburgh] [R] 1023
Proceedings against GILBERT BURNET, D. D* afierwards Bi.shop
of Salisbury, for High Treason, a. d. 1CJ87 [N.) •. 1I03
Proceedings against Dr. HENRY COMPTON, Lord Bishop of
^^^ London, in the Council-Chamber at Whitehall, by the Lords Corn-
^^m miisioners appointed by his Majesty to innpect Ecclesiastical
^^B Afiiiirs, for not suspending Dr. John Sharp, Rector of St. Giles's,
^P A. D. 1686 1123
r 350. T
The Trial of Sir EDWARD HALES, barf, for neglecting to take the
Oaths of Supremacy and Allegiance; with his Plea thereto, upon
the King's diipens'mg with the Stat. 25 Car. 2, and the Opinion of
the Judges thereupon, A. p. 1635 ••.«t**».4*«**»**«* # U6S
TABLE OF CONTENTS.
Pagf
SSI. The IVial of the Lady ALICE LTSLE^ at Winton, for High TreaioD,
A. D. 1685 SSi
332. Trials of JOHN FERNLEY, WILUAM RING, EUZ. GAUNT,
and HENRY CORNISH, esq. at the Old Bailey, for High
Treason, a.d. 16B5 S8S
REMARKS upon Mr. CORNISH'S Trial, by Sir John Hawlbs,
Solicitor-General in the Reign of King William the Third ••• 45!
533. The Trial of WILLIAM DISNEY, esq. by the King's Special Coai->
mission of Oyer and Terminer, held at the Marshalsea in Sooth-
wark, for High Treason, a.d. 1685 iSt
534. The Trial of CHARLES BATEMAN, Surgeon, at the Old Bailey,
for High Treason, a. d. 1685 ^ 46:
REMARKS on the Trial of Mr. CHARLES BATEMAN.
By Sir John Hawlbs, Solicitor-General in the Reign of King
William the Third # 47'
3S5. The Trial of JOHN HAMPDEN', esq. at the Old Bailey, for High
Treason, a.d. 1685 47j
SS6. Proceedings against RICHARD BAXTER, Clerk, for a seditious
Libel, at Guildhall, before Lord Chief Justice Jefireys, a. d. 1685 49^
S37. The Trial of ROBERT FRANCES, Gent, for the Murder of Thomas
Dangerfield, at Justice-Hall in the Old-Bailey, before the Right
Hon. Sir James Smith, knt. liOrd-Mayor of London, Sir Thomas
Jenner, knt Recorder of the said City, and one of his Majesty's
Serjeants at Law, and others his Majesty's Justices, a. d. 1685 ... 50;
SS8. The Trial of HENRY Lord DELAMERE, in the Court of the Lord
High Steward, at Westminster, for High Treason, a. d. 1686 51<
859. Proceedings in Pariiament against THOMAS Eari of DANBY, Lord
High IVeasurer of England, upon an Impeachment of High IVea*
son, and other High-Crimes and Misdemeanors, a. d. 1678-1685 59!
840. Proceedings against RICHARD RUMBOLD, for High-Treaaon,
A. n. 1685. £Now firsfc printed from the Records of Privy CooDcil
andCoortof Justicisuy.atJBdiabarghJ [N.] ••^•••.•.•••«M«»M«k.» 87
TABLE OF CONTENTS.
Pag$
341. Proctediogs agaimt THOMAS ARCBER. ALEXANDER SHEILS,
and others, for Treason^ a. d, 1685* [Now first published from
the Records of J uiiiciary in Edinburgh] [N.] ggo
12. Proceedings agamst SEVERAL PERSONS OF GALLOWAY, for
TreasoAj a. d, l6SSf. [Now first printed from the Records of Jus-
«v ticiary at Edinburgh] [N.] , 9|0
3*3. Proceedings against JOHN SEMPLE, JOHN WATT, and GA-
BRIEL THOMPSON, for Treason, a. d. 1614. [Now first pub*
lished from the Records of Justiciary at Edinburgh] [N*] 950
314* Proceedings against DEN HOLME of Westshiels, and others, for
Treason and Reset of Traitors, a« n. 1685* [Now fir^t printed
from the Records of Justiciary at Edinburgh] [N.] ggff
345. Trial of DAVID MOWBRAY, for a Tumult within Burgh, a. o.
)6B6. [Now first printed from tlie Records of Justiciary at Edin-
burgh] [N.] 1003
Trial of ALEXANDER KEITH, for Sedition, Mutiny, and Tumult.
m Burgh, a. d. 16H(}. [Now first printed from the Records of
Justiciary at Edinburgh] [N.] IQ\%
Proceedings against JAMES sometime Duke of BUCCLEUGH (and
MONMOUTH), Sir JAMES DALRYMPLE of STAIR, AN-
DREW FLETCHER of Salioun, and others, for High Treason
and Rebellion, a. i>. 1685-16S6. [Now first printed from the
Records of Justiciary in Edinburgh] [N.] •« .«.. *.,» 1033
348. Proceedings against GILBERT BURNET, D. D. afterwards Bishop
of Salisbury, for High Treason, a. o* J687 [N] 1103
349. Proceedings against Dr. HENRY COMPTON, Lord Bishop of
London^ in the Council-Chamber at Whitehall, by the Lords Ce^m-
missioners appointed by his Majesty to inspect Ecclesiastical
Afiairs, for not suspending Dr, John Sharp, Rector of St. Giles's,
A. D. I6S6-... I IfS
360. The Trial of Sir EDWARD HALES^ barl. for neglecting to take the
Oaths of Supremacy and Allegiance; with his Plea thereto^ upon
the King's diipens'mg with the StaL 23 Car. Q^ and the Opinion of
the Judges thereupon, A. D. \^m «**o. ...*•«.. 1160
fABLB OF COKlCKia
351. ProcMfiBgt fBin^ Mr. JOHN PBACHSLt, Vic«4aMMltaf^ tnil
the UNIVBHSmr OP CAMBRIDGE, fcr sot admitting AHian
Fraiicit, » Benedictime Monk, to the Dogroo of Maiter of Artt,
April and May, a.d« 1087 131
S59. The ProeeediBga agalnft Mn SAMUEL JOBNSOI«, who was tried
at the King^srBeneh Bar, Westmiialec^ for High Mbdemeaiion
(and foand gailt^ of writing and pablishing two Beditions and
•candalooi Libek against the Gorernment) a.d. i0S6 139!
3S» The Cape of WILLIAM Barl of DEVONSHIRB, oa an Information
in the King's Bench, for assaalting Colonel Calpepper in the
Ktng'sPal»ce> A.9. 1687 139^
a&i The Trial of PHIUF STANDSFIELD, Soato Sir James Standifield,
of New-Milns in Scotland, for High Treason, the Marder of his
Father, and other Crimes libelled against him, a. d. 168« 137]
1
C O B B E T T'S
COMPLETE COLLECTION
OF
State Trials.
325. Proceedings against Heritors of the Shire of Fife, for Al
sence from the King's Host:* 3'i Charles 11. a-d. Ifi80|
[Now first priuted from the Records of Justiciary in Edii
burgli,]
Clru JusTtcutuc, S.D.N, ^' I ill
Pneiorio lltirfjri tk* Kilinbu iiiio
icrtif» die metJNi>i Fehrtiarii, 1-. l\ jjli' ho-
Icenzietie'^IVhet JuMir 1*"m,
Thomain Wallace do ^ .iriie
ClericuiOi Jflrf>ltiuni I'uti,. ni iMutoiin,
Ri»i>rHmti Nairn iJe Si nM I lunL Jliivid«'«ii
BaUbur «lc roiret, Daviili^'in I'nkonur de
NewtoiJti, ol lloi^* runi lfo^rt>^^,» Iliirrairssj
Regis.
Curm k'giltiitir aiiiiuiutu,
■ /ftiv* <»r Bnlliousio*
Habfft fiitmUton, of KttbracUmout
' JoTHts Metritis of Cii&s'iufmy ,
jiierantkr Durhamt^ of Liirgp. ,
Captain Gifiam Murray ^ oCPItkeme^
Charifii CimtiH, orCorstoun.
David fiakant^uiN^ of 1 bat llk»
Aternntfer A'winir, of Nuriif'uunli
Jumci YoMn4(, of Kirktfiun*
^ Wodww do
lecuUon. Him
ccerliitt'- "
theK
M V
Horn
oiir i nil, vfhicli till
iniikr i: i*alti'd U» the
kiff^N iiit^L a t'rtat tnmt*j and ad tfrrorem
ptt^rf puniHlinu'iil'i arc by thewr kwg knit to
It ; but t queiiiioal if for ihefe hnodredt ar
VOL. XL
Me,Af' V;..-. ' '" Litlefreirioum.
John J.
GtVrgt ,.r, ^ ,- . .l„
8ir Jaf«^,* :ihtctntr^ ot Kinnaird*
J< ) A « J 1 1 uu It , of 1 n r! n lert» ie.
Brown ^ of Phinnmnt.
— — Murrtt}/,, of pjtkH''li!e.
Jfimt* Kynnintnvnd, ot that Hk,
J time* U^et/mcM, oi*ii\tt\i^\*y\in,
Robert Khttuil^ of Uv
iy\v Jitrm,4 litwtf«irmt\ i*».
John Litid^iaif^ of Do^\liilL
David Bcatan^ of Dandon.
WaiUr Latif^ ol' Bnmtouiu
— Balhntr^ of Baibi rue-
Sir Joh''''- rr,;^ of FonUfif
Rohcri <!mtj of WmMlfeild.
Ihnry .:..,.,...., : urtioner^ ol'lwia{^borfi,
Mr, John MitcheU^ of Babaixlie.
Mr, Charier WardifiJiCj of i«gti».
InDYTED and accused, Tliat wlier, no,
wUli&iamUojf be tbe laHes and acts of pnrUa-
meutsof tbis kincfdome and con^ttunt practoit^
iberaf, the reinainiii^ aod abiding frae liia
hundred and (lAv years, tbey were put in exe-
cution, iiU liovt they aie advanced hhhu handl#
a^iiiat a great niuuy pcraons, vrbo from dif-
fcreni roaaoiis came uot out ag-aint^t the U'eat
cotintry army .
^* ^!'i tier* were laid last y*»ar for llim pro*
«f mition ; and, itriU^NH''n. 1 Itf't tluMiii to thia
jdace» and so ^ Atter
tbc rising al k ir ^vas.
made about bcrihir> ultini-j upon th
army; but now on, i^j resolve up(
cottfves : and i^Uvu tboy Jiud
(
5] 32 CHARLES II.
in4jf^ti>'« host ftnd royall stmodart be bve
c.Tyitie^ and KT«Hia piqukiUe; sad be tfce
4ih Act, 1st ParliaiD^t kiog Jamft 1, it u
^tfttijt an<) onJaioedt that ifaoy doobejs to
\«li:it uas to arise from the estates of sach as
had been personallv concemed in the imingj
would not answer tneir expectatioof, a more
genera] oppression of gentlemen and heritors is
resolved upon. It was presumed, that sach
who did not heartily join the army, were well
affected to Presbyterians, and no opportunity
of brinsring such to trouble was left, especially
when it was like to brinsf in lanfe sums of
money. Thus I ftnd 6y tSe council -registers,
Noycniber 6, < That, at the dvsire of the lords
* of justiciary, a committee is named to Meet
* with them, the chancellor, earls of Argyle,
* Alurray, Gleucaim, the president, treasurer
* depute, register, and advocate, and consider
< what shall be the punishment of absents from
< the king's host. November 8. Their opinion
* is re|>orted, that the heritors and freeholders
' {guilty, should be fined ; the most guilty not
* above two years valued rent, and the least in
* a fourth paVt of their rent : that those who
' are fined in the least degree, be appointed to
* take the oath of allegiance and declaration,
' and, if they refuse, that they be fined in the
' hi*; best rank.' The council approve this
report. Thus no small pcrHecntion for cou-
scieucc sake, is mixed with thi<* civil kind of
crime. Those proposals are transmitted in a
letter to LawderdaJe, dated,
<< Edinburgh, November 11, 1679.
<' May it pleaae your grace ;
" The just abhorrence we have of the lnht
rebellion, and the too just fears that the same
principles may occasion the same distempers,
do obhge as to inform his majesty by your
grace, that if these who went m»t V} a«ii<it hu
m:^estj against these rebels, or fleMTtefl the
king's host, be not paniabed, we CMnnfA pro-
miie hifl majesty wdl hate any prtprirtir/nal
fcrce against any fntnra issurretticnfl, «inre
«« ficC by oqr great experience, that tbew
who «eR at daily expcnce and hazard m that
cs^iboMi^ are nneh dbcooraged, when tfi^-v
^ttc^ben who flayed at Wwie, or d<Mrt#-fl, j
^-^-^ MthiDg ; and that soch at M^yttl at j
Proeeedingi agaiiui
[«
Us
yy**wi a priadpleoT mMnMtem to hi*
^j^yy^CHMMl, d» trett the doifffiln#^
and iin-
yoor grac^
tiMlweanarevdvH
mwy ikmt f^bMen^ m
te Urn Mi'nhiuiyl tlMiId be
brnigM4
inforce the king against nottor rebells agaiimt
hia person, when they be required be tM king
and commandit, they shall be chalenged be the
king as fkvourers of sick rebellers ; and be the
offenders have been punished by forfeitures^
confiscations, and banishment Theie our re-
solutions, though taken and formed afler much
serious debate, are sul^ected with all dutiful
respect to hia majesty's royal consideration, by
«( Your grace's most humble SSenrant,
«< Rothes, Cancel. I. P. D.'*
« The niiotiona for this heavy oppression of
midtitudes, we see, caniefrom Edinburgh, and
were fallen in with at London. AccordinglTf
I find a letter from the king upon this son-
ject, recordedin the justidary-registers, of the
date,
" C. R. " Whitehall, Nor. 18, 1629.
'< Whereas, albeit by express law, the de-
serters from our host he punishable by death,
yet we are graciously pleased hereby to allow
yon to proceed against them in the same way,
and to the same pains and punishments as yoa
are resolved to proceed against the guiltiest of
such as did not come to our host : for doing
whereof this shall he your warrant.
" Lawoerdalb.'*
<* By the proclamation issued out during the
rising, tlie absents from the host wei*e to be
punished as deserters of it ; but that being
death by some antiquated laws, and it not
being blood but iTioney, a good many alK>ut
Edinburgh were at this time wanting. This
le ter was procured with relation to deserters,
who, I suppose, were not many, in the ordi-
nary sense of the word ; and this was a preface
to what followed as to the absents.
'< I'hat same day, a letter is writ to the couo
cil, approving the projposal in ail points, whic
they make in theirs of the 11th, and so it need
not lie insert here. When they are thus war
ranted to begin their finings upon this hea
they go rouudly to work, and letters are v
to the sheriffs m each shire, that they send
the h*x>ks of valuation, or attested copies
tliem U> Edinburgh ; and the officers of '
army are appointed to send in lists of the
riu>r% in each shire, who did not attend
kir^'« ho«t.
" io fiecerober and January, citatior
mtWrtsA X/» be given to some handreds c
ti^'m^^i, fi#:rit/w*,and freeholders, by th«
eiary • it t/y* vime time before the listi
be made up, %w\ the witnesses condesi
on, arid th* rraiisgers themselves seem
be ffiSiy ftgTMd, and se? erals were for nr
iywrsM» g«^4km#tks exctises being fow
f^ ih^tm hiffitlj fswnnMt for not r
iw<HfttT<, arid t/M^ttt^ t// the host
f Mwt party j^*?a«kd.
" Turn, r^titfy ^1J, • great mi
Asraf/e g^.fWri#»», fmitnnf «nd ft
ga»n«iM b^^^ t^ jMtidaor fc
JLtm tlie t^^-* ^ receive tbetr r
the ft/eihire tferitors,
5Tth Act, IStli ParlLament king^ James $, U b
onlainedf that all maner of men that ban land
or goods be rcadie horsed and g;eared eOer ihe
facuftie of his lands and goods lor the defence
of the realint at the comniandTnenl of the
king^s letters, and whoso liets not, he shall he
jlUDisbed ID his person and goods, espectallie
when they are reqiij^red therto be his innjes-
tie's proclamation for subdueing^ of traiterous
|iloyed by the gentlemen, and their deftences
are longf and pleadings wery l&r<(e upoti the
mattsr in general, and the uarticnlur oirctitn-
stances of the pannels. The advocate give«
hirge replies, and enforces hh rcawmings with
the freight of the letter from the king to the
council upon this head, dated November 18,
which \tas noticed just now,
** This argument from a resolution in coun-
ctl, backed vrith rojal approbation^ no douht
was uuansv^crable ; ami so the lords give sen-
tence against the gentlemen. 1 cannot insert
all who were fined now and atVrwards ; only,
for A taste at this time, James Young of Kirk-
loan is iined in 1870/. Hcots, of Fit-
lochic in 700/* Alexander Durham of Largo
fn 1830/. Darid Bakanquel of that ilk in 50Ql
Alexander Nairn ol' Saml'urd in 294 /. George
Moncrief of Re* lie in 300/. James VVeeras in
Glencoffitoim in 173/. and muUiiudes of others,
** At other diets of the Justiciary in Fc-
brtiary, 1 find vast numbers ot gentlemen and
heritors in the shires of Lothian, the IVlerse,
and other places, pannellcd, and more than a
hutidred of them fined in very considerable
sums ; and, fowanls the t-nd of March, the
Lords are taktn up in th<? same work : sen-
tences are pa^tugamstasmany as in February,
if not more, and diiichargesare produced of the
paymc^ntof former tiues, tiomeof them several
thi>usand jiouuds.
*• Upon the ^6th of July, this matter of ab-
sence from the king's ho«t» is taken oirt of the
hands of the joi»tioi»ry, r.nd put in the hands of
the council* Thih was a more arbitrary court,
and ^dve not themselves the trouble of lawyers,
ftod iegaJ del«nces* That day, 1 tiud the ad-
focafe produced a letter from the king, of
the dat«,
«« C* R. Windsor, Jane 1, 1680.
** Right trosty, Bcc. We are sensible of the
lall etfects that have followed by the trial of
who have beeii absent froni our li»jst,
the justiciary ; and hemg nilbnncd that
summons are isi^ed out to cite many others
through the shires for that crime, it h now our
will nsd pleasure, that they be proceedeil
against, not criminally, but by Way of finnig,
hi lo the degrees of tneir gutH, uotad*
II olous excuses for ubsaiice or deser*
tJoni HiMcli we look upon a^i preparatives of
tatfurona consequence to our service, Wv
icure nonp f -""-t** T-*- ^n- troubled with trials
or cttntiun r. , pted w ho are known
t0b«iu>ion(j^'*j t,.,^i.^.,4^^ij toour government
id Hate : tor though we ate at this
A. D. IfigO. [6
and sedltioits rebells, who hade most trailer
ou!ilie assumed and taken the hoUltii " ' eF T
his niajrstie's law^ and act« ot |i
at the marcal cmce ot the hur^he *»t ii. m
glen, tipon the iwentJe-nynth f>f May hsl, M
day appoinie^l for nm? sidt-nine nnniver^iary
thanksgiving (W his niai»^stii'*s rest no ration td
the royal I government id' thli kingdonie, and
who hade most tressonablic eonvocat and as-
time gracioofily pleased to excuse them from
criminal inocejis, yet we will tUft suffer absf u!i
and deserters to escape without some puiiisti*
ment by way of fining* which we desire yoi
to signify to our justice con rt Ho we bid
you, 6cc.
*^ How it came to pa$s that such a letter «s
this, of the date, Jutie 1. was not iutimiitc*d,
till July 26, I shall not enriuircs rt-rtainly
someboily or other found their advanlJige by
it. This letter is intimated and rrcordeil in the
criminal books, and ftll processes in dependence
before them are dotted, and in their rooin
succeed the processes for forfeiture of life
af^r Airs- moss.
*♦ When this matter comes before the conn-
cil, they go closely to work, and their regiMers
fbr some months are mostly taken up with
those processes. Many hnnilreds are cited
before them, the diets of some aie continued,
others are deserted (not without composjtioiis
and money jn-ivalely given.) Mulliiuilea are
fined in absence, and some det^lavtd fugitive.
I To enter upon particulars would swtfll this
I chapter too much. Let me give only a few
tnstauces, < July 13, Dundaa uf Borthwick is
* tined in a year*s rent. August 1, the laird
' of Riddel's excuses tor absence not sustained,
* he is fined in two years rent, which is C,QOQ(,
* Scots; George Douglas *d iJoryedhurgh fined
* in ti,000/. Scots ; Ker oC Cherr> trees in 3,(KH)
* merks ; James Scot oFThitLstiioe in '^770/, ;
* Francis Hoot of Gieenhitl in H(>0/. Ills uo-
* ticedj that they nil refused the de« laration,
* probably otherwise they might have had their
* excuse* fius*aincd, or l>een tlued vastly down
* of those sums ; and so they art^pruiurly suf-
* fcrers for their oiiiniiin in painl ul" pitrliicy^
' Augttst 9, the following ptj^onsin nerwick*
^ fihire, are fined fur ab^t^nce from tlie Imst j
' l^trlck Wai-dlaw in t.OOijL S*^ots, flglwrt
* BrowQ of Blackburn l.yoo/. Pmi:?b of
* Greeukntnv l nOO/. Alexundt^r Flume in 8t,
* Hathaii nel !!JjH.nce 400/. C'hipper-
Moun ol Irugh 1,000 merks, Georgis
* FTnme ot Bi*i>sf iiden 1»000 tnerks.* They arts
all ordained to pay in six days. But papiicular
instances woiUdht* endless. Nov. li, I find tire
council apiKiiul, * Th»it caption be executed
* with concurrence of parties of SidJiers, for the
» fines of the absents from the host ; that their
' escheats be giUcil in nan^e of his majesty**
* cush-kcej>er ; that in tirnecomingy all found
* gnihy of absencf shall be kept lu custody till
* they pay the fine.' Thist obliged many ui»t lo
compear, and then the soldiers exev^ule llies«u>
tence pronou need i n absence. ' '
yj S2 CHARLES II.
sr:iiMv(!f not odIv without but as^oeit hit i
m3jr<U(.\ auihuriue, to thf.- number of t'^'ve or
fiv liuti'ir. lii, anil took the boMres to luvaue
Aft-l >c'.t xitfri: ^rtiie troujis ot' bis majestie's j
L'/.w!ounhilL wbcrr haviri<( killc-iJ '
•i.t *'_-f erall of hi.^ majfnilie's subjects :
:•:-. and bcin:^ th*:rby iaiboliirif.fi, ■
« ->^!l a.'ifl «;rowe to th^ number of i
-: -ri'^iiftari^l, t'l nhicb lilt iiiaje»ii</fe I
t r> -^ vter noua\«A frfiij;^! ; aud bib
i »• » .f jf'f:.<^r%Jii.on M" lil<i ri.yall '
.' .: \i.i '."Ji- .-.iiij ri', li.t b'lj'jiii-- i
I. ".A l.->-i»^ i;. :.':, *.l TjiS l"Ki#l aiid
. ' : .;«j-.t ii^;,'' ' j! tfl out. rc«jij\red
• . . . 'i ;.- '. '.r »:\ri:»ffr^ in ihfc
"■ ......: l^ * -^ 'J i:i t;.*- .Aii-
.:'.-. .: Uoirs* MJi^-
'-t-.f-i toa.Un^ ibe
Jo.-
'•£-*
R...
I .»
ar^i
I -
iti-
■V 1
r.-
ir :
■ ,. .-
7 '..'J-. k
* ■ .* , - *
■. *■ '. l^r." . .'
* > 3 .. I
.f:
.n tho
.'f T' iM-%
\ -..;. tf*
•■sr
/^
"t^
tiu; ur6-rk wtfof.t itm^"^ *.j^j, k f.
<«•,
1
B
n
V''.*2r*^ ^*«i «»4 «h»r WV '^ '■•-■'
-«U^^^j[T7^te)ttW&4lU^ b>«i^ v{
Proeeedhgs against [8
and conitDaniJf d, all heritors and frechdIderSy
sensible [fensiblej |)crsun8lher«erYantsand fol-
low ers, to cunie out uiion horseback within tlie
lie iititlcT tb(» cnminrjiid of general Dalziel ; the
^birc of IIaddinL>ii}jn to meet ai BeinstouD-
ii;iiir the* 1 itli &a\ of June instant, and to
be under thi* cointuand of i lie viscount of Kingf-
stoun ; Slirliii<j: and Clackmannan to meet at
iht town of SiiiliiiL:, and from tlicuce to inarch
to the links of Ltitli upon the 11th day of
Juiifr iii.lant, and to be under the (*ommanci
.if the lord £lphi!ii,'stoun ; l^rw ick to meet at
Fo'^o-nniir upon the llth day of June in-
stant, aiid to Ih; under the comniand of the earl
(•f Htiine, and in his alisrncr, his brother
Cburles llumt*; Koxhur^^h ainl S:lkirk to meet
;it Annum-biiiiije upon the loth day «»t*
Jnnr; instant, and to be under the command ut'
the lord Eliiiauk, and the laird of Slobs, wlio
arri to command i-ccurdli^ to the divisi(»n of the
ih.Iitia troops; lifo to meet at Cowjiar the
Tiih day of June in>Uuit, and to l>e under the
coiiiruand of the lord Newark; Perth to luevt
at I'f rill the i:>lh day of June instant and
to l»f; iin 1».T the command of ihe niar«]uis of
MMiir«**.c, and Mich pei-sons under him as he
shall ap|/>int ; Torfar to mtet at Forfar upon
ih<: L.tli da\ oi June instant, and to be under
lb*- co.xn.aiid of the earl of Souihcsk; Riii.
r,:,.-fj..iar:'! Mar>.'i.oI s part of Aberdeen to meet
h* A »*.''.*'•'; ii i.iir- iipon the lyth day of
J'i:.*' .'.-^'xir, -i-ii It ^le iiudcr the command of
•. ': '-^.ri ,: \h')\h\ li^nilfar.d FrroPs |»art ot
i.v -'.': ; . *f rn(: i ■:'. '1 i.neffn|jon the l^ih day
' /.;..;.•.-.;; r.t, >.ii'i i** Ji" under the uoumiaud
.. '..J? '-...'I ol Ki:.t..* ; i«l;;ini Forics, Nairn
-i y. r/.. «tMf: \t: ■, I'l MJ(;et ui Forn^s upou
'•>: ;.•',»», r:..v 'J Jfi;. iniiant, and to be under
.*-/./. fr.:..^.:;o' 'if tl.r- i.:jil ofMuriay, and in his
*.-•"/ *..' I'.r-! D.itiii-*; Uoss to meet at
',...:.'. i>.*i */.;:'\ oay of June instant, and
.. ■^/•., '-.■ ' }.,'■ '.-,11.(1. and of the tarl of Sea
;■.'•. >.•.•} *.i .' .1 ..'i tb«- heritors and free
•A . •■• '.t •■:*■ .. . 'vj Unoith Forili, to niajxl
- .-■'.«• . \'M' !iii iend«vonz to the bridge
'.f ••* • / \ .-.kK ?♦.'• liJ'htors and frcfhohlc
*>. - #■•."*-* '„•. i|i'. "i'lsith side of Forth
••i- i^ • - < ' r".'i'vouz lO tlie \a\\
'.. l^ ;.'•*■ »'■ ". i».<r- till tnilh* r ordt
- V. *« r *i» tbi in to M-ize upon
< j..*U/->/, y — - arid in ca-e of res'
k /y> V. t\ i\\ f-ncinies, wi'
* I .,v;-r-* 4» • /, .ij,. t,f Kucdi as slial
' ^.;r--^.: ,- r •/ : -z oiil *»\' llu' sbiiv to
. . V .4^ i . V t'l^'' to tbi* said C4
.• ..#v . . /x- - * ^bi'if- under then'
^ ■ • f.\\ i?r.i»M'i'*J ol iho s
hi X* bi ihc rf
. x^. ■'*../•• ■« f #ri #<.<!, t'l i:aose 1
•. . i'!-.;i to I"- ni:ide h
* « II''. r ll.i .1' comr
,. -A ■• .••. , ./'^ «.M Aw ap.iojnli'd f
I,,,. *.g « •• i«u *v.'/ ''f fb'- immI:'(i tbatt'
^t^^^.i.j. '.«; v» J. .'.' t-.<Ii> k'-pt; <;er
irfy».v» • ■ --'i*. '^ •• /'• . '^"* *'•*•• ** "*"
/^. vv r, - .wj> ■
9]
tht Fi/ejJtire Hcri(or$,
A* 0. i6sa
[10
ftliyroi fvf Fyff, l^dlnlnin^l^ LinIitl>^oilv» Pee
blc?s, I! ' ' _ iui, Sui'lin, < 'lackmanan* IS«***-
M^ick, I Selkirk, IVrth, and others
tlici'«i(j itit iikiiFiuU ; yvt the pcrsionai ttbuve>
w^hdt with llieir best horses find orms, with no
umnv of their servants anil followers ns Ihey
eiui triiig" imt npim liuTTsch^rk, tUvy sljull he
lml>l« lo the jiains Jinil [leniilties provided by
tbe nets of partiamcni iij^auist nnch nn d'> noi
ntit-nd the knife's hosl, or desei^ llit- samp, and
looked upon na disalVccU^d p4*rsonii, and 1'n-
vonrL^m and compilers wiih rehch, und put'sued
and punished accord in^jflv; And ordttin the«e
prcMcnis lo Ut- prinlt^d and' pnhlished M lUe mar-
Lct'cnjsi oi' Kdinburjrh, and other placets^ lore-
s^iid, ihat lunw preteml i^^'noranec.
'* Tna, Hav, CL Seer. Ctmo.
** God sav« the kin§r."
Wndrow ob«ienrcs, that ** l!je narrative ofthis
prochination sticus it was fornieil when the
rctfiil.^r Torcea coming bnck toivartis Cilasytiw,
thonght good lo return^ since it rf-prescntslhal
the jti'^urrcclion in the vieslern Bhirr^i is now
grown to du opin rcUltion :'' uwl he proceeds,
*• This proclamation was matter of icr\ gricv-
oiijj rtnmi; to a. ^reat many gcnUcmcn and
nthcts, who, for di^ercut reasons, eonhl not nt-
t end the king's host. All or moist part of the of-
ficers named for that liost, were i\w mo^t violent
jiei*eeutor<* of Prcfiib\ tcrians, and there were
lK»t a few among them, fay oureiii of Po|KTy,
And »on}e prolcKSud l^ipists. This wan [dainly
cunlmry to law and ihcir own lute procfaniation
iliis very year» and flowed from the strenj^lli of
the dnkeuf York'ts part^' in council/'
lie iil^o ii)?;crl!)i in tlte ^amc Appendix (So*
18) the foltuwiog^ paper * writ by a v ery able
* hand* intituled *' A Letter of Advice v^rit by
a g«'i»tleinan to his friend, on theoccusion of his
^oini; out to wait nf>on the army contbrin to
the proclamatiun^ June 7, 1(>79/'
*' Oppurtnnity i« the life of action, witlKiiit
which ihe doe(»e»rt and mo r ' 'S deviaed
counM'Iji prove abortive* i know,
ibut iiir all d«»i^ais, wlocii jm,.i i ,. i>i mifirht be
startled at, then' is no op|iortanity comparable
to that of Boddeu .rm , -i ni^ ul.iilw.f hsppy
4ir uidkuppy, if t1 cat con-
ecm: for inrns <j _ set alott^
and so rendered iinw»ry and inadvertent, fair
|>rrtextM are then likely to lake, if ever ; be-
UM3 at such times, men havo not^ or take not
sure to i»eareh to iIh* iKittoni of tiling, or to
a^ider (hcfn on all NHb/v, and uccordinq; to all
f»r pri'tteol ond futnve titiportance. \ rec«nt
1^ of the p«r-
i9iil;tnd« to bin
^ ' - zm^
Uv,
hiM
iH: led
\y I , - ,iiid
yi tii work
fci I ^ iihuU; way
liir tiieiii. i>t wtiicil i fbail only ssiy^ that I
r namrd, tWd prcfranie to abyd and remain fir
hi5i iiuijeMie*fi ho»t and royn]'
tfiey find j!.*; ane of them, nn i an4
part ihereoi', which l>ein^ fouo<i r^ ...«. .*^%ys
wish ihcV Tl>!»v ln-HVr li'-i I frr'i'tiialJv TiPOt-firia
ttir flic rr' y I
and his km i i to i
finpjwsc tbt»y wui e aH'ectionately meant tor the
^iMMf of both.
*♦ To apply this to oitr p tiona!
thoti<;:h f cannot positiii ! whd
are at the helm, ot any nmiLfhaud Luijirniinc
or certainly conclude tb« tuinie from the ooti
ward flppcitra ace of their : '
sibie that such importni
now f:i)lcn out, may proriipi uj< ui iv
themselves in their cominatuU, as ^^
our, may be n\ore zealous and foru,.,.
well advised and really dutifnl obedicint
as loni^ a^o it wns told me, by a vv'Mnr>
certain ^eat laan'^ behaviour ut ll
nient, Anno 1648, that he would i:<:
all the world, that he Imd Wtrayed them, yell
be could justly nay, that if he had ^ot a hooa
full of Kfold to betray tljem, he ciuhl hav*.* don
no more; so f will not a&sert, with the rhnrcfi
w state fanatics of this lime, that our contii]
sdlors are ronlly desi^ninf^ to introducHi up
Ui, I' " ' (§1
cutch
6IUn^ i;t t »| li>>4'( i:U^ II IlKli' <'l ) trtll (I
may say, that had they the lOOKt real and for*
waril intention of so doittcf, they coubl hnrdli|
have t alien upon moi-e hkcly und favournbM
eouriJes, for that end, than some ot those tbeyl
are taking.
•* There is much talking" of a Popisb Plot, and
if there be sueb a dt'*<ig"n of arlutrary power, i
being* also a work of darkneJ^^ that dares not i
Hault Its with open iaee, and m»ct to go
hands with I he utlier^ 1 may call it anotlie
i'lot, which tim^it work uoderboai\l aniil he'
be (irepared to defend it. And t!»cfe two pn
eiumations, the one for volunteers, whereby all
the Papists in the king^dom are armed, and
called nut to the fields ; and the other charging ^
nnder lii^licst pains, the whole nobility, crentr? ,
and b^ritom to attend the army, under the
command 'of otiicerti appointee I hy the conncil,
lire like two mines t^priin)> ii|K)n the chief W*-
tions of our liborties and reli*i;ion, and we, likd
twds, hear the rKuuc, and pijce upon the fimokc%
but diiicerti not, nor consider what it Imth car*
hed away with it.
*♦ For my own part^ to (five yon my jndg"-
mcnt freely^ aa yon have desirei it ; amongst
all the iJfHevanccH which we have been com*
pbiinin^ so muoh of, llie«e yeiirs hv prist, tlier*
nri' but few, that either bti* ' ' v,
or arc imlc ed of greater \v
iherknow I nny onr Hiep« ^viiimuv i ..|ki > ,jijj
arbitrary' (lOwer have bud occnsion ot making
*.iiih.i r.r.H, . .. fi»\wuds their *-'"'> Mt
-by they have j^ r
, - by ibeiie tw<i%vx
L
3i CHARLES II.
they ought to be panished in ther peraons and
f^ouds, to the terror of others to comm^ the
hke lierefler.
Pertewer. — Sir George M'Kenzie, of Uo«e-
haugh, our sovereign lord'ff AdTOcat.
Mr. Robert CoU^ Advocatas Procomtor for
}Iay, of Uaihousie, alieadges that the imnnall
** By the constrtation of our goverament, we
are not only ruled by laws, but also by cus-
toms, the obligation whereof is many times
equi^ alent to that of our most positive laws :
must it then be a custom, uid consequently a
law amon^ us, that, to satisfy the humour or
interest ot a court favourite, we may be liable to
most heavy burdens, and taxes upon our es-
tates, to furnish him with power to oppress and
crush all that will dare to oppose him ? and
notwithstanding that we b^ow such large
parts of our fortunes for the maiutenasoe of
soldiers for that end ; ^et, when by the long
continuance and eztreimty of those oppressions,
which were enough to make even the soberest
and wisest men mad, he hath forced wars and
disorders of the highest nature and conse-
oueace, it may be, designedly too, for ought
that is seen, and as by no small politidans is
reasonably alledged, we nevertheless must be
obliged ako to come out in person, with our
lives in our hands, and serve as soldiers under
such commanders, as the council, being mostly
his creatures, think fit to appoint: wherein
these things are noticeable, which gentlemen
would do well in time senousiy to consider, if
Uiey l»e indeed content that they go into a law,
lc«rt afterward they repent too late.
*' That whi-n we have granted never so large
taxations for paying of soldiers, the council,
without a parliament, or our own consents,
miiy nevertheless command us to serve as sol-
diers ourselves, though it were but to uphold
9omc particular interests amongst us, which,
thus circumstantiale, will be found to be some-
what more than what either our old custom of
traiting upon the king snd his host with forty
«Uys iMiivision, or yet the late <^er of our par-
liMiwnt of all betwixt 60 and 16, do import.
•* That they may impose commanders upon
«»» without or contrary to our choice or con-
9^U whom if we offer to reclaim, we may be
^1^ upon our allegiance, to obey, as I hear
^f% Mi>i dane in the case of the gentlemen of
imay so oblige ua to serve imder
■tea, at tl^ have done with
_„ EiMaidiu and Marshal's part of
«^ i^wiMgh there are so many
aftainsitbem, and
I UMJ areall pro-
. Jh-oceedingi i^tftetf [»
cannot goe to the knowledge of ane iaqocist,
because it is offered to be proven that he was
actuallie preseut with the heritors of PMh-
shyre, and hade two or three servants with
hitu, well apuoynted and keep't all the rande-
vouzie with the capUine of tlie shire, and went
aloiigst to the camp with the rest of the gen-
tleman of Uiat shyre, which defence doea to*
and kinsmen, perhaps for no other crime, than
their standing to tbe just defence of their and
our liberties, against the incroachmenta of SMne
court iNirasites, or whatever else it be, that yet
his majesty's will bein^ pretended, or at wlini-
soever rate procured, it must be presomptioo
in us, or somewhat worse, to inquire further
into the cause.
*^ And after all this, what is ours? and what
privilege is there that we can lay claim to? If
we will not think upop these things, when re-
presented to us, nor lay to heut our great
concernment b them ; it may be said, wiUurat
wronging us, that we deserve no kiss than all
the sUverv and miseiy, that by such prepam-
tives are designed for us. Are all the nooiUtr
and gentry St Scotland content to settle tkm
yoke upon us and our posterity ? Most we he
the degenerate socoessiun of so noble and y
thy progenitors, by yidding, without at
mony, those liberties, which, with such {
and4:are, they retained through a tract nf ao
many ages, and transmitted intire into- oar
hanJs? Were we bom to be the betrayert or
sellers of our own and our soccessoni birth-
rights ? and so to be marked as the nerpetnal
shame and opprobry of the history or our na-
tion, unto the end of the world?
** As our readiness to serve our kinijps, to oibej
their just laws, and to defend their persona
with our lives and fortunes, hath long time
been no small part of the glory of our naticin $
so hath no less been the native courage, and
resolute boldness of our ancestors in resisting;
and opposing to their face, such flatterers, as,
Ereying upon the ^foodness of their prineoi
ave at any time, by misrepresentations of per-
sona and ^ira, endeavouned to abuse his au-
thority, by forcing or insinuating upon hi#
faithful subjects, customs different from, or
contrary to their settled laws, or derogatory to
the honour, and opposite to the true interest of
kingand kingdom.
**The Caba^ who, it seenos, knew well enough
that their counsels woukl never be proof eitiwr
of law or reason, and so behoved only to bo
propagated by authority and force, had good
reason to obtnide upon the late parliament of
England, that Test, whereby they were to do*
dare upon oath, that it was unUwful to reoal
with arms, any person acting by tho king^
authority, which they, seeing the project^ and
foreseeing the event, found no \em reaaoMblo, ,
far the good both of king and eonntry, unani-
mously to reject For to say, thu no nan
actuv by the king's authority oivht to bo roJ
siatea, ia all one aa to say, tnt it is ImpoiBMo
that Unga can be ahnsad $ and aB ono oo W
15] 1*^ fifoihiri Ihvitori.
tmllie eleitl the iybell, ^ hieb only rvlalei to
icb as remained tVoiii the lios^t,
i Wy Lord Athocat oMaudgeSj that the allc-
"ince oughl to be repelltHl in respect be tbe
A. D. 1660.
[14
iy\ Uiat if a wicked minister design tbe ruin
both ot king and kingdom, under colour and
Iirt'textofaulhorilv, Jt is unlawful lo binder
lim, though it were in our power. If iiaman^s
Plot bad taken effect Wf'ore Egther's access to
the k\n^^ who will judg:e it to have been a
crime, tUou^U tbe Jews had stood to their own
defence, uuld such lime, as his trtachery, iheir
itui'icencri and lUe ki«|j*» damage bad been
I f«jw«s«nle*l ? ibouph Gcul in his mercy and
I justioe provided a better outgiitc for tbcra^ and
• worse end for bim ; a dreadful example, and
which ou^ht to strike with horror all abusers
of their king's favour ami authority.
*' He d^ierveth that a tyrant should rcigti
over himf and is not worthy of the protection
of a lawi'ut prince, that will not cbeerfully ba-
yard his liie and fortune for the defence of his
^r^on, honour, and just laws. But what if
the king^s name be made use of, to acts mani^
tesily contrary to bis interest in aJI these, and
which, it may 1^, erery reasonable man, and
loyal subject is bound in duty to beliere, his
iDi^jesty would abbor, if impartiaJly consulted
in ibem ?
** If this be not impossible, I hope our next
IkarUanat'nt will see to it, and consider what the
tbmier batb done ; and till then, before you
engftge yourself too deep in tbe cange, you
b^ve good reasoD to examine, both what are
the true causes of iliese poor people's appear-
ing in arms, and wli«t they would be at; and if
they be oppressed contrary to justice^ or de-
mand not unreasonable things, you would think^
what may become of you and us all when they
are broken.
** They say, the devil shouM hate his due ;
and to deal no worse with the Presbytcdans,
though they were bs bad as be; I mu^ coniess,
that never a {people on earth were dealt more
hardly, or more unreasonably with than they*
They stand upon a j9cruple uf conscience, that
I Ihey must buve no meddling with tbe bishop s^
« ajMi that both by scripture, and their solemn
oath to Goil, which they think no man can
dispense wiUi, together wUh an opinion of more
sensible benefit to their souls, they are bound
to hear none other than those of their owir
way ; which being granted them, as it was
once the utmost of their aim, so, no doubt,
WOitld have as absohitdy secured tbem to
peace, and obedience to magistTaies, as any
otlier *-'''' ' italsoeycr: but this not being
aliowi L >y , lor avoiding public oftence
and the r^acn oi tbe law, ■secsnbled themselTes
privsK'ly in houses for healing thfir {ireacheni ;
wbidi, ail>eit the same be toie. openly, and
without either cballfiige or punishments in
J&nghuid and Ireland, yet here was looked
u^tU u io ndtfiiious a crime, that strict and
Ctevert acts were immediatelv issued foKh,
lawes and acts of parliament heritors are to
assin the king, to punish rebel Is, and are U^ ^
enforce the ktnsr s^gainest rebel Is, both which
tteccssarbe impfys as the nature of their dut|
bouse, apprehtndeil, imprisoned, eonie in <
prisons, some tortured for procuring confl
sions from them, sotne weak or sickly perse
blocked up, till they died in prison, others 6ne
in great sums of money, some wherecif paid
again and again, to the great diminishing ol
their fortunes, and detriment of their |Kwl«rityy||
others not paying were kept still in pris<
some whereof have been prisoners many yo
by past, and are yet so, who never saw a neM-
conventicle.
'* Thus they wer© constrained to betake
themselves to the hills and deserts in the tiehli,
tor shunning of these severitiec, for which they
were more cried out upon than ever, as pers^mi
not only disobedient to the king's laws, ba~
designing a rebellion against bis person an
authority by these Bekl-meettngs. Tbey, lika
so many Roman vindicators of their liWrltc
and rights, knew that desperate disease
required dpsperale remedies, and therefor
thought no Imzard too great for tbem to vn^
der^o, for preventing the bondage threatene
a^inst them and their posterity ; while we
like so many asses, crouch under tbe burden
He must see to bis freedom, he to his life,
to his fortune : and though our endeavourp iq
those methods befool us never so ofWtt, yel
we'll sit still and see the public toter^t sinki'
rather than think of another wav. If our
wounds will not cure withont pain, weMl ler
them rot upon us. Hut behold tlie end of thi«
sure dealing, of this thin skinned and elfemi-
natc tenderness. Fy unon it ! it looks as if
this generation were made for no other end but
to be tramoled upon, then destroy ed, and well
to deserve both «
*< Upon this head, the then armless multi-
tade was pnrsaed from hill to hill, as so many
traitors; armed men sent against them, bj
whom many of them were apprehended, aome
wounded, some killed, some imprisoned in cloae
prisons, some tormented, some sold as slaret
to tbreign platitations, though by tbe Provi-
dence of God, delivered in a strange way. to
the shame of their enemies. Some of their
women* both old and young, most barbftrouslT
used, being stript naked by the rude soldiers,
their oblb<» carried away, and they lefl in that
destitute condition in the ones tields. And as
if all this their patient vnHbrtDg, had server 1 for
no other end, but to mcense their adversaries
fury and implacable malice the more again si
them, as a more eminent proof of their destiiie
at them, they mised a great army, with %
sumptuous train of ammunition and artillery,
to Aghl egainet the very i^^nd of the west
country* as carrying alooM with it an in*
fectiottsprf-*^- *— nn air, whereby other places
might In 1 ; f^r the poor people in
the mean u,.,.^ ,,^:i» all sittitvq^ '^%jtwb^^ Sa».
V
m
32 CHARLES IL
[Hie does, not n simple! comin«f to the
liOet, bu4 «nc rpiimmiittr lill Ihc coL'inies F>e
defuta ; hut so \i is, that liDthoiisie did not st4i}'
with tjie host, but came hofiieaud bq is lyahle ;
will, it' this vttiv allowed, the net ef pnrliamcnt
*' This their host mainly consisted of b.ir-
haroua liii;hlanders, by whom, like as ttinny
•avftges, cruelties, opprcWiotiJ?, pUuiders, an<l
i»lher horritl ahuses n»Tc exercised npon then*,
iA)i3 g^reat, villuitirMt^ and sihamerul to be nnmeii,
hy 'uiy man wfio owns himself a country man
i^f tho»ie who eomuiUti'id them, or of those slate
ijiiiiwlers by whom i\wy were siuthorized.
** In llie mwin time/ by an aft of non-ad-
ilressesi^and aoothfr otlnlurcommuninfi:, where-
by tt is unlawful for Ihu son to gfive a bit of
hrcadi or lo speak to his father, or tlie wife to
ker husband, thougrli lying' 8tarvin;j at their
doors, all access by supidicatton^ or otherwise,
either by ttiiemadTes or their friends, being- cut
i>ff from them, either to his majesty or his
council ; and whatever acts of ^rarc his ma-
jesty w*5 pleased to sicnd in their faiourSi the
isme bttinf* either so mfnced and clogfped, or
wholly sappressed by the means and power of
tl^ebinhops in the council, that they wor« alto-
gether depri?ed of the benefit thereof, as was
done with a late order from bin majesty, for
liberty lo them to preach in houses : and after
all this, a proctauaation beiog' emitted, whereby
it is declared treason for them to be found at
iho&e meetiufjrs with any ajms, and the standing
forces bafiug' received "orifers of tire and sword
tgainst all that should withi^tand tbeni; which
bein^ put iu execution by captain Grahani of
Claverliouse, to the effusion ol much blo<>d, and
the same measure being declaredly appointed
for the whole remainder of that party ; let any
cober and dLs interested mau judge, if, with
that wijse and honourable counseller the earl of
l|»haftsbury, it may not rather be Uiong^hta mi-
ractilous work of God, that these people, havings
the hearts of men in them, should have sitten
and suffered so much and so long- ; than be
4hau^ht sti*ang«, that now at length they ap-
pear in arms for their own defenoe from such
Utter and imminent i-uin ; or yet strange, that
f ucb numbers should How in to them at such a
aick of time, when bifih those of our own no-
bility aud gentry, who ha?e so much endea-
f oured to reprci>«Dt to, and convince his ma-
jesty of our grievances, have, by the forgeries
and iniiouatious of evil couns<^llero« liemi so
<itleii, and yet are^ not only ti>tally trustraled,
6ut shghtingly and misre^-iirdfutty ti'«»ated, as
persona oppo#iile to hb majesty ^s inteit^st and
fin.-; — .. mj4 also by proroj^Jing '»f *'- i-'-.'j;.
iment, mensho[»4is of helj , ,
^ . . . ■ . . .^j liberty or reii gi»m, so un i \ - , : .- 1 i
tbem, and the succession of the crown, as well
bcrc as thur \s Ki\ Vikt \\ to be dcvolvt:d \ipun
ji known vt.
*' Are I (0 bestow your a*iiii»»t-
mim of alt tbe!»e op-
_ I link that your loyalty
•lyagvth y^^u w tZ do f Virt bctofis you go» I
1
RhonlJ be eliisoric, the coantrey irtideffefi(lil»j
and n;bills unpuniMhetK
8ir George Jjockftart re|dy8, that tlic de-
fence atandii relevant notii ithfltaniUng of the |
answcjr, because it ir not contravert<Ml wlial is j
woujil have you answer me seriously these twc*
or three questions.
*^ Are you sure that your loyalty would fortify
you to suffer patiently all tbose things, if the
burden were on your own shoulders ?
*• Have alt these arg-uuifrits, that you are so
well furnished with, against implicite failli !€►
churchmeu in church -aff^urs^ no proportionailii
weight at all aqpaiust iinpliciie faith to states-
men in state -affairs? Or can you not say thai,
the streams are muddy, nuless you coticlud^
the fountain to be so afso f
*' Who bad grejLter respect to the king's ho-
nour, inieresl and laws, tnose, that witlKUil th*
conilitions required by the law, in obedt(>nre to
the act of council, found caution of law-
borrows for his majesty's safety ? Or they, vrho
in obedience to law, reason, conscience, and.,
their allegiance to their prince, diti altogether
refuse it, both as a thing wherein the law could
noi be answered, and wliich they found exceed*
ing derogatory to his majesty's honour, dignity
and aovereigii authority, which our allegianca
obligeth us, * with our lives and fortunes, to
* the uttermost of our power, constantly and
* faithfully to maintain, defend and advance _
* against all and whatsoever persons, power or 1
* estates, who ^hatl presume in any ways to prew J
* judge, hurt or impair the same?' James 0, i
purl. 18, cap. 1, /
** In which, by the way, it is worth the od*
ticing how toiserably Jhose jiatrons ofsupfv
macy, those champions oftlie arbitrary leli
law ovei^reacbed and faltred themselves, li
tliistheirDOtable legal invention for supplj*
the room, and saving the credit of their il6r
bond, in that, while they are coniendinf
much to exalt the king above the law, the
the mean w hile, not only make him a sr
cant and defueaucr of himself to the lai
subject Ikim to so mean and huioble a c
of necessity of supplicating, a degree so ^
suitable to a supreme governor o^r allM
and in all causes, that not only Jie is m
of alt kiags, that ever was made, byf
counsellors, to stoop so low, and likeli
Ust ; but even amongst bis own subjeq
are many thousands, that would thiw
far below tiierii to hiwborrows of aiidf
majesty, at lea^d Uih council declaf
ready to take by that act, yea, whtf
much houour to maintain^ as wr
them disdain the very thouj^lit of au
ticc. We may t*"''-"- **'*t> « u.i»
cuuucil Itatli bed
thf^ir actmgif, wti'
their choice*
** Now this waa a prodami
t I llOW C41I
t. and iotei<
a^d iu tUu;.(^ f uudatneut^Ll oUx^di
tlie import of itie acbs of parliament Ijpbrtlcd
upon, M hetbti' lliey be suflhcieat to found aue
dittay againc^^t ilt'SurtJii ^e^ or not ; but ihc
by our wbule refireseDtatiTes have unani-
mously bound tbems^ilves and us, and their
and our siieeesson*, to the perpetunl and nual-
terable Enaint< nance of both, is eiideat tu all
that will not wilfully sliut their ryts,
** U it for us ib'en, lo take upon trust onr
kiu^^s mind, honour or mterest from such law-
c'ivers ? Or if we Jo, may vie not allcri^ard l>e
found aa culpable in obeying, as they in com-
loanding- f
^^ Jfihis prevail not, consider but these heads
of the oatii of c^oronation, ivherewifh, and
wbere(i]H)n our kln^s iisceiTe the crown of this
kin^d«im, *■ that tliey shall rule the people
* c*rmniiired to their charge, acoirdiocf to ihe
* houi^nrahW litw> n.nd consiitutions received in
■ thii* reaUu ; that they shad procure tn the
' utterini»!<t of their ]iowt'i\ to the kirk of Ciod,
* and hail ClmKlinn people, true and [H'rftct
* peace in all time comiui; ; that tbey shall
* forbid and repress, in all €*sitntes and decrees,
' reift, omire^sion and all kind of wroi)i>' ; thaL
' iu all judi^ments, they shall command and
* procure, thai Justice and if4|uity be kept to all
*■ creatures w itbout exception, a^ the Lord and
* Father of all mercies be merciful to them.*
James 6, parL I, cup. H. Think then ho\v deep
it may draiv upon their score, not only before
God, but betbre mau, who presume to take
upon them to advise or persuade his majcsly to
act, or to act themselves under colour of' his
authority, thing^s manifestly contrary and re-
|)ttSfnant to this sotema oath of God, and chirf
*uiHlamental hw of our nation ; and of what
fatal consequence it roay afterwards prove, not
only to tiiem, but also to their abettore, aiders,
cucoumgm iu such wicked imlawful cmmsels
and practiceK ; at least, if erer Scotland be sn
faappy m to return ag^u to the uabiass^d rr^ht
use of law, reason or coascieocc ; and yet more
ca;peci:ill^, when, to the conviction of all men,
our king- is of hims«lf so naturally projiense
and inchrjaUle lo all ways of justice; anil cle-
mency.
'* his known, that his majesty, at his restau-
ration, declared bim^tdf resolved not to alter
the govfr TiriLf f.rihe church thenestablishe*k
ItiBtkL of late also, a plenary imd
iinivers . ^ nee was granted by him, iu
favours ot tiio uonconformi$it«^. Thise are the
uattTe eiTecls of our kfn<];- s mcli nation, ^ooiJ*
nets and clemency, by either of which all
ihcse immineut mischiefs might have been pre-
vented* Who tlicu were the obstructers ?
Ought tliey not now rather to be searched for,
looked upon, and dealt with as the greatest ene-
Que^ of king, people and government, tlian
lusinted in the prosecution of such pernicious
counsels as have oncasioneU so imliappy and
so uuseasotiabte a bieach in our peace and
safety ?
'* Shall I ever believe that bis majesty, who,
of his own nature^ is so wise and so just a pat-
VOL. Xh
only def^tiee is, that ther b no crimiuall ly-
hcU raised aguinest the patmall as a deserter,
bul simplie for byding^ trae his majestie's host
leru of civility and obligingness, and who
ruleth by compact betwixt him and his lieges,
would ever have forced commanders upon the
nobility antl gentry ? ei^pecially at a time,
when It appears, be oetdeth so much their
sen ice, and ibey are so willing to bestow it.
When the French king, who hath no other law
for his actings but his own w ill, yet dotb not
so much as propose any officer to the gentry,
when he caVleth them forth, but remitteth that
matter w holly lo lot.
** Can it be supposed, that his majesty, whose
life, honour and kiugdoms are m bunted for, by
plot after plot of these bh>ody emi&saries ofSutan,
the Papists, the greatest and most insolent ene-
mies ofmonai-chy,and the most incurable plagiie
and bane of all humnn society, and who there-
fore commanded lately his proclamation to be
issued forth, for apprehending or banish irig
many, and wholly disarming all of them within
all the corners ot the land, would ever not only
have restored to them the power of their arms^
but have nut great numbers of bis faithful anil
hoti^ourahJe Protestant sulijecLs under some of
their commands ?
'* Can any man think it his majesty's will,
that Bailie Baird^s son, w ho was never a sol-
dier» should be cornet of a troop where the eati
of IjOthian, earl of Dalhoussy, viscount of
Oxenford, lord Torpichen, Balnierino, hi\ are
10 ride as troopenai, and where his grace the
dnkeof liucclcugh, when he arrives, can, ac-
cording to the procjamntion, pretend no higher
than the tight hand of the Jirst rank ?
** And since we haie such ground to doubt
of these, and it is so well known, that bis ma-
jesty did not of himself intrude bishopt upon
us, but only, by the selfish treacbcry of some
who were employed to secure us from tliem, he
was perewaded, and made lo believe, that that
governmenl would best agree with us : who,
in reason, can, or ought to iniagine that it pro-
ceed eth from his majesty, that his subjects of
his tlirije kingdoms should be engaged in bloody
wars and devastation of their fortunes, wherebjf
they may be renderetl a prey to foreign ene-
mies and lurking Papists, and un6i to serve his
majesty iu n more necessary cause, and of far
greater concern to king and kingdoms, witli
the uncertainty of what further ruin these
evils may grow to, rather than part now witU
that ffovernmeni of the church, when he sees
how far he bath* been tnisinfuriued concerning
it?
** His majesty^s both mind and true interest
being thus cleared, this then, in plain terms, an
11 consequence clear enough of itsetf, must be
the true state of the aifair, Duk*^ Lawderdale
is obliged to the biiihops, they helped well to
uphold him when he was tottering, and yei
help him, and therefore we must uphold them,
though we should allfaH in the quarrel.
'' l& the cause then sufficient? Caa yotL
C
I
I
m
32 CHARLES 11. Pr&ceedingi againtt the FlfeMn Haiimr, [W
\mni\ royaU siaiidiirt. uhich is altogfitluT dtsttnct
ln>rii liie crime orileiert, und the^r are screrall
I defences coropetcnt iq tbe one cas^ ihut are not
Itake }Otir life in your band, aud !£<?curetj re^t
fyonr conscience upoo it P 1 hniiiph vf>u could,
)'ou Bure that \m gain fihRil be yours?
fAnd« prav, wliether was it interest or con-
Ptenee, trial made that statesman, wbea he ivas
llast amongrst ns^ cndearoor no much to have
Istriick in with the Preabytertan i>urly« those
itebels a^inst tile king and government, when
Tlie saw tliem growing so fast, and so difficult
[to be borne down ? Which iikelv Lad taken
t effect, if he had not been checked m tht^ bridle
lit hi^ first starting aside, and so ()cbuvcd to
ITcnpw his cngatfemeols, with fi^esh and evident
rUmimonics ofhisreahty* not tinding it fit to
[ tinhinf^e himself of the ouepai-ty, whire he was
yet unsure of the ulher*
I ** If Ibis llien he the sum of the matter, that
I the bishops serve duke Lawderdale-s interest,
iind we therefure mast ierre the bishops in -
[lercst ut any rate, lest othen%ise we filiould
weary of lieiug tre:id npon ; all I can say
t captain Carstair^, Baihe Caroiichacl, the
[ town- mnjor and hiii men « are like to come to
I BO fjumll credit by so noble and nunicrous n
\ traui (d' assessoi's, as the whute nobility and
' gentry of Scotland. However on sohie ac-
counts, ihty must yield to them the prehemi-
, nence, those only haTingtheadiantage of profit
for their Ktrvicel bcint^ mercenary n^^ues, and
^ bavin ^^ others aUo under them to wait ilieir
• commands, while these hare the hon«»ur to
1 testiijr their zeal, by far greater condeaccn-
I dency of serving under command, and some
under those theyliate, eome under those thmt
hate them, some under in^igttificant green-
, lioms, and others under worse tliau some that
«TC, or have been their hired isenants, and all
this not only gratis, but to their great ct pence,
•ml with tlic exposing of their Ures luid for-
101185.
*• ir you think this honourable for you, you
may be doi n g a& m ueh , an d as si I en t as any , a (be it
€n all the forenamed gruundn you have so jtist
snd handsome a way to retreat": if not, ] fi-eely
give you my advice, that, n't 1 doubt nntluit
you will liotQ be as lorwajd anil cordial as any
man, in testifying your afTfcdon for the rt il
tnaiutenance of lirs mR)v^iy*ii authority ; go, if
you lind not yoursc}f indeed conccnvrd to give
proof of it in iliis ininrrt^l, you di«enjjngt!your-
•elfin tiriic; or it otlKTwl^et that yt'i vim go
0Ot out, nor do any thin^^ withfi ' ^ ^ ii
©f tahojurt\ upon tht* iorefiici i
that, by a bud picpanilive, yow .,< ;,,„ .,.,,,-
cnsion af an irnrparsible dunnige to your coiin-
Iry ;. which, at snrh a time, wore { nf one of
those shires that are called out, ymi itjay be-
lieve me, I wotdd think it my duty and honour
to do, though Mith the greatest hn /.a rd^ and
Ciiuugh there were not another to sercnid mc .
IVhen the public inteiTCSt is like to Huiftr, by
tJie ignonitjce, neglect or coward ici- of all, hV
nehtcth double glory, making all Uti uiUioia,
proper in the other, and cr ht*i\m
ther own naittre are */ri>/*jA. mh\ *
not be extend it tiryond the prectue tcmirs Ml
and all their posterity his debtors, who ^teppetk
in at such a uick of extreme Deed, with oppor*
tune help and assistance,
** Take courage then, and regard n«>t itieeil-
mour of court sycophants, who live upon tbeir ^J
country's ruin, and trill l»e crying down audi ^M
heroicK acts, as opposite and prejudicial to im ^^
majesty'^i authori^. But be you confideot*
that it Ihall always at long run, be found «nd
seen that lie is the best friend to his king*, tbat
is the best friend to his country, and ti» tlie
laws and lilierties thereof, which knh kirig anil
parliament have declareil to be the birth nght
and inheritance of the subject, and the security ^|
of their lives and fortunes, Charles 2. Pari. 1* ^
Act 17, and that these two interests are us in*
dividable in the body politick, as are thoi»e of
the head and the body natural.
** For what is further, consult the scripttm
and your conscience and be fully perswaocd la *
your own mind. For me you know, how
much and how often 1 have contended for epta* ^
copacv : But now I have considered tlietr ^|
partial behaviour in the matter of Danby und ^^
the lords in tire Tower, those arch enemies (J/foor
king and gorernment, I see them lioth iliert
and here so knit to the bias of the courf, that
they will rather sell their souls, and the wbo1«
interests of the kingdom, than not swing to iliat
side right or wrong. 1 see them gencfnlly to
be men altogether set upon their own proffit
and advancement, and that, when once they
can make their court well, they little mind re*
ligioD, or the care of souls. 1 see they take na
effectual course for curbing of profanity, atu|
that, ifa man will but stand for their grandeur
and revenues, they easily dispense with bis bein^
otberwise what he will. I see, that at moist any
scHodaloits fellow that will own them, antl hatu ^^
but an M btfore tiis name, may ha^e a kirk ; fl
too rauny whereof I know, and 'more here than ™
with you. I have considered bishop Sharp, mm
their head and last introducer, whose rewftrd
hath Imtu terriUe in the justice of Uud, what*
ever the actors have bern. And 1 have coo-
fiidered bishop Patersou aK the tail^ whose re-
wanl is, no doubt, waiting him also, if he men^
not his manners. 1 huwe not forgot their
rnjcl, arrogant and blood-thirsty stopping of
his nntjcstN ',s grarious bounty, and keeping up
of bis n ni!<'(ion afWr the business of Pentlaml,
whicb^ with their torturing and hanging of
the p«tor peojdt*, aOer tjoarttrs given them in
the tiehU by ^ieniral Dalziel, as it was a singit'o
lar reword to him for hi^ good service doii#
thc'iTi, so may it, to all |ionet<t hearts, be as
[lalpiible, as it is an odd example of their faitb
and ninnnftrs. I see the very oflVscourings of
thf rj\rth employed by them as their trustees
nnd hrroes, fiir propagating of tlieir conformity,
ntid sotiir of thvni, ihoiigh base all over, and
de%pir«bli* above all e.xnression, yet owned and
caretntd by them, Qi mav c fellows, and chief
tl]
/or Abimcifrom the King's HaL
A*0. 1680*
rss
wliieh tjjey are lybdied, and cemiiilv the
' <lffet»C4? pr^-iit"' T^ a lotalt dcfenct; ftgtuiiest
' ihc k^iC!ll r.
Hy Loy^ ....,,.,.; 4!u|>l3e«^ tbut abytlin^ is
KproBslie hn|iUett in iishitvhiig and viilurttu^t
Of no man cane intVirce but be that byds, ami
pIhh miiji'fii'iti's aiUociit insists, orcordiug to tbe
tfiiabsuitiptioii^ Ibot be did reiniiirie and abyd
frno tbe hoii Ibe day of Bolliwei iVijfbt.
Hit Gear ge Lockkuri^ adbearmg' to tbe de-
fence, craves a diiititictintcrtoquitor, and farder
dleadges ibattUo des«^ttin|^iudc bein ly belled,
. yet the dittay cnnnoi be put to the knowledjie
) of ane assyse, becaui!»e the pannaU did obtoiiie
ji V ' .lis of Montrose, cap-
1 ids, and conunandet'
c-j ijM' I iniii MiVM -Miiiemen, whtr u[iODthe
Lconsideraiimieii tberin mentiuued, and parti -
VcuUrhe that the pantiatl ivns tender and vuli-
(ftiidntaric and not able to atteud, nnd that he
^Lade left three vnU apiK^yoled horssetnen to
iltend his ninjesities 8frviee> he grants him
lioence and Ubertieto jjne home without trouble
r HHiUeatatJcm, as thcsnid pns^ at lenj^-th hilars.
'|>fOmoters of their principles and iuleresit: yea,
io Uttk choice DitiKe ibey on this bead, whe*
Iber as to Profanily, Popry, Atheiikm, or what
.eliie yuu can think on, tiiat» for uug^bt tliat ai>-
rpears, a.^ many devils out of bdl nould be
.Welcome to them, to [irop their Dajj^on of pre-
Jucy, and to be a »coiir|ft- tu the tanatica. 1
if^i forc<2 and the rigour of the law are their
two g^{id pillars, the Jachin aud Boa^ of
[4lieir tctuple ; and tb^ their whole poviert ^^'
Itlerect and endcavouru are 80 joyutiy ami in-
f tirely bestouctl upon the auppresfcing of con
tiTenticlea, and for hindriu{^ the pnachmg ot
L^tlie ffospeif by thitse of the nonconformist
j ^party^ which renders it to me dreJidiuiK' sua*
h|iiciuos» that their cause mu^t be but so and so,
I M heu themt^lvesjudg'e it tiie tt>ain support and
|, security thereof, that it ne*«ir came to a fair
i lieariuif ; for the truth lit, they reckon them-
^.ie)vc» undone, if ever the pco(deiftt leave lo
.liear these men, I see, ino«i of them look
either \vjib allection or indirtWunry ufion l*o-
[.|)ery, that the PupisU ibtui^eht s labour them
'ethau any other ^ov^r hsm ■ t \\v-A by ihtir
line** in pro2*ecnUn|i: t i ;ireiheoc-
t of much euUo in - and that
\\mpft much life to uU tbetr imsichievous
PtlDT tbe hope they find of \et ascending
I , up on that step of their hierarcby Mmaiuin|!:
ttinon;:^! us. Whereat, on the Other baud, it
^^^\«led^^id by all, tUut the
il it Hill, it is certuinly the
^bcst iriiiLkJ) Lk;;.iio^t I'otwry in ibe world j the
total j-ootinj^ onl whereol nmor>;^t uu, now
ir the diM'ovei'ieti ue have, onytit on many
ounts to be I'Htcemed the gruml inter<Mil»
herein tlie powu^r, wit and endeavours of
every \^i^ui\ subjeci, t^vi-iy i^riod couttuynian,
and exiiry ^^'k"-! < 'l.t ,-_ii.,:. vlnu.M um i.iujin*-.
Andt in Hut;, > 1,
ihefaiai coiifcr^ j
meat of biahopi amon^t u», ^itk ike apiiear-
(
His Majesties Advocat re pi yea, that those
^entlennin and heriUirv *- i ' 'v the custome
of ifie mUiou and by *- iticm of the
coimcdl, nideidfifcd til liu...,. ... lung's host,
to asciat and enforce as «ai1 is, it nrninoiia
the power of the marques of Montrose or any
commandiT whatsoever to relace them from
this duty, for as they carac not thrr by bis or
therjmtboritie,so*ej"uaeatoo' ie/
and if it wcr other wayes c^ , ab-
solutely disapoynt his maje^tiii* service, w'he^•
as they are choised not to dispense but to
command andtherfortJiey are •> extra <>fficium'
when they dispense, hu\ if the sicknes waa
such as necessarilie and certainlie hindered
tktusie from goeing on, it shall be found r«
levaQt, which is alTthat any gwd Mibjcct cane
crave to be done in his taTours ; and this is not
the grantingr of a pase hot the reroittinjf of ane
duty which the lawe exacts : and by tlie prti-
clamation wherby the commanders wer ap-
pnyntedi it is deelaired that such as oanie
not or deserted wer to be lyable, so that they
wer to knowe ther duty by the proclamatioo,
and lion who commandit (but the councill)
conid warrand ther deserting.
8ir Genrge Loekhart duplyes, thatthepannall
op pons the passe 'and the nctH of parliament M
I Y bet ted uiKkn ordainittg^ all persons to enfoi-ce H
his majtstie againest nottor rebel k, bears thst
exception, unlestie they hare ane reasonable eX-
cusation* and ther cape be no excuse more
reasonable then a passe from a commissiunat
oBicer, tmder whor^e ccmdtict and conmtand tlie _
pan nail was requyred to serve* And h^wyem ■
were clear aa * Grotius de Jure belli et pacis,' m
thiit [qu, not! only suprenmc commandcTs
ance of what is tike to be tbe end of the pre-
sent ; and that our nation hath drunk in nuch
ati inbre^l and indelible prejudice against
them, that thoue^b the&e fourteen men were as
nmuy iraints, neither can much ifood he ex-
pected from th»'m, undtL-r that character, in this
place, nur yi t they ever long settled without
blooil and coufu«iion,
*' 1 wish only the pr- '"^ ■ '•- m ^.-ij f^\yf»
some pithy »nd incot/ of
their rt^al uffevtion to !»;. .....,.,,, .„ . .iful
sovereign^ (md to ttie true line, m so far as by
t*oj>ery it is not interrupted ; with 8uc!i a
proof of their aljhorrence of episcopacy, as
mav make tUeni take up an antipathy at their
prelatical viay of having no sooner power ia
their hand«, but inttuntly, with oaths, tleclara*
tion^^and bomh, tiyiui* like as many wild cats,
in the throat of our consciences ; and that tliey,
Preiihyterians, would rather lake a more jfos-
pel wuy of instructing us in love and nifvk*
ness, at^i m imticrice watt, till by the use af
means, and tltc»r affectionate canisgo towards
1
us, wp be won to the disce
^ilon of those (hing^ji, ihM ar
wherein wedilVci% -''"I "t'^
say, Amen. Tl.«
and peace ; and i
prelacy and ^^>i^\^ S*w
perswa-
tnenttls,
fiij^esty
V , tmity
J
-»4
Jill iiMi nriiniir iifiina^ '.loiier :lii*r rfmnuuiii
jiu-r ^-rrtnt luwev. xa\i Ttie ^JiiMuentitnis !::>
Linibc n im lusiM! ne't'* -iiuii«» l i^-tiiar tiui
uie nurqiiis ir Htmimife. -T'lti » i TtHTiiii] n
.r^Kii UiUDur iQJ jfnuuiui juii rurvnn iir ii«v
SUttSKItttr -r*!™:!!. -nilUU JUi*** n^HUr-.i lU t^H"!
iiisMS luieaw Her luue -Jeui ^iint:!efii ruus«:
rur he «iiie. uxu i :aiiiHit jr imu^ruMi ir ji-r-
juinv*! tuu .ic^' la^ixnr tie luouur n «n'4i ju
ouut-^e u nmiuuHuimu. niivsRf vniua xranc
a«aM» 11 Qe ibinmeui uiti ii>^iiiiiL*a if Jis
aiiiNstXKt -ier*TL'v. su tun ijer « in Hiar Tnm
*ue DU-JiiTembaL'e ir^*a. inu r aumut w
«r»nini\-#«TTe'i lui ue iiunmis» n* HiimmsHs ip
luv "iiniuuHfHiuai »ine?r iiiipr jt;r*2 mifsvHi
lUll IMHIMi'l IT Ji» TOIUI U Itt -tlOlllcnt ilt.
JUII -Till \i bk-^- a-; ui^TrumuGUiiiu! m
ubiW!Ttuit> . nil I r»>r ufuu^c ul laiiiMi liia
Kift*>«^. rruiici Hr Ufn :u tiivM! lumtsiiaiey
imttr 'n«r "inuiiaati. ^kihiuu im le *2U»n«r3iir
.i\i.'*i«*'. tiu N* lie awes uiu .nintunim if ul
'.uiu<ii>. leiuvT ulow««i ni ^ffr^ rjimniaiMuiiac
■imirr- uiiiUf inH:aui:uuiu» ii;&i ▼v^'iiiiNii-^lie
•!utu:iit'«t. liii av lu 'V'sKTaim m :oiiiiiiiMUiimc
iini'rp*. % i^- at V nurii wi ut n 'Ui» tvm.
»-u*.r! # I'.'iit t»i*-" writ--. -Ukt lein^ ivUlilUC
uurK •r»u:iii— Drii or oiMrrvr tini,r!r> u ^rmv
«QU8«*» *-i!v':i ver i«*er xMiunvHrrc-a hit
iraivirii u :u«:jfu»n. »n*' ti*-" im i»'» CTcjse
'Cysc 'J %.iim ntv rer x'^uJit*^- L ■•■?*«» ne
narrv..-:' -. "U.mr»»'j« »:--^.aiiiiiv lI•-«^'u•J•l"•••ln-
llaL• .r ■: Ufc -flv^. uxu t> •ifin.»«i -w us
»r«^'-fl Ltr Kk! '2-jA «r;» IP -■n.^t tiieu 'llt;^*
n»ii!!r'ut-i ver ■»»*rni»iauu ^u iiu uiiMir iiah
.t>rr:u.^ . ^^ . i ; *i»^ nnii i /-jmiuiMMvinc
riv -1 *..-.^u -.yc*:**^ Jill racontr nerKm^r in-
r.c-; ? i\- •••" r vr i"".l::««* u awtt »av
Us.- :i :.»•! ■^■*- V- : •. viir«v tis*?, *»-
■•- :i. . ■ . -^ :. '.: -'"ws.-i 'ti'i:'.r»»>*f. .f— jilur
I :. - .tj<^. i^«. :::^ LiU I'la lUlcMIbb
ft'r- .:• "• •: : — '^r ;:.'-»i. Ur!»e w»-ii U'Wtv-utfi
.'.'7" :. ..^ :. »»■«• ?«uaia«r«i v^ia i_a
: i-' .' «. -.-.t.-
u:;:e
e ii- •■■ ■.. -. r- -r, — . Z r »..
■ .. ■• ■:« ':■■-. - - ■ ■ : .■ r-'M-v-e
f.. US' ".i " n ,-;• ,T- . ,r. ... ,1.
usr.u: . t r'.r*-'! *•■ . . ■^-.•:. • ,.' .mnu":
»T 2is iiir-t .:•■:■ ... rannrir ■ I-: — -nii
ain. A T 2i *■-. fill tr. ".e snii'.:. -s '.o-
■Hnr». -fiin «v ■ .,. •^nn'-s .jznttie .-mr^^s fMjur
Jr-~ ^B* »niv Tme-i ^*snita •>iii« wines.
-niOK ::itf L-umir mit uiniBiiiiiff
i'i. ZiH^ jtf laiiis ii?t3 imt ail irfuflr kLMiiA
11 "iiiir lar'niw! in* w ih imttflr^iniiit v.ca cais
■Rjniixiiiiix. *liat :uH iniiiiwiB 'ii; a-v^iilm m^^r-
istff. uiii tj mr! i«nT-«: mariiey w»r u.»-
iiiliii ^::(mrvi. r!iH irMrBmannu. Jitc Htsm^
•inmuc ic iiH nsmmc •t'ii^s if C«mnar. vtiiidk
H t'.e ji!3ii nirrnrt ifix»s hi-]"^. li'i c Msar
Jtt. EiRD lie iii*finiKrf nniiit loiiw 3i die
'<au«v«tie*iir^ ir' ui ubyvf innn tne '"mi i» OK
iiuniiic in Iim «u<w luis if mrtmneni^ j^n ifttt
TT^e if "tie iiuii;iiur ^iH^jf -a :tie pbc'MS rf
i:n:r rallies iii* ir«r. 31s iiu]irfBe anile nr
AmiiiniT iirr^s ir jnniKiIe*! vmj . inc jil iiiB
iUDHwa n yjix if noeiliini itfrvrrzr 'Haob
uiu iRRcsn. 'V'ltiiiiiT iihain!TXfNi if lenuiraL
v*sr yiiw"^T!'i 19 Hteait ^luft 3iu{t<!Kii» himc :
luw ji» nuiesntt m^iiir t iciniuiii;
IDH iie villi* iHi ikHB ir luriansKiit Jiaiiip datt
*Tiniiauin] 11 "iiiic le^r ruiHiiniiiuD it'JUi mi^
inB. r 'liiipE "u •CEoniflr He iefiHiiitffai Mem^
iiM aiiiim mi inuii ^nar •muixps jiui ox-
leBseK imi :ue na^e if x won !br •^awBO^
tt lie n-rTior«.
w. 3'* lis naii*?t:i-* n-KSTOB jct'if "iBiiBm—
line, tie imniuuls ur* kk'iqTO» iiiiiiini jbA
uttiii I rmiaane me ssic^am •ft unvvs. «^
He sume s nny if 4Ut.*u » liii SK hhk ou
DiuvKitr 1 luR.' io iiar -liii in^ «tr jiic nr-
^uailie ir*"M2n. -tk fucsx n -tiein yi <Kac •mc
iier -Rfr^^ims mu lur^vs uii tna^y anx *iai
nuiMQi^ iirst. inu m rmnoi Tmm^ ui ttos
in«wrTe»is^ li me nunpc -sRwcTailie *'iin^
lu u'^zieniv riiinnumi& ul 11& ;uii^«^iiir^ in
Durryns ue ^aia ics.
iiif. 't » irfvrr't jn w irnvfoi. imr linmi ;li«
"^'ne IT tu uuescm inir*HinanuB. Mr* L^ni
'.'uov^Iar ixrnc •nsii'-Hiain'i ii ii» niif
7"s ir?T-»- -jimisil He rimniiiii ir vne raTiv .aT
7' :*. im! nui Ufef w^r rimimaiei if itiiwii
:>--: nv-riiu:^ lu mu K>*m, riH-iusr imansjait
uii-".:r:rTi::r ii.r»««s rr L e«.ter uxma. 11 -ny
..rn ^.-'TTUTc "»"• 'nYuize *2niT'HMni n tMte^
^Iora i» 1UL3 "ht?r ivrn?-* ii'ifMeff:*! ir '•i^
u. i.:ue icii ^nazn ue 'rnuxir*'. UM 11 :k
rai-ie !r'-T ■jL^^-ftowmeai TTfa 'ne -utmif »--
127.1 -s»t:r. iiae tm -ncn t "u*- -i«iu:s i«
vij : L-. -- r.rir i'jj-ws siDilea Trtii: ntdD. 'W
T»r-» 'cr.Ti-^^.v^ mir: or TTl^•sii '*i^rn p ^^
-."=:;:•■ .-•Ttf. tvJ:~^ n«t •HEttr r»»fii i.-* nun
>^'i- xi' r.ir %.-re"iC2a j« >riM«»#:nj«i,
ei:" 3C -017 i;!i«rni:i= r-int ,iig^- u-v .
i-*!*:. ,r . ... t.'.s*- ill u:?s. uai mu »i
-ns r- ■-u:»*'-'iirii:::ai- -race Q
•ni"' He —r*ni: 'i ontt iaa.v»-: be
■t :ae-fjav«< via mx jm* o juiiiip 1
jTtnisc -cvptia '•on "^iinik JMm -m
ft'i] /or Abitnct/ram the King^i
To tlie fiec«»D<1» it is answered, That the
proclamation was 90 notii1l^f1f that public ran-
tk'vou:£f^ did Uici^upon eusewe tbrowe all
Scotland.
To tli€! 3d, Tlie militia is not txdiisive of,
hut canbi*it«i»t niili i\m (eudall aod natiooal
duty, tliQt lyes u|>on crery heritor, and has
%'i3ry juiitUc b^en cverfouod so, and is tiatioraJie
litquiesced to by the people who since thooa
act^fov the militia have cotiie out, and we see
that both iiiililia and heritors are litle enoujcrh
for our deiience ; lykeaa by the 25 act S sess,
1 par. Ch. 2d, wherein the niiUtia is granted,
it if* d»<elaired that the kingdoine shall Ije
reii'M ' St sixtie and mxteiu it' his majestic
>hvi t der use for them.
'In the nnirih, it uefds no answer; and, to
the fytih, it deserves no ans^ver, ejtcept the
letter wer jiroduced, for private men carmot
make up the tenor of letters from tlie counciil,
which must be known and ex(»oncd by the
context I as to the sense of which private men
may be uMt*taken ; but to shew his majesties
juiitire, it is found relevant of consent that per-
sons wcT unable to trnvell, hkeas it is found re-
levHut of consent that their horsc-s wer taken
away, eo that they could not i^oe, they having^
done exact dilijjence to get other horses and
taking- their declarations to ^bow that the
hor»es wer not taken away by tbeir own con-
nitaucc, wherliy each Tnau' might fumiJih
himxt'lf with an defence by causing' his horse
be taken nwny, and without thistlier is no pos-
sibir' ' ' low what was counivaucc.
•^ LiKkhurt duplies for ihe pannels,
tlj;u rcuces ^tMnd relevant notwithstand-
ing of the reply e, for as to the acts of parlia*
tiient Jybelle<l on, they doc not at all concern
the case of parlies not coitiino^ to the king^^s
hoiit, which by e\j»ri.-sae and po«iti%e act& of
purlinment in K. Afejtandcr t2, and K. Hobert
1, lytue^ IS dHyuedt stated, and iletermined ;
and lieio^ H stattitorie pufiiidmieut, it cannot be
C3CC€edit unlcfe^ thcr wer a (posterior act of par-
ti aiuent im|w»8in^ a (rrrater punishment upon
lh(? ^inie cryrne, particularlio condescendil on,
it 1> nripk- %n law Uiut *■ in totojure ge*
* i> r<!tt.>iii dero^aniur/ and wher laws
ni' tid defynes and considers cryraea
pLu it [*|U. and] doc» impose specific
IHJ ' •" J^"- >^ Mfie, siibse()ue4it general
as ntieut are nefer uDftor-
Ax to ihe Kccond, the defence it is most rale-
▼ant that by thu nets of parliatuctii fotindit
kU, and ull otlii^TS, it \h e%i'r requyr^ iw ane
>n*^.f roTjitition thereof that (tcivons should
l»t' and unlcsse it wer allc<l^ed that
hi -( pn>i*btiiatiou was intimate and
p>' Ompar, lb*? head hur^U of ttie
ah 1% thcr waa 00 ftitlTicient intitna-
tit'ii ' lion itself does txprt^slic
ptr ri 1 ;iii(| rci^uvrc intuuatton
1- lii^paii-
fiiU .».*. ^*i ,i*^.t.., «ii,.t. ... ..,...,.;.», »iut to goe
iiAli9SfitbepnK:liiiuitioiis bud been so published^
Ho$L
A. D. l6S0.
▼am
An to the third, it is replyed, That the acts of
parliattieiit establishing: the militia are opponed
which relate to and are foondit upon the former
acts of iiarl lament, and particularlie (hat aei ,
of kinvC James 3. lylielled upon ; and althoo^^
it is not contraverted, but tliat notwithstanduifif <
of the establishment of the militia, his nmjestie
may rcijuyre all fcnsible men, betwixt Mxteia
an*l sixtie,' torcpaireio his host, ia which jcasdi
heritors who undergoe the trouble and expeoie'^
of the mihtia cannot excuse themseWes; yet
ther being no such general proclamatioDi can-
ing- all fencible men, hut only calling heritors ^
and their followers in the particular shires men- i
lioned in the proclamation, the ebtablisbmenlj
of the militia oug-ht to exoner the heritors, ex* ]
ccpt iu the common case that his majestic 1
thoufrht (\i to call all hk subjects conforme ta|
the old acts of parliament.
As to the act of indemnitie, oppons the same,
and referrs the consideration therof to the,
lords; and the presence of tlie militia forces |
ought to exoner, and most he looked upon, a«|
ane a^istance, so as to give the beneOtt of thej
act of indemnitie.
As to the last, repeits and oppons the de*
fence and the lords of prii'ie councill having J
wreitien a letter of the tenor, mentioned in the J
defence, and upon the consideration of the ha-I
7,ard that the rebellion mi^ht break out in thalj
countrey, the pannalls who are able to fountll
upon the termes of the said letter, ought to bol
e?t:cused, and it is positivlic ofl'eretl to b«J
proven, that as to tlie persons to be condescendil I
upon ther gY>ods, wer rifled and tber hon»etl
robbed, wherby they wer incajtable to repair Uki
his majesties army, and the pretence of ijiniu-»j
lation is nowaycs relevant, unUifse ti v^er pro«i
poufHl positive," and offered to be proven, and if
need beis the pannalU arc content to purge
themselves by ther oath, that ther wa** no 8i<«
mulalion, butthat ther liorses were r^tbbed, anilj
so they have clearlte the br^nefitt of the lords <
privie councill tb*'r letter, and it will clearlia|
appeir by the probation, to be led tipoa iba
exculpation, ami cannot hut consist ia tfai
knowU'flj^e of such of the lords of justiciarie i
are upon the privie councill, tlmt the said Irtter J
w«H ivrf»lt to my lord Newark, and who beiti'*
called, may be able to produce the same, ai
by the councill bookcs, it will appeir ther is a]
warrand from the councill to the chancellor tO|
wreitt to the lord Newark for securing^ th
peace of the countrey.
litterloquitor upon the General Defences
The lonls justice jrenenil, juslic*e clerk, and
commissioners of Ju>uciarie, having tonsi*,
dcreil the lyWIl and dthste, ib*'V r«"pill th
fip«t, thini, ao'l fourth detrnoci*
The hnU also repel I the S4 .
respect of the 1 1 uiao» n-/ me h^rdl
Newark at Iht^ r of the militia con-]
forme to the Uhm; ^ 1 -rr"* - • jnd o(
his appuyittui^ kuf 1 :itormJ
at Levui, which ac4^^.^*;.^..^. «*«-« ^^<^\ by a
J7J
32 CHARLES IL Proeee^gi agMinit tie HfesMre Heriiart, [fl
As to the fyft defen'^ fouodit upon the
[qu. Ciiuncellors] letter, the lords superseid to
give (letur mi nation tlierupoD, as it is proposed
in gcncrall for all, re&erviag to tliemseWes to
determine thcrupon as occurs in particular.
TuE Particular Qefemcei.
Kilbrachmont,
Mr. William Monypennie^ for Hamiltoun, of
Kilbrachmont, alleadg^, That the tyme of his
majesties proclamation, his horses being not
only stollcn from him, but his servants deadlie
sick, yet such was his zeall for his majesties
service, that he went to Faulklaud markat and
furnished himself with horses, and did come
the length of the South-ferrie, and tar^-ed ther
two dayes, and returned witli the rest of the
gentlemen efler the rebells wer defate, and is
content to take the declaration.
Deserted at to Menttrie,
Mr. William Hamilton, for Howburne, of
Menstrie, alleadges, he is past tlie age of sexUe
years and is not sensible, [qu. fcncibic]] and
sent out his meu and horse, who attcudit his
majesties host ull the tyme.
The lords tiud this detence relevant, and in
respect of the nottoriotie of the defender's being
past the age of sextie years deserted, and l)e
thir presents deserts the dvct simpliciter, and
discharges the raising or taking up of any new
letters or dittay agaiuest the defender, iiir the
cryme above specifit, in tyme comi:ig, wher-
upon he asked and took instruments and pro-
tested for his cautioners relieff, which the^saids
lords admitted.
Largo adAssisam,
Mr. William Moniepennic, for Durhame, of
Itart^o, alleadges, Tliat the tyme of his ma-
jesties proclamation, his house was assaulted in
the night tyme by several armed men, who
threateiic'd to putt Vyre to it, nnd who did nc-
tuaiiie take away Ins hordes and his furniture,
anti he did endeavour to furuialie himself, and
did iidd outune of his own hur^eiii which he of-
fered to reilcem at any rate, but he could not
have tliem ; aud he otl't^rs to purge himself, by
ane soleiiiii oath, tliat thore uus no collusion
between liiin and the rebells, but that his hoi*ses
were furcildie taken awny.
31y Lord Advocai answers, That the doR-nce
ought to be repelled as to that which may be
collusion, t:.\'cr|)t the person purge hunself by
takiug the dec-Iuration, thcr being nothing more
easie then to disNcmble anil cover this collusion
by oath ; some friends and relations maj^ all-
wa}cs cause take away a mau^s horses without
hisown ex[>n>«i<k; knowledge, so that the event
should be that only men of lovifll principles
should as ant- reward of ther loyaltic be ex-
posed to all the danger, and put to ull tlie trouble
of opposeing, Iwth by ther indeavours in tyme
of peace, and by ther arroes in tyme of ware,
whilst these who are of pernitious principles,
shouhl Iwve thcr crymes made a protection to
them, againest all those troubles and ezpences.
Mr. William Moniepennie raplycs. That ths
detence stands relevant, uulesse nis Miyesties
Ad»ocat will positively allead^ that the dts*
fender diti actuallie collud with the robbsm^
which is found relevant of consent to be pro? sd,
SAd his ofifering to purge himself by bis nath is
su^cieut of itself without taking the declaim*
tion, unlesse my lord advocat will poskivelis
offer to prove simulation.
Bruntoun ad Auitam.
Mr. Trt7/iam£ea/on,forLawo, ofBruntoiu,
produces two testificats, ane under the hand si
the minister and elders of the parrodi who* he
lives, and the other ander a phisitiaQ's hand,
bearing his sickness all the tyme, and bendss
he is |>ast the date of sextie years.
Di/et desertedj and Letters discharged againU
Captain Murray,
]\Tr. Colin M'Kemie^ for Captain Gidesa
Mun-ay, ol' Pitkerrie, allead^ he is past thn-
score years of age, and for instructing theraf,
produced the indenturs past, betwixtliim and
William Miiir, merchant in £dinbuigh, dated
the eletinth of Jaimary, 163r ; and iarder
allcadged, that he was sick and unwell, all the
tyme of the host, of a dan^rous sicknes, so that
he was liker to dye then hve, and produced two
testiticats for proving therof, one under the
hands of Dr. Craw turd and liavid Pringle,
cbirurgeon, and the other uuder the bauds of
the miuistei-s and eldei-s of Kikeny. The
lords in respect of the nottoritie of thir defenoes
deserted, and be thir presents deserts the dyet,
simpliciter, and discharges all new letters or
diltay to he taken up or raised agaiuest the.de-
fender for the cryme forsaid in tymo coming,
wherupon he asked and took instruments, and
protested for his cautioners relieff, which tbi
saids lords admitted.
BaUanquhill ad Assisam.
Mr. Alfjander Mnleolme, tor BalcaDqahiO,
of that Ilk, alleadges, that tlie tyme of dm
proclamation his horses wer taken away.
Sawfoord ad Assisum.
Mr. William Moniepennie^ for Nairn, of
Saiufoord, alleadges, that he bavins upon his
majesties Proclamation sent out three mcD
with horses to sene his majestic, in respect Iw
could not attend himself, being ane foot cap-
tain of militia, and having thcrettcr endeavonred
to convein his comiKUi^, could only raise the
number of ten men, which being offered to tiie
earlc of Weymcs, coUoncl of tlie reffiment
by tlie defender himself, he adjoyned them to
another com]»auie, so that the defender couU
not serve his majestic in the quality of ana
heritor, his horses being sent awuy.
Glenicston ad Assisam,
Mr. David Deicar^ for Weyraes, oi* Gle-
niestoun, repeits the samen defences proponed
forSamtbord.
Ily Lord Advocate alUeadgesi the
fm- AhwnttJT&m ike Kki^M fh$it
A.D. 1680.
[SO
hiide wilnotit
no m^n (hty
3 any
•tj trj
. .- lyme
il nowivs f^tevant, for tlie? sbodd hare gone
to the tost with 1h ' ' "
collors, and tlioii£rlt
V(.
,thal *. , .t.,>. ..^, i, ......
Principle of disloqunlitie or <1
Ofli
j try^T lid hufifie: g-ooe
I lome way tu attemlf niHviith^tumlitig^ of her
indispofiition, heing' \i\^r nith chrfd, >€t she
did frtllowe hiiD a curv ^* Hy» with wove*
ml onthit that sIk! ^^ > ^ leave him^ and
she dyed hrr blooU vrouUl l>e on hii hemd,
id m aaagerous wai her condition that the
feW down In ihe i^&y, in n manifest hazanl of
•hortioD, so that he was neccssilat to return
witli a resolution, that if the wer any hetler
I be would repaire to his majesties h(»t, anddid
iceep his horse for that eff<K;t.
His Mujfsii^i Advctai makes no answer,
but that U\% absence appeirs to have bciu from
dissatistkction, soeiikg he rduses to take ths de-
claration.
It is proposed for Mr. Alcirandcr Nairn, of Liile
Treiertoun, that he was sick fit the tyme,
which is attested bj ane declamtiou under the
bund of the arch dean of St. Andrews, and
F that \m DKither KfFrents his wholl larnJa and
tiroduceil Xlwr lyflrtnl iiifeftment for instruct -
jn^ iherof, iind that he lives in the toiiu of Hi.
AudrewS) and watched and wardit ther, and
iitrer kct:pt a horse.
S( rat her lie ad At^isam,
Mr* James Graham, for Lundie, of Stni>
He, allead^es, that his horses wer all
I away, oikI he is content to take ibe de-
tion for lestitieing hii loyalde,
Itrdie ad Ai$i9<im.
Mr. Wiiiiam Mmiepennie, for Georg-e Mon-
criff» of Re*lie» alleadges, that the lyme of
ihc Prot Uin»ation, notwith^tandin^f bis Inily
was extreuiche sick, \et he was i^o '/imlotis to
* menet his rnajc^iie tfmt he keept the first ren-
I devouze, and did actualHe send forth ane young-
I i^ntleniau, im own broihiT-iO'lawe) who was
f not ivnc heritor InmHelf, and was a trained soul-
dier, with this condition that he shotdd serve
id ihe defeijder^s name^ and if he Hhttcitd not he
l>ccavc-d i\\ lii^ niihHtitutfthat he should return
the sauH* 111 lit- 111 It \u iiii«rhi q-ne himself, and
he wa» ;i
Mr, J . ir James Hinclair,
of Kirinmii}, in; was sick and in*
firme .ittU** t\ i it out hor>€ and men,
and proilurew its, onv from the loi-
fiiHivnif and i^- m the phisitian, ibr
provein^ then^oi, aud i» oontcnt to lake Ihe
declaruti^m.
It was allevilppeit ' ^ • ■
! demie's soil and a*
I at thctymc, h* wa** - ju htm hi i h-^tiuj ynu luui
I bis bone was takou £rom his son.
L
Phinmont dtscrtt ttnd diickargti Letttn.
It h alledged for itrown, of Pbinttoitt, tblff
he IS past sextie years of age.
The lords in respect of the nottonctie oftbii
defence deserts the dyet, and dischai-^es all
newe letters or dittay againest the defender far
the cry me abore specifit in tyme ooming.
Pitlochie ad Auinm^'
It is alleadge<l for' Murray, of Pillochie^
^riiat he is no heritor, nor keept he a hnrstt
this tweke years, anil he is readie to renounce
his heritage in the king^st favours*
My Lord Adtocnt nnswers that ane heritor
by the courtisie of Bcotland is in all respect!
ane heritor, the conrtisie being a legal I dispen-
sation daring the lyme, as a comprysing is,
and therfor seeing he is in fcudohe^ should
serre upon the aocount of hts feudatortc obli*
gation.
It is replyedi that the Proclamation is op*
pOQed which calls only bentors and free-
holders, and ihe pannal is neither baitor nor
free holder.
The adf ocat dupip, that the courtisic is/eu-
dum ad lempus^ and consequently he that has li
is duiing the tyme ane heritor.
Kyninmond ad Assitam,
Mr. Jama Aleiandcrt for the laird of Kynto-
rnonil^ alleadges, be was sick at the tym«
as ane teslificat upon souU and conscience,
under the ministers hand testifies, and a decla-
ration under the phisitians, which is sufficient ;
lykeas he has raised exculpation and cited
witnesses, who are able to prote that hs
hor?!s'd his brother- in -I awe the laird of Karas,
whose horfses were stollen, and that he s«nl
another horse and his own mun, well armed
who attend it this majestie^s bott, ayi and vvbtU
the rebels wer defute.
Mr, Dcitid Dettar^ for W«ymes, of Glenies*
toun, allcsdges alsOi that he was sick and sent
out his xnt^u and horse armed.
My Lord Advocat answers the tame is not
relevant, piTsonall [iresence being requyred,
and the defender refuses to take the declaration.
Graingmyn deserti and discharges LeiUrg^
Mr. Alexander Maicolme^ for Robert Kin*
net 11^ of Graingmynfi, alteadges he is a mean
herilor not excet'ding ane hmidredth n^erkf,
and nut being abte to furnish a horse, he ther-
for went on foot The lords therfor deserted^
and be their prrsents ['pi, dpsert or de^^erts] ttic
dvet simplicilor and fUnchHrges all lelfer^ or
dittny agftiufit the defender for the cry me obofi
specjfit in tyme coming.
Dowhiil coniinufd.
I Mr, n«/ for John Lindcsay, of
OowhiTI, n! 1 hat at the fvme of the
• ' ' ' ''» ' T. of
alt
*
31]
32 CHARLES IL PtocmUngM agaitui the FiftMre Heriion, [ST
tcntetl Lc hade bein taken prisoner, oat of his
own boiuc at Culrose, and all his arms were
takim from hifn, so that when he was sett at
lil>vrtic, he was putt under the forsaid caution to
attend all the dyets of the proces, and so was
under an absolute necessity to wait the coun-
cil! *n fard«T order, seeing the proces was only
c«)iitinucd from day to (by, and if he hade not
nppcired at e?ery day he would not only bein
declared fufritive, but his cautioner would have
fuHiiult the 10,000 merks.
Mv Lord Advocat answers, That 1. He
should have made application to the councill,
dosyrein]^ to knowe what should he his cariage :
'2. The proclamation would have defended
liim if he hade g^ne, and beings the posterior
order took off all former restitiint: 3. This
viiiui be no defence why he sent not out his
nifu viiice the councill aid not disarme them.
Thi! lords continues the dyet againest John
liiuihay, of Dowhill, till the thud Monday of
June nixt.
Bandon ad Assisam,
Mr. WilUam Beaton^ for David Beaton, of
lluniloii, alluailgfcs. That hiswvHTwas at the
poynt of death, and he sent out ooth horse and
liMit, a.4 a testificat under the lievtenaiits hand
ti'Mtitii's, and be is content to take the de-
claration.
Baibirne ad Assisam,
Mr. James Alexander^ for Balfour of Bai-
birne, ullrad|(es he was sick at the time, as ane
Itwtittcat prmloced bears, and the horse he pro-
vidit was taken from him, and he is content to
^Ito the declaration.
Fordcll ad Asiisam.
Mr. WillituH Beaton, for sir John Henry-
IM, of Forilell, alleadges he stnt out three
hoiw" and three men, and at lh:it tiri.c lie was
unabW to iravcH, as anetestificat under the mi-
ttMtna hand bean, and its nottor he was not
^t ihirthiw years bygone todraweon aiic
^at ' Ktotf he was one of the ^^entlrmpu a.'-
wTJiitt ilav al borne by the councill's letter,
uJSlby the Lonl Chancellar, as a person iin-
iSllK i^nif totka host, be reason of his cor-
ttaWnck' ittdi niftnniha«
Ctumgmy ad Assisam.
Mf Ditid Dowr. forMdvill, of Cassin-
Z iSlJ^U»««»«* license for him
ViTwSS teiiya^*'®'"® lie wanting
h
•L
Ofi
of y
wfaiU
•houh.
tbem, I
IVi^rti tad *»*»«« ^"«''-
W ^ «mM fcr Wbert Cuninghame, of
4ta«iiwMto«MM
lb«»ti«MftW^ltairfteBurgh,
01 to
the saids Robert Cunninghame and Henij
Shanks, and diacliaiges all new letters or dittay
againest them, for the cryme forsaid in tyme
coming.
Mr. William Moniepennie, for Mitch^, of
Balbardie, allcdges. That he being conveined
befor the circuit at Coupar, he proponed a re-
levant essoney, which was proven to the jndgct
so as to him it is res judicata,
Mr. John Lauder, for Mr. Charles Wmrdkw,
propons the same defence.
His Majesties Advocate takes instmmenta
that the haill pannels, except Hay of Be-
houssie, do judicially confesse their- abaenoe
from his Majesties host.
The Lords continue the diet till the twenty
fift instant, and ordains parties witnesses and
assizers to attend.
Interloquilor upon the particular jyefenees^
25th February, 1680.
The lords justice s^eneral and commissioners
of justiciary find tne defence proponed for
Thomas Hay, of Balhoussie, foundit upon the
passe relevant ; as also find the defences pro-
poned for Robert Hamilton, of Kilbrachmont,
Janicts T/dw, of Bruntoun, Mr. Alex. Nairn, of
Little Friertoun, Lundie, of Strath'eriie, sir.
James Sinclair, of Kynnaird, Kynninmond, of
that Ilk, David Beaton, of Bandon, sir John
Henryson, of Fordell, Rolwert Balfour, of Bal-
bimic, and James Melvill, of Cassengray*
lykcways relevant and remitts the same to the
knowledge of the assize ; as also finda the de-
fences proponed for Alexander Durhame, of
Lai'go, Charles Cowan, of Corstoun, David
Balcanquhill, of that Ilk, Alexander Nairn, of
Sainioord, George MoncriefT, of Redie, and
Janios Weymes, of Gleniostoun, relevant to
alcviat the punishment, though not to elied the
\y\)iA\ according to his majesties gracious
letter and rcmitu the same to the knowledge
of the assize.
The IokIs repell the defences proponed for
James Young, of Kirktoun, and Murray, of
Pitlochie.
ASSIZA.
Hamilton, of Ilaploch.
John Stewart, nf (sairntullie.
Gordon, of Cairnborrow-
Mr. Robert lr\in, of Peilsyre.
Geo. Drununoiid, of Milunabb.
Patrick Tailzfer, merchant.
I'atrick Smith, of Methven.
John Mont^romerie, merchant.
Duncan MMntosh, merchant. ^
John Brown, merchant. '
Josf^ph Marjorilwinks, of T^icnchie.
. liiiird, of Sauchtounhall, younger.
I Robertson, of Strowan.
Kinloch, of Bandoch.
Charles Maitland, of Pitrichie.
The Assize lawfuUie sworn, no objeetion ia
theoontrair.
SS]
/or Ahiener/rom the Kin^'t Uo»t.
A.D. 1660.
r«
^
II IK Mttjtitm AdfiKate took rnstniiticMitfl
llnMt-'- " \*.,....A. «^'i'— -rieJiiKlc
lb a .. ,- -,.„., .....^v, ^.. ,.. curling of
tltcsaiuen.
Tilt' clcfciiders for proreing oflheirionocHnire
ami gx*>ui^^s <>i' exculpation, adttuccd the wit-
ncs^ifs uuti oilier C'fiilence after mentioned, vie,
Put^kh Murfa^^M of Aiichtertyreragied 32
Years, unmarried, purg^ and swor ne, depones,
That he saw Thomaa Hay, of BulbouEie in the
king^'s host, in summer la§l, and that to the
b€«t of ht!i knowledge he was tti bade condt-
tione oi health, and that if he hade stayed be
Mroutd have heen in danger be rt^a^ou uf sick*
«, and that he sia^^e ui in coining offiu thi«
£le condition y and that he liaue him have the
rquis of Montrose pits«ie^ uho Has bis rap-
lain , and that he leii three or tbur i?ieii well
appointed behind him iti the army vuuta ttt*
tnUa he was present, and this ia tbe^ truth
as be shall answer to God.
Sk SulfKnUhir^ P. MifHRiv.
Hf, T%omQi Ste&tirt^ mn to Mr. Hary Stew-
art, in Fearth^ purg^ed and tfworne, depona cnn*
formi$ pri'cedrnfi, except that be did cot see
the paii^f an<l kno\vt« that he bade two horses
left bdiiud with the Unsi at least, and did Tiot
iee him come off ; and that to his knowkd^^e
ontd have endang
Sk Suhscnbitttry
[idfje
libstayinj^ wontd have endangered liis healtli.
Mr. Rohert Colt^ for fardcr probation, re»
Tieatia the tnaiquii^ uf ?^luntn>se pasae, and
lifjence to thu pririnell to return home.
David loni Neuurk hein|| irworue, depons,
that it was the common repuft of the country
that Uobert ilamiltou of Kilbrachmonts^
hciraef were taken away, and that be sa^ve bim
Qotnini^ on his toot to the rantlevou^e to tell
tbis, caum ti^mntia'j he is hbuear neiiibbour.
Sk Sutfucrilfitury Nev^ark.
Jam^t Mehilif of Cassinofray, beiny so-
lemnlte sworne, depona, he aaw two of fJamil-
ton of Kilbrocbmonts* horses to the rebella
bawbf who robed bun, the foresaid rebelb
having come to Ins bouse to have robbed the
deponent's bor^ca*
Sk Su Ific ribitufy J AM cs 51 ELVUX.
The said Robert Hamilton producetl lyke*
ways ane testificate under tbr band of Mr.
Wra* IJay, muiJstcr uf Kilcoui[uor, testineingf
that be iit ane orderlie person and tberi'^lTrr cf
the regular and orthodox i ler^^te, and that bis
bontes Her robb'd and ser^ant^ sick the tyiue
of the bo*t, and yet recruited himself and ad-
vanced some con^ulmMi- part of the way till
he heard th* ste.
Jfimti Cti r of V'yiT, depooa
be uawe L#ft ' Tie sick
tbf^ day of 1 1 . i n doctor
who was will I i It was the misles,
$a /«r, J. CuAiJFoao.
lU^crl Balfuur^ at Dalbimo, btiof iwome,
VOL. M
depons be sawe I^we, of Bruntouo, lytiing'
aidk the tymeof the bust^ and Ueiii)( bedtait,
' Sk Sttbtvrihtiur^ ^. JiAi.roua,
Ti,p ~ii 1^.-^^^ r- r* f' '-ntn^ pro-
duce'! uich, ani'i
Dr. A.. .. i..».v..., ., .. .. iiooii bt*i
being sick of the meaails the tyme «>f fhw bost^,]
Mr. Wii' v ";hV, for>Ir *^'
der Nairn, ' », rciuitn i
ofDunkeir.v x .. -..h.vi.-.i ,,.^ ;,f
the hfist ufion snal an it b« I
is ane well attacted jm , ^. , g»i- 1
Tcrnment, and lykways repeits bita rootber**']
lyfTrentiufel^tncDt,
Jfimcs Crctufurd^ collector of Fyfft dt-pon^t
That Stratheriie^ii brother's bortie and arm^ wer
taken away by llic rebells, and Stratberiii
hiniself was not io use to keep borse.
Sk SubtcribitMr, J. CftAuronn.
Jtsmet PKcoirnc^ initter, in Edinburijli^l
dcpons, That Htratherlie*B brother declared iaH
Dune that his horses and armes wer taken ^
a way by the rebel Is, and that this ^Fai tbi
oonrmun report of the country*
Sk Subicribliur^ James PncAiHNE.
Dr. Andrew Rtilfour depous, that be ^v% I
constant advise to sir Jnute^ HincUir, of Kyn- I
naird, the tymeof the host, be being' sick of]
aneaijfue at that tymc.
Sk SuOscnbitur^ A. Balfour.
B^bcrt Maitcr^ of Uur^blte, b<ing sworn e,i
de)M)n»i be gnwe sir Jauiest Sinclair's mallei
James Arnot and his horse, well armedi atteoil l
bis majestie^s host all the tymc.
$k Subs€ribitur, R, 0ALrot7R.
Mr, George Arnnt^ wreftter, in Erlinbufc^h^
depons sir Janicii Sinclair was sick and un^tH j
the tyme of the host, and not able to travell, I
and that he sent out his horse to the bust who^
stayed all the tyme.
Sk Subscribiiurt Geo. Arnot*
The said sir James Sinclair, in farfJer evi*
denoc of bis inuoceneie and defence, producetl ]
ane testificat of bis sicknes {ihe tymeof the ^
bi>»i) under the hand of Dr. Alexander BaU
four, and another under the hand of the mi- !
nister and ciders of Ebdie.
Colin Pitscottk^ son to genera II major Pits-
cottie, aged Ihretlie years, purged aniTsworne, ^
depont, that Ky uinmond ov that ilk wtkR so sick !
and unwell the tyme of the host that he wait
not nh\e to come abroad* and that he sawe bipj
iiuraesat ihv ho^t at Bothviell-bridtne.
Sk SttbjicribiitJi\ Colin PrrscoTTii:,
Jantfi Ahercromhkj of T*och|fellic, swornek]
depons Ryuninmond of that ilk wai so unvi'ellj
the tyme of the host that lie o^ftil J not come J
abroad, and that be sent out bis bon»c to tbi
host,
Sk Suhicribitur^ J*mf*i AnEtimoMait,
Thcdefendei . m%i
testiticiitaud phi _ Licitin
unwell ail llv4 v^tsas ^V s.W>aS3ftiV'
\ ft
35]
32 CHARLES II. Prcuedmg§ againit th> FifeMrt Heritors, [9
John Henrysoa^ in Fordelgrein, defions, That
Bandon's man and horse, well armed, attendit
the host all the tyme.
Sic Subscribiiur^ J. Henderson.
Colin PilscoUie^ above designed, deponsthat
Eandon's man and horse well armed attendit the
bust all the tyme.
Sic Subscribiiur^
Colin PrrscorriE.
John Dempster^ of Pitliver, bein^ swome,
dcpons he knowes Fordell Henryson^s condi-
tion to be such that he was never sein him able
to loup on a borte, and knowea he sent out
bis men ami horse to the host.
Sic Subtcrihitur^ John Dempster.
Alexander Spitle, of Lencbat, depons be
knowes Fordell Henry son to be intirme and
unable to mount a horse without help, and that
Jif- st:nt out his men and horses to attend the
aic Huhcrihitar^ Alexander SprrrELL.
David licatpn^ of Bandon, being swome,
df'iKMiH tbstt the moneths of May and June last
Jii/bf-n lUlfour, of Balbirno, was sick and un*
M»- to K**^ ^" ^''" majesties host.
Sic Subscribiturj D. Betuun.
pavtfl Spitle^ servant to the minister of
Miirkirif^bt df^ivons Balbirno was sick and un-
■bUi to ifMVfrJl the tyme of tlie host, and he
orovidit Hn« b'»rsc to send to tlie host, but the
|ior*#- wan <«tollen and taken away by the re-
liilU, iirid III: f^annot wrvtt. , ^ ^
Sii SuhMt nhilur, CjEO. M'kenzie. I. P. D.
fuhn DfMf, sn^ant to the Idrd of Bruu-
biiiii dvMfUv.oni'onni%Ui DafidSpitlem wn-
•.i/i/zi HiidliiMfloiwilwreitt.
^''I^UrnbUur, «E0. M<«NZIE. I. P.D.
f.Miif t M' '"''. '^ ^>«s«*»nff™y » itt ^vindication
..I 1.1.1 iiiii'H «ii' «■ |ir«Hluf.td ane tesUficat, under
,|„. b»iHl "I l»tt»"> '''^«* Newark, whereof the
|4,|iiil IlillilW*'*
I |i5%lil Lord Newark, doe hereby testifie
!\ liHHi.ii vuuiufiiif to the nroclamaunn
* ;. ..no ittiidrvouzc with tfcerestofthe
?»'*': ; .1 " . vr... »"d he having told nic bis
II. IuUm ♦«i»" •••«■>'• *'^***^*' beuig well
"' ;:; : !:: I!;: «...! H.'- .^t ««• the gentTemen,
\ ^1,,., „,„ .l.«i..iHM-birn,andaHowe am
horse to have gott them restored, cmua smiifur,
he was working in the home at the tyme.
Sic SubMcribitury John Neilsow.
John Neilson, son to the said John Neilioi^
above designed, depons conformis to his father
and that the laird ofLargo wentwith achairged
carrabin eller the rebells to have gott back n\§
horse.
Sic Subtcribiturf John Neilsow.
Alexander Derhum^ of Duntarvie, depoiu hf
knowes the laird of Largo's horse was taka^i
away by the rebells.
George Scotf of Pitlochie, bemg swomey d^
pons that the voice of the oountiy was thai
Charles Cowan of Corstonn's horse waB|ake|i
by tlie rebells, and within two days thereAer
the said Charles came to the deponent and told
him one of his tennents hade taken the said
Charles horM, and when became homeheoon-
fest that bis liorse was in the company with
the rebells.
Sic Subscribiiur^ Geokob Scott.
John TFi/Ziamirm, servant to Pittonr, d^bns
he knowes Charles Cowan of CouratDon'a
horse was taken awav by the rdidls ; be can-
not wreitt.
Sic Subicribilury Geo. M'kenzib. I. P. D.
I
li».iii
u
George Scott, of Pitb>cbie, depons that he
heard Balcanqubill's horse was taken away, and
being walking in the tields be sawe some honea
witli the rebells, and one of the deponent's ser-
vants told him that one of these horses ba»
longed to Balcanquhill as he thought
Sic Subscribitur, George Scott.
The said John Williamson lykwayes depons,
that the common report of the oountrey wi^
that the laird of Balcanquhiirs horse was takea
away bytherebeUs.
Sic Subtcribiiur^ Geo. M'kenzie, I. P. D.
John Henryson, in Fordelgrein, depona
weymesof Glenistoun bade a man and luirat
armed at the host, who attendit aU the tyme.
5*c SubicribUur, J. Hensersom.
-4/€Tflrtflfer Bantkin,'^ servant to the laiid
otL^wchat, depons conformis to John He&.
ryson. **«w-
Sic Subscribitur, Alexander DaKskin. .
I t^t^^ ^^7^^"^ ^' Alexander NainTS
;;\;;;;,-7.p.H. hi- lady ;js^^^^^^^ I ^?S^wtt\tr "^' '^ '^"^ -^ ™«
written, wbertSfth'itiJ^^^ '»**
Tlicaeare testifidng tbit I ke^ntlh*^..^
dcvouzo at Coltoun, of bL^^wSL^MT
lufct, mnanie of Geoiie MoSTrfR^S- ''""•
broiher-in-lawe, wSTSrSf C^'&'^
cneff. bis servants, J^o;^^
.., , ^i, Mui ilii- '^••«-'''»** day Of October.
sl SHhtiubitur, Newark.
s^Hunhttur. Newark.
Jf7] fot Akicncefram the King-$
TO&rohetl Qitckrr my lord Nevrtrk'i GbtmnaniJ,
iwd rtlertvArti under the eurle uf BulrarraM
orminiaud, and i^uUiiued in llic bast tilt it vrus
dislMiidit by order ; and uU tbat in oh«>dicn cc
to hisi)iAjt'siiij^8 l^ruclaiuation fur my said Tiru-
tlivr-in-l&i»e. Iii t^nlitnohie wliCMXHif^ 1 have
Jiibscjibil tbir presents with my hand «U Aiicb-
Icnytie, tbis twenlie nynt of Se[ii€mber, 1679
years, liefof ibir Mritiiesses Joba MoncrieiT,
nottar iYubUct|i^reitter hertK)f; and 9^1 r. James
fiibbald, icboolm aster, at Auehlernitio.
Stc Snhfvribiturt Jg, MoNCRElFF.
P^THrcK Leni.ie^ (witnes.)
Wt Cot in enrlc of Bakarrat^ and David
lord Naeark attests the above wreitlen de-
clftration to be of ?eritie, as witnessc our sul»-
■criptinu ut Caupar of Vyii\ Ibc second day of
October 1679,
Sit Subicnbitur^ Dam; Alius, Ncwwark,
David Lord Newark upon oalb, udberes to
Hnf attustalion s^yen be blni in Georg^e Mnn-
criedTof Redic^a favours that tbe aaiaeu iabulb
mid veritie.
Sic SuhicriHiur^ >i£^wAiiK.
Jtihn Manvrifff of — — ■ — - — depons Atou-
Ci lie seut out \\\% bmther-in-lttWfi, to
tbt ^ i stwith this «Epi-ei4se condition, if be
^irer not nceepted of he would pro binisclf, cau$a
$cientitt^ he wast frith him, stnd heard as he has
disponed t
Sic Suhicriyuuft Jo. Mo?icREtFr,
Tkamtts Ciichnitf in Auchlermougbty, de-
Che know(!S iti^iie sent out bis brother- in-
to his inujestie's host with lUi* «?xpresse
condition, that if he wer not accepted id', he
would t|oe liimt^elf or «end bis aoo, and kuowes
lus lady was ^ick at the tyine.
StcSubscrtbitur^ TnouAAGiLcnntwr,
Tbe Lords ordaines tbe Assyse to inclose and
retume ther Verdict upon the 27lh inatant, and
ordaines nil jlortics to attend.
£7th February 1680,— The said day the
persons who past upon the absent bmtars from
IbehOftio FyH-shiref returned tber VenJict in
mttaoee of tbe sjuds lords, wbei-of the tenor
lolWeii: Edinburgh 25 Febniary 1&80.—
The Aatyse fiodn the ly b«U proven, us alaa tbe
Mivse be one voice lie the m<»uth of ther olmn-
Mifor Gcorve Drununond, tbiils the defenoc»
for Robert Hamilton, of Kilbmchmont, Jannes
! Lavvc, of Hui'moun, Sir. Alexander Nairn, of
f litldreirtoun, Lundy, of 8tratherlie,
aur James Sinclair, of KJniuiitl, Kinin-
Ipond, of that Ilk, Diivid Bcaloo of Bandoo,
m Jolm Henrysoti, of Fonldl, Robert Baltbur,
of Dalbirno, James Melvil), of CaMiDfrray, and
ThomaR Hay, of BolbmiAie, pannalU, contained
t in the tint claoe^ pniven, except Beaton, of
I Bamlttii^t McMHs or his n^ylTa sicknea, which
I |fc# viyse ih4$ noi proveD, bui the rest of th«
I tii4 Biilim of Budoii's defiBooe they tiud
5k Su^ri^.f Geo. DMMJiOND, Chat}.
Host. K D. 15S0« [SB
The Assyie be ot>c vtiice, be tlic mouf h of
Georpe Druramond, thcr^''^ ^* '■ ' ' ?.
defences for AlexandtT li
Charles Cowan, of Cor«lou»i, , .^. .,.
hiU» of that Ilk, Alexander Nairn, vi ,
lieor;Te Moncreilf, of Redie, »tu: _ . A ,
^Vt; yiues^ of (tleuMouii , pannalis coataitied m^
ihe second class, proven.
Sic Subicrib,, Geo. Drummo^d, Chan.
The Assyse all in one roice, be tbe mouth oTj
Georg^e Drummond, ther Chanecllar, tiudtf
James Yonn^, of Kirkloun, and Mur- 1
ray, uf Pitfocbic, t^fuilty of ibcr remaining, and
abydlng frae tbe king^s ho^^t in June last.
Sic Subtcrib., Geo. DtiuatMOND, Cbao.
EOer oppinitkg and reading of the wbilk i
verdict of Assyse, The lord>i justice gpnenil,!
justice clerk, and commissioner* ^t •*'*
absolved and assulyed, and lie il
aolves and aFsolyiei* the haill pi ■ d
in the first clB5»se from the hbell and dittii^l
above mentioned, and discbaire^^oi), and be thir 1
presents dischanges all new letters or ditt^iy to f
Be raised or taken up against the dd'^nderti for j
tbe cryme above s{»eelfit, in all tyme comind
wherupon they and tber procurators asked ano^
took instnimeuts*
His Mtijetties AdxHtcat produced bis ma-
jesty's gracious letter direct to tlie lords of hiftl
most honourable privie council, ancnt tbe pu*l
nishingf of the absents from, antj deserters of hitfl
Itynes host, and dcsyred the isaids lords might]
proceed con forme tberunto, and to his oiajeati*!^
other vivacious letter direct to ther lordship i
the surne date, and record it in the books ol Ad-
journ hI, upon tbe twentie sext day of November J
last : followes the tenor of bis majesliea i
letter direct to bis privie councdl :
ClLABLES R,
Right trustie and welbeloTod cousio and]
cM>uncellor, right trustie and wel beloved cousin
and counccHors, right trusty and welb«*lovciI ]
councellors, and trusty, and welbeloved C4}uii<
cellors, We greet you welL Having setn and I
considered your letter of the elivinth in&iant t9i
tbej duke of Laudctdale, our seoretarte, oofi*{
ceruing those who did not assist us in actp
preasiag the late rebellion, and those who de
serted our host at that tyme: we am fuUiiii
oonvioced that it would prove a great discou«^ |
ragement to our faith full subjects, who, in tb« j
discharge of ther duty, hare bein at a grcali
deall of expense, trouble and hazard in that cJt-J
pedition, if they should not see some suita
punishment inflicted upon those who (vviti
any reasonable excuse) did not come to our i
aistance at that tvme^ and upon those who ef\
coming to our uosi, deserted the snnic ;
therefore we *loe readlic approve the rrsolu
you have taken^ to fyne the most guihy, not^
above two years of ther valued rent, \>hitst
others who aro lease giiiUy are to be fyned al 1
least in tbe fourth part of a yoar*Byiklu«dfenl|j
which we take to be so mod^nl (ooniiderin^ i
Uow« d\%ti!i3AXV NSaa igwrtaa^ll ^^s«^ ^=ry(a«.'^&M^F^
\
4
.-?)!
CIIARLF.S IL PrBTMimgn strskui ihs Ffeakire Btritan, [40
Ivivo Ivm if ^,ft»\ •>!' iiiH .iilinit (f.io«ln#» Hai!*» .Tit
lif^v'nu-.l ilirni J ihnr hm yan <jiv tp:-#-. -.rAJIy It
may r.iiln-.' '\u: tlinuiflit i 'vnrnin*; Jh^n % pii-
iiiqlitn^nt !or •* iln^ •.*'*II know» Miat <iu\%% of-
|i«Mi!irt ii:iv.. ffirriifrti'^ h^t\ p'iniHlK:rl Sj for-
liiilinr 'ii'.-'iw^tifins ^rnl Imnmhnn^titR : an«1
<n -.vt: iiifl iif,-t i.»';kr1ly i3iff.vk*-\\. Oiv^n at 0«ii'
r .«ir» :it \'. :iit;i;iiL th-- l/Hh d:iy of .\o7«*.mh*-r,
ii);i|ir<:rif'< ro'iiirrif.d. L«<;r« Eft DALE.. !
^■'•mmuiiMifr* of Jjislirlarv, liAvinif fin.^i-
•IfTfil I In- IvIhII an • v^Tliri f»f sttsjv* aViVf: ;
^fftiiitn I'l-^itirr ntl.il hw Tri:i'j'«*firH (frimo-n
Irt*/ r^j. * .J iid^i.';^ 1,;;% \'',y ^!^ wiil siiirl ^;':.-k ,.-i'.
Sfi^rit liK- •i'liiisitrnr'nU to h»rr i^^iir.U•/l uj^jn ihi;
.••,4* iiU- fioiM, arwl fi'-<#:rt< ■•'«; of ii;A hvn*^ h^o.r.
'Irify J>r fl,#; rnr»iitli of Jam#^5l /ff^rirvaor.,
Tty.irjT of r .in't, r!pr^m^fl anil jiirf^H Ihfc aawJ
.riiii*-K Voij ./, 'if Kirktonn, to b*; in anfr uii-
Uwv nTj\ ui.tt'.rciHmt'wtnt'Tirif. thoii«and ftijfht .
liM'.'Irctli niil v:,*r.li': (i<itinfU Scotts, i
lViiirr.iv, of |'i*ififlii", iij tli.: ^oiimf^ of KTCQ ■
liiiiitlii'ilifi (I'Miri'li Scot^, ^it:\'iinf!f:r fliirham, j
»»f f *'ir:r'>, !'■ lii*- v»'iir»#: lit arK: tiioiiwinr) Hi^ht j
f :iii'|ii il, '.{ :!i;it lik, in tli'- soiimfi of fyve liiin-
«Iii«S |»'ini.i!q hs^iJltH, AU ?aii'if;r .Nairnfr, of
Sjirnf/irfl, in iho. mim of tito hiiri'!r»-t!i nvntift
f'..:r \t<,uut\A Un filiillin^ Sf:otU, f«f:orgi» 5lon-
«r'ifr, of fff.'i.c, in Uif; 4<r>n!ri«s of lliri-e hun-
«li»'Hi poiiriU S*oi|«:, ;infl JanifH Wryrnr*, of
*il<'.ii< .Jop;-, in ttir-^.»fimft of zn", hiinrinrtli
«' V. nil J;* w- iioiinfl Switu, and rirdaiiMrfl th«:rn
lo Iff .If. J Inn. I for p.ijrnn<rnt of tlio frirsai'lH
«./,iiin* 4 fii Iiii. rnAjf-AtU''!! r:a((}i l:f#'jKT f"'*r |j2<<
ii>ii««8 ii*#-, ;it fhf tfrm#! of l/i'i.'ir^ nixt, and
I'l hi 'I f»ii ir»Ti Jor |»rr4f;Tiriri^ Uj':r |if;rson<i,
Im I'll* I «f I'lr-l-; rfnttiu\HH%f,wrH of hi^ HuijfiSUtm
ill' ...«*...-, p.<- I;i I f-'riflay of .liry ii.-rt, iin«J':r
r- ^..tii,< 111- .(/.Ii%(|y n^ifiVfr ffir-hiioiifii, fifiil or-
fl II,' •• 'In Ml ill If*' f :ii \«;f| |/| |i;i«/»|i, rn«:i': tO TV.-
II. nil t li tr.i y Ktilixr r^li«: tlif («#kirt Uiri'l, nnd fiiirl
l|i#- »,'iii rli«-, wliiJ'Ii wHh |iroiiiirir-i'<l ^ir flooin.
'Ill' ...,.il i|.iv .Ii»!ni .Miuniy, of l'i\\ttf.hif^\ttr-
I":
III.
Th#t >v)nkA of A^ijimnni tor this
rnntain fc>*r.r,rri< rf th^ pnicewliiia^ airxiiHK
«e»*»rai other iwntft*^, whn w«rr broaaht 8»
trjii on th« l.ki» iadictaiMifs. Bat
th«^m an.l i^t^ c»m h#r« mpmiai there
not ipp«^r lA be tit!er#nce fmncienr to
the ia.serti«m of them either interaaag; or
struct* ve.
Fonr.tainh.id'f ucTiant^ aniler dates Feih 3S
an<l 2.:, I'^i-j '1 i>GS.oas, o7j of this pn>-
cr:H.ir», ia a.« UAloifB :
*< \r the Cnnrinal Court the ahaents (mm
the kiotr'i host in June txst, to the oamher of
.'^.j (yentlrnvn of Fife, are now paooeUeA.
N^rfa, thU d oot the thifi part of these »bo
'•vere a^l■ent in tiie shire of ¥\i^^ ami there m
aootiier indircment raiseti a^iinst th« rest.
*' Thf:y tint propooefi ^eoeral deteneei:
and aHeiL'^fj. that tbe\ having put oat their
nulUia, thfy w err not nlAar^ to attPOil in per-
ViH, t!.*r p^rLaiTient havia;; consei^tefl to the
rrni.tia i'l [.lace of that ienizwia. This was
ir;t ^:.a.xi<>"!. .^. Aitedgfed, the procamatioB
r:a!!in'/ t-^riv* out vvas oot published at the
liiindrMli !vfrif'rhr('«';i'.»..iiUHr.ol:»i4, iMvid flal- j HH'^i.f^k tp' .kfA-f.r^'A^es, as it expre«Iy bean
ftr.d ai*r nnis. Answered, Their privaie know-
le*!sy#^ .inr.f.:!'-'' ir.at defect.
'- Their p'^rticuiar defences (banded npott
flp«:ciaLtiHi, wf:r»f, 1. That some weie »tck.
liut the I^.rds toiind tesiificates from miai»-
ters, ph\ sician^, officers of the army, he. not
sufficient, without witnesses were adduced bjr
an excnlpatinn, for * testihus noo testimoniis
* est credendum,' See a pleasant Mnry m
Philip C.ominieiw* how Lewis llih of Fraoee
fined <;ome {j^entlemen for fl\ in^f from bis boat
acr^inst tli^ duke of Bur^indy, and tbej
ohl-refi to prove others were spared, who fled
0 miles fnrtljpr off thin they did. — ^Tbougb
pli \ sir-i;ui9 prMctiid a privile^ not to testify
iilKiii soul aud conscitnci-, j>t the justices de-
cliiiid, tlir-y w.iild reject all tesliticatcs tha|
iviinU'd it. '2. Ir ivas aiir-di^cd for some, that
th^y Heio past the kfre oi' oO. This was found
I lyiiif^ r.iljfdlii li;iv<r #:oifi|K:ipd Mirir I rtrh-vant, they provin;^ it instantly, proTidiiiff
' • *' ' ' - ' ■ '^ '^ - ''■' they had sent out their best horses, and their
liest men well appointe<l. 3. Some pretended
they were ofhcers of the iniiitia, and went out
With it, or that they had lamts in another sbirOy
and nnswcretl tliere. These were found rd»i
vant. 4. IJay of Unlkousie founded bisde^
fence on a nass to return fi-om tlie marquis of
Montrose, fiis su]ierior ofHccr: Answered, He
not lN;in£( in the kiii£;'s i^iiard, Montrose wa«
not his officer. Sdn. Commanders have no
|N)WfT to tr'tvK tlicni liciMiC4j to desert, else the
iialfof tlif! army iiii^lit be dismissed. Replied,
Inio, dtrscrtiiiGT is not libelled, but only not
coining. 2do, (irotius * de jure belli et pmdif
ifi very clear that other officers besides the ge*
niTal may i^ive * salviini cunductum de tb*
• drimdo,^aiid if the granter hare ezoeaded haH
fluty, then blame him. Daplied, deserting i«
« fin
p.-
I'"
Im ti
In
I'll 'Is lilt I diiy iiiid pl:i<U', in the hour of
' !•» |i;ii-i- In »rd iind m'iii diKiiri and M-nt-
, (If >ii'iiiii< III »if»inst liiiri for Lis rinnam-
.iit'l .il./dirif/ frui* bin iiiap-^tifH host and
II >»,ii>i| III, iiiid I'l liAVf (granted bond fur
il' til III !.:-. iihliiuc, ;ind ifiiio'l f'ai:tioti (or
' niiir^ III III • pi 1 v'lii lo l|uil #-ni'rl f:ontortiif
• ■ >.' i.h ill r liiuliill iiffic r>f flfiy hidilrn, and
ii"l I nil riiM'l iitir appfiiiind. Tlitr ionls
|iivi|. ■ i.ii,r,,|, jii.iir*- fU'ik and roininiKfi-
«.iMiiii Mil )iM-.l|i-i;n-|i-, tl»M-<-f«ir III- llir riioiitli of
.linm . Il» I t\ .''11, iiiiiriT 'if rofirl, ili'miicil iind
iii||iii|.ri't ilii^.iid .I'lliii \(iirrii\ of |*iil(ichi«%
l»i III oiil!;iiii- mid tii'/ilitr fiai' liiM iiiH|fHtieH
lii\«i -I, iiml In III- pull to ijif liorni' jind all his
iii'ii.ilili iriiriili. iiiid (M'lir III III* ifii lii>nl nnil iti-
lii<iii|rhl III mil i.f»Vf ii|i|rtii> lord's lifu*, for bis
liv< f'oniiiiipi Iind dpudN-du'iifr, which was
|iiiininiiiri-d liir duoin.
* So printed in the book.
fer Aiancefnm thi King's Hmt*
A. D. i6m.
c«
lUy and * per equipoUcns* Ubelfcd,
in •» l&r as tli« 4tll n«i v^ > M24, tbuuded
Upon, UMtimiiuls the oe the king
aigviost reMleri ; wlu* ' i _.trter» do not :
Mc act llO, p&rl. 142^J. Silo, Eslo inf«?rif>r
officers may (^tii turJoof»afid maBies * lem-
* norc padsV y^ ^^ ' in hello ^tin^oati/ and
Vf nen tbe army f^ *tnndin|f * in procinciu ;* tor
attUaniteir m iheir p>wer to dia-
mkaaU. fu lur Aytoitot Inchdaruic,
that be Has * m reueati luctn/ his only son
lta?tng l>i'i-n killeil some fifvr days before, upon
m miattke as if be bad been one of tbe arch*
iMsbopor^t. Andrew^a iimfd««nf ivhicb he
Wta not ; and Hm Jus No? el), say^, * per ooTent
^ dkfl non iuc^uirtiE^ur qui proakimi funus dux-
*jaiit.* 6. 8«ifne pfetcntkul that their wives
were then lyin^r dang^ei-ously sicW, or near the
lime of llierr delivery ; or that tbeir wives op-
fiosed ami c«jntradicte<i their ^ing". This in
mw m not relevout. 7. It was alledged thr
oiban^ that thptr houses, their horses and their
arms were plunderetl, and »o they neither
OOuid, niii were obliged in taw to go on foot ;
■lid they routd not at that time get other horses
to bi«y, they beintf all pirked tjp, — Becau«»e
there was a prei>umptioii ot* simulation in thi^
robbing, that it was caused to be done by
themselves, or at least by tht?ir wives to keep
tbem ai home ; iberefofe the declaration wiij«
offeri'l to them, uh a testifrcatton of their
loyalty if they to»»k it : but sundry of them de-
chned it, and otTercd to purire tbemsetvps upoti
imtbf thai there was no collusion. Yeu, some
apprehended that iheir def«?r>ce of ^ickne^s at
anrh a lime «« thin imt^til he niinnliite. 8.
fskniic denied thnt they wi-re bpriton*, and so
wer*- t\nt ohlii^rd to nttend with the gentry.
T^^ • craved they miglit then rfnount'c
Hi J -^sje to the kin*;, * ad reinutien-
* tintu, \i>svM'red, they Here not ohh^eil.
Replieil, Where i.ne is 'pijr»ned ibr taxation,
denies he is ain heritor, then the lords of
ion johli^ him to renoiiore. *), !S<jme
riifo-i tk,... *<^*'n* only upparetit heirn, sinil
l>t n* in ]M)ssession of nothing,
huL _ , iit«^. Answered, the right of
apparency lorleiii* hy the 6'>th act of purl.
154 (^ and m tht' ktoi^ has ri|;ht to wh»t iliey
miKbt «*ot'eh!t*d u*. to. Alledifrd for some,
they were only wiidsett^irs, or only pos'»t*satHl
* jure mariti,* or by the conrtcsie ol Scotland,
Vhere thev had married an hcretrix ; and fio
were not Ueritarii. Answered, Since the law
was so courteous us to ^i\& them thi^ Itti^rent-
courtPMe* tbfV ouf^tit to ite a* discreet and
thankfol an to det«Mid the law^ atid their own
j.,j,.. i ... ...I .. r ■' ^.f,,. ,yas 'jure feudali et
* (I dliii pro tempore et ud
* u,i.,4..- : ^.^ .,.i. liable to all i»«frvices. —
Qnirr. It a blench vjiBf^ul n'ho pays his ^ red>
^denilopro omni alio onere,* may plead ej£-
cmiHion from boats and raids ; certainly he
cannot. 11. It wan alled^ed for some, that
tliey had no itdieritance but some crofts and
burrow roods, within 100/. Scou of yearly rent,
lod so w«r« not bound to go out iii|)ertoa ultb
the heriioiir» their rent not being M% to sit^lsiit
ibem as hors«ro«n.-^Tboii^h they should go
and pmiteel their own propettf , yet this ex-'
ceptton seencia very rele^at* 1 hea rd t h e lorita
assfiilzied them nhoss bmfage was withiii^
300 merks yearly, as not hein^ able to keep i
horse on tliat rent : but what if they have m\
good fortune aliunde in money P Some malc^ 1
100/. Scots of valued rent the rtile ; and if they
have under that, they are not obliged to atlenil '
hosts and raids. The old crimtnal iiiljourrial ^
books mtrntion sundry excuses fur sitch »s ab< ^
sented theraselres from hosts and raids. Anent
the French ban and Arritfr-ban, see Craigf p.
213. 12. 8ome alled^ed they were merehanta
and burgevses within a bun^h royal, and
watched there. Answered, Since they i»«r«<.
Iiind%»itrd heritors, tht*v ought cither ' rtfutai^
*■ feuduni,* or else serve the kiug for theif
land. 13, It was contended i\it ai>me, ibat it
wau * res hactenus judicata/ for they had
been summoned to the circuit at Couper antl^
t be re b ai I ^H absol * i tors, A mw e refl , 11i e d let
there was only deserteil, and that did not huider
raising of new letters. Replit^i, It was more I
than .1 ' , for it proc^eeded upon trial o^l
the It their excuse ; and beinj^ found ,
just atii ^ir'<\< u, it was admitteil, and (lie^y as- ,
soilzied, 14. Allt<lj^etl for sume that were
ahscrtt from the bar, that they were lyinjBT sick,
in thflt they were within 16 years of ag^e j for
the law condeftoends npou nfi heritors bctvi rca
J i> and 60 I tait these were tt*pelle<l as not in*
<.Uinf!v v«n-irit'<t. riuil they were fiiiod* 15,'
I , <Scc. alleilged, that Ihey
\ t loyaltv,but wei^yuaMe
totra^d oit hor»eL>iLck for ttie gout, gravel,
corpnleucy, '^cc. but that they hftd sent one
more »umcitnt than themselves. Answereif^
Their serving • |K*r sulMiUtutuur did not ex-
oner ; which nee debated hy CrHig', dia^, 1^
lib. 3. 10* F<ir Lindsay of Uonbill it was^al-
Mged, That, hy a c<mimand of ]»riry council,
he was ordered to atteud them and tlu ir diets, ,
at the same ver^' time that the heritoi^ w<<re
failed out. Answered, * Posteriora deroytuit
' prioribuii/ and the proclamation calling tbe
heritors out wos after that act of privy council
anent him ; ami he shtiuld have olieyeil the
last. Kenlietl, the proclamation u as only ge-
neral, their order for hi* ap^»e»rdnce, under the
p^in of lOtOOO merlcM, (Hhich was uncertaia
when 4h**y nnifht call for him,) was special^
nnd * in toto juie ^eneri per speciem dero- %
* gatur.* — Besnh*«the foresaid nraark-*, having
gi*t a summarv ahhreviule of the derence*^ and
debalei with ttie atterlocutors tollou ini*' there*
u]>on, as they are recorded in tl»e Criiuma) A«l-
journul bookH, 1 thoinf hi tit also to insert them
* ex sujierabundanti;r here, Tho Ist general
defence i«, that the uh set, l*t pari, kingf
James 1, founded od, anf nt the ret using to en-
force the king agiilist notour rebels^ must be
co(i<^rucd and undento^^ only ot rebela^ either
convict or declared tngitive : and the 2Mh act,
9nd park J. 9, relates only to weai^on-shaw-
tng, Sdo, Th«t the procliiitatiOQ wu not iiiti*
43]
S2 CHARLES IL Proeudingi Bgahui tkg BfeMre Ueriion. [44
nate to the heritons and lieges, at the market-
cniss of the head burif b of the shire of Fife.
3tio, That the foresaid okl acts were made
when the king had neither standinci: forces nor
militia ; but now having both, the subjects
ought to be exonered, and the said acts not be
fouuiled upon. 4to, The king has indemnified
several crimes, except those who did- not assist
bis host* but they who sent out their servants
and horses did assist, and so are pardoned, and
cannot be pursued. 5to, They founded on a
letter, alledged written by the chancellor, in
name of the Secret Council, allowing such
heritors as were valetudinary, wanted norses,
or had any other reasonable excuse, to stay at
home and guard the country. — ^The first 4 ge-
neral defences were all repelled.
«' Then they came to the special defences ;
and it was alled^ed for
« Boussie,--^That he attended the host with
servants and horses, well armed ; but being
valetudinary, he procured a pass and licence to
return home, and Udi his horses and his servants
in his miyesty's service.
*« Hamilton of Kilbraclimont,— That his
liorses were robbed from him by the rebels, and
his servants were sick ; yet he furnished him-
self with horses, and followed the Fife heritors
to have served the king, but they were return-
ing after the victory ; and he offered to take
the declaration.
<< Law of Brunton,— That he was sick and
bed-fast durin|^ ail that time.
** Nairn ot Littleftiertown's defence was
sickness, and that all his estate was liferented
by his mother.
<« Lundy of Stratharlie's,— That his horses
were robmsd by the rebels, and that he was
content to take the declaration.
** Sir James Sinclair, Kinninmond, and Bal
birny's defences were sickuess all the time of
the liost.
*^ Beaton of Bandon, — his laily's dangerous
sickuess, his sending his servants and horses
to the army, and his taking the declaration.
<* Melvifi of Cassin^ay's, — a licence from
the captain to stay at home, his lady being sick,
and he wanting horses.
*« Durham of Largo,— his horses were rob-
bed by the rebels, and be offered to rescue them
by force, or to redeem tliem with money, but
could not have them. He offered to give his
oath that this was not collusion ; but refused
to take the declaration.
** Cowan of Corstone,-^his horses were
taken away ; he is no heritor, but only pos-
sessor and factor of an estate for his own pay-
ment, and the payment of other creditors :
But he refused the declaration.
<( Balcaiiquhall, of that ilk,»Thathis horses
were robbed ; but shunned to take the dedara-
tion for fear of disquiet from bis wife.
« Nairn of Sandfurd, — ^That he sent his ser-
vants and horses ; and being a captain of foot,
he endeavoured to cooveen nis oompany, but
none coming save ten, his colood sdjomed them
to aaoiber compwy
cooveen lus company, but
1, his colood adjomed them
$ and so his boiwo bring
^one before, he oould not get himself timeoudj
tomished with others : He rehised the ckcfai-
ration.
«' Moncrieff of Readie,— That his ladv being
sick, he sent an expert soldier with his novsas,
who were accejited of, and he had offered to ffo
himself if they had not been received ; hoi ho
refused the d^laration.
** Wcmyss of Glcnniston's defence is tfasr
same with Sandfurd *s.
*' Young of Kirkton, — his lady's dangerot»
sickness, and bitter curses if he should leave
her ; and the ap|iearance of abortioB upon his
offering to go from her: But he refused the
dedaratian.
<* Murray of Pitlochie, — ^That he bruiks his
little estate by the courtesy of Scotland, and
the heir is on life, &c.
" Muirhead of Linbouse, — That he wao
within 14, and so pupil, aud he coukl not gjo^
not being fencible : vet some thought in stncft
law his tutors should have sent out a man for
the land, even as onethat is past 60 should do."
Then he gives abstracts of interlocutors.
*^ Largo,* Corsteu and Bakanquhall wer*
unlawed in one year's valued rent Sandftud^
Glenniston, and Ueadie, were amerciate in half
a year's valued rent. — ^The diet was deserted
as ta Holbom of Menstrie, and Gideon Murray
of Pitkierie, and others, it appearing that ther
were past the age of 60. So thm is shnsit
room left for that question, whether annus 60
inchoaiui (as heing^'in materia favorabili) will
excuse, or if they must be 60 compleat. The
declaration was offered to none whose defence
was sickness, or who had any other defenoo
that put them beyond a possibility of aUendiog.
** I heard where there was a liferent and a
fiar, that the (iar was found liable to attend the
king's hos^ and be at the expence of sendioflr
men ; yet it would seem mucn more equitable
that the Uferenter who posseses should be liable
for tliir onera fundi realia^ than the fiar {
* Onus temporariae indictionis ad fmctuarian
Vpertinet. 1. 28 D. de usu et usufir. lesatot^
For it is a real burden, and Uferenter* shouU
bear it. See Nov. 1673, f. 228. For Physician^
vide < Mattheeus de afflictis dccis. Neapolitan*
< 41 ; tot. tit. Cod. de professor. etmedicM.'
The lords were inclined to think any eminent
physicians wore exempted as to personal at-
tendance, but these who were sahiriat to attend
the army; only they should have sent"
He has also another entry respectingjprose-
cution of persons for absence from the Kinff'd
Host: •
<< March 6, 1680. At the Criminal Conrti
some heritors of the three Lothians were pan*
neled for absence from the kinff's host. Jamoe
Ellies of Soothside, Durham of Duntarvie» and
many others were fined, some in 1000 merksi
some in 300 merits, some in more, some in'
less, according to their valued rent; ud the
loids proceeded with modeaietion enooglu
«<Iallr.WiiliMnCaiM|y't<
tS] PrccttdingBagaimtikiCardMtt^fEarltit&m. A/D. iSfid.
ri8
ofCowburu, tl - : ue of his bdog a mem-
ber of die co istu;e was pro|»uDe(l» to
caUKin liiin Irum personal uttiniaiitice at ihe
kiog^t host, am) wan repelled, as I hear ; btil
tt wm neiUiiiir hilly debate, nor the acts in tlieir
immn shown ; and therefore tlie ctiTnltiiU
lords Gontioued the diet against Mr. Thomas
LearmoQt, Mr, James Hunter, and the other
ftdvocatea who were convaened far thdr ah*
•cnc«f) and had gt)t iDdictments and citaboni
for that dTecl, and they forbore to insist agpainst
tbeiri. It may be alledged for advocates, that
thev are not obliged to attend boats and raids,
anci a man in arms for them ; and ought not
lo be pursued for ahispnce therefrom: Imo,
ll«ettiae the iU^man law exeems and pririlegcs
them ^ah ^minibus tunctionibns proviocialihui,'
II. dp ac 6. C. « de advocat.* diT. jud. el tot. tit.
it re 1 J Lid MIC I
<fe«ar« et tMdkk % imino tk ffioo*
: oth(»tVed there ftAfvna. %^ llirf ^
by an GxproHittotof Bed«runl muM
by the duke of Chattidh«mit governor m 13^4
3tio. In June 1a«t the Lords tat alt the ttous of j
the raid and campaign, and ao odi^neales etmM, j
not warrantably desert their ohenta vi^un qqo* j
tmry to their oatli de Jhielit nod of atlendnifp S
the Lords* 4to. By aote of aecrst cofum*^
then made, the college of justice were fuKd *
mto a cotnpany, lo help to i^ard the town of^
Ediuburgh, and they chused their captain,
lieolenaot, and other officers, and got arms
from the castle, and marched, and «lrew up,
and usefl ditcipUne* Nota, This makea not
agKinst the colle^ne of justice, for Mr. William
Cwsaly IS deprived ftom being a writer to lh%
sigTkei.***
826- Proceedings against the Gordoxs, of Earlestoun,* and others^
for Treason: 3^ Cha^rles IL A. n* 16S0. [Now first printed |
from the Records of Justiciary in Scotland.]
CoftiA Jv9ncuAtMt 8. D* N. Re^s tenta in
prelorio burgi de Edinburgfi decimo oc-
tavo die meosis Fcbruarii, 1680, per ho-
I liorobilcs viroidorainosGeorgiiim M*kcn-
^ zie de Tarbel Josticiarium Gencralero,
Thomam WaUacc de Cratgi*, Justiciarie
Clcriciini^ Uobcriorn Nairn de Strathiird,
I>av'iilem Balfour de Forret, Darldem
Falconer de Newtoun et Rogernm Ilo^e
de Hurcarss, coinmiaBionarioa Juaticiariie
dictii H. D, N. Regis.
Curia legitlime offinnata*
The isaW day anent our soveraigne lord*?
criminal letters raised, used and c^ecut at the
hiatance of sir George M'kcnzie, of Rosehaurh,
^or soveraigne lord's adrocat for his hyiKS m-
• 8et* in this Collection, the Introduction to
the Trials for the Ryehou^e Plot, inserted in
tol, 9, paiticularl ' t^t 8e<j. 8ee, aluo,
as to the torture ' i im and some other
partirubrs, vol. (j, pp. i^'ii, ct tetj» and of the
10th volmne, pp. 751* et acq*
It appears fi-om Wodrow, iTtat Oordou, of
^udr^itouM, haTing^l>een, together with several
other per^iona, cited to answer for being pre-
sent at Houte and Field CoiiTenticlcs siuee the
year 1674, and for reset and conrerse with in-
tercommunefl ponKOti^i, ami not compearing,
Ufaa with the rest, on February 18th, 107 9, or-
id«fed by the Council to ht detiomieed, and put
iQtliebom.
Upoti I Fjtb, 1679, the Oocnci! ap-
fc'i riofa rommittee of Ptibuf?
lo Uw tbllowing effect : *^ That they
WtH a letter of thankn to C. Came and
"fVuiHtm Camiichael, sheriff- depulcH of Fife,
for their dili^ce in ^csrcliixig after the mm^
4eTtri of tb« primate ^ and Ind impowered
proTc '
terest, and also at the instance of lievtenaiil 1
collonell Edmond Mayne against master WiU
liam Ferguson, of Kellock, Mr. >VilIiaui aul i
Alexauder Qordoos, of Earlatomi, elder aud
younger, and James GorJon, youut^er ofj
Craishley ; and alao aneut our said soverai^nt j
lord^a other crimtnall letters, raided at the in* '
stance of his majestie^s said adrocat far hip <
hytiesentereBt, and Uertenant colonellJames
liouglaes, his infortner agaivest "- ■ Gordon,
of CulTenan, — Dunbar, of Mnchrimore,
and I M*Ghie, of Lai^e, mak and men- j
tion, That wher notwithstanding be the comrooa ]
I awe, la we of nations, lawes and acts of per- i
Itament, and constant practice of this kingdume»
the ryaein
Dumoer of
fing of his majesties subjects, or anj
of them, the joyning and a5semblein|f \
them to secure and put under inTCntftrytbt!
goods of John Balfour of Kink>cb« Maekstouo .
of Rathillet, the three Balfonrs, in Gilstoun^
persomi most suspect of the murder, until thejr
them9€»lves be brought to a trial : thai they had
called before them ten persons apprehended in
the south by the laird of Meldrum, two of j
which^i^ohort Ncilson and NIcol Story, caii J
make great discoreries of Welsh his haunti
mnd reset, Neilson baring confessed that h«
rode wiih him and Btory ; that he collected
contributiotis at their raeetingi*, rolls of which
were found on him. They are neTuittctl lo tht '
adrocate, with other four prisoners sent in *
from Air by caphiin Murray ; and are to coti«
linue in prtson till they reoeire a hl»ci tor b©» <
rng at conventicles. That the cautioners of 1
Mr* Alexander Gordoo having forfeited thdrf
bond, by not prodncing him, be dmrged M .
ftre thousand merks ; that Mr« Andrew Ken* 1
tiedy, of Clowbuni, uptm reftnlng to depoo^ j
be held •• confess, aud fined hi a iboostli]
4
bi
32 CHARLES II. ProeeedingiagaimitheChrdaMofEarhi&un: [48
Ucal, are most •detestable, horrid, hynotu, and
abominable crimes of rebellion, treaaon, and
lese majastie, and are punishable with for&ul*
ture of iyfT, lands, beritas^, and escheat of
moveables ; and be the third • act of the first
parliament of king James the Ist, it is statut
and ordained, that no man openlie nor nottoorly
ceptM'Ghie, ofLarflf, who is coutinaed until
the second Monday of June."
Under date Aug. 21, 1G83, Wodrow writes,
*' Earlstoun's process before the jnsticiaiy
is very short, upon the same day. They pro*
oeed upon the former sentence, and only nam*
the day for execution. ' The Lords find the
* pannel, Alexander Gordon of £arlestoan| was
* found guilty of treason by an assize, Fe-
< bruary 19, 1680, and ailjudged to be exe*
* culedand demeaned as a traitor, when taken ;
* being now apprehended, he is sentenced to be
* beheaded at the cross of Edinburgh, Sep-
< tember 28, next.' This is all I find about this
gentleman in the criminal records:
" In the Council llegisters there is much
about him, but I shall not enter into any larger
detail of his affair. He was taken ffoing to
Holland the last of May, or first of June this
year, which made a mitf hty noise, and people
thought a great discovery would have been
made; every body was upon the scent and
chase as to the plot against the kiug*s life, and
the council and bishops hoped for wonders out
of Earlstoun's papers, but there was nothing of
that kind to be fuuqd in them. The real ac«
count of that matter in short stands thus.
*^ Earlstoun had been abroad very nrack
since Bothwcl ; he came home this springs,
andjoyncd himself to the society people, where
he was safest from falling into the manager*
hands. In April or May, at one of tneir
general meetings at £dinhui^h, I fmd, by the
origrjnal records of the societies, that he was
pitched upon by the general meeting to. go
affain to Holland, and joy ned in a commisston
With Robert Hamilton brother to the laird of
Preston, his brother in law, for representimf
the true condition of these people and their
principles to the reformed churches abroad, f
nave before me the copies of their commissioa
and instructions, and several lotters and repre- •
seutations they sent with him, too long to be
insert here, but they have no relation at all t»
the Jilnfflish plot.
** I nnd by an original letter in my hands
from Earlstoun to the societies, dated New-
gate, June 9, this year, that when he had got
safe to Newcaiitle with Edward Atkin his 8er«
vant, formerly spoke of, and was aboard a ship
for Holland, Kome waiters came and challenged
them being strangers. Eurlstoun fearing the
seizure of the papers he had with him, dropt
them into the sea, where they were noticed,
and taken up, and both of them seized and.
sent up to Newgale, whence they with the
papers were sentoowu to Scotland to lie tried.
*' June 2. The council write a letter to the
47]
Cogither in armea without and contrary to his
tnaiesties command, warrand and authoritie,
and the abating, assisting recepting«nd keeping
correspondence with such rebel Is, and supplie-
ingof them with levies of men, horse, money,
orarmes, and furnishing of them with meat,
drink, powder, ball, and other munition bel-
merks ; that Mr. Robert Maxwell, now cour
fined at Paisly, because of his great age and
infirmity, have the diet continued against him,
he finding caution to appear when called, un-
der the pain of a thousand merks ; that, upon
the testimony of the archbishop of Glas-
^w, Mr. John Law be dismissed, upon cau-
tion, to appear when called, upon bond of a
thousand merks; that Bennet, of Chesters,
continue in prison till he receive an additional
libel ; and Scot, of Pitlochie, and his cautioners
be cited to the next council day."
The Council also continue Eariestonn's case
till next diet.
The Gordons, of Earlestoun, elder and
younger, are mentioned by name in the Pro-
clamation published by the Scots Council, on
June 2C, 1679 (inserted, N"" XXX, in the Ap-
pendix to 2 Wodrow) by which the king dis-
charged and prohibited all his ' subjects, men
or women, that none of them offer or presume
to harbour, reset, supply, correspond with,
hide or conceal, the persons' therein numerated,
or any others who concurred or joined in the
late rebellion, or who, upon the account thereof,
had appeared in arms in any part of the king •
dom ol^Scotland.
Wodrow, in relating the transactions at
Bothwel-brid^ [June 92, 1679] says, *«Whe-
ther it was this dtky or the following, I know
not, but at this time that excellent person,
William Gordon, of Earlestoun, who was com-
ing up to the western forces, was killed by the
English dragoons." It seems to be clear that
the person spoken of in the above passage, is
the Alexander Gordon, elder, of the Case be-
fore us ; for under date February 18th, 1680,
Wodrow writes, " Mr. William Fergusson, of
Kaitloch, Alex. Gordons, elder and younger,
of Earlstoun, James Gordon, yoiuiger, of
Craichlaw, William Gordon, of'^ Culvennan,
Patrick Dunbar, of Machrimour, and
M'Ghie, of Larg, are called."
** It hath been remarked before, that Earies-
toun elder was killed about the time of the de-
feat. This ^ood man is prosecuted afWr his
death, of which we shall meet with more in-
stances." [See, too, in this Collection, vol. 2,
D. 707, the Case of Robert Logan, and the
Note at the end of that Case, p. 722. See,
alM, Laing's History of Scotland, edition of
1804, vol. 3, p. 54, where it is said, «< Ac-
cording to a le^al maxim that no person can
be condemned m absence his (Logan*s) bones
were dog up, and in parliament produced and
srrai^ed at tbe bar "] « The prepared witnesses
depone as to their accession to the rebellion,
•Ad they all ire ferfeitad in common form, ex-
lituaent, ftistttatut^lUatciomem wilfuUie rece|it,
^nuyor of Kewcasillc u|>oq thts ufiair. * Sir, We
/ received jour cf^K^rtiiif, wlicrein yuu ae<jiiniQt
* UA ivitli iwo perKuns aptiri'lteiiikJ ami com*
tnitU'ii to hig iiinjffttv » gaol iik your toivn,
with whom arc lound sc:vcTttl M;ditioU9 papers
anii liHt«r5, utidlbat these' (uMsotiH nere ^ouig
bej^oml !tL'u» trndtT ilie T Alexainler
Pi'iiiglo ami Edwaril 1 , but were
hy voiir T - \<'ntc'il, uuii muir papers,
U'htch tl : lod to destroy, preserved.
P Colonel S-, «,,..- ;iUo liaili sent us copies oi
f some of tlie*e seilltiouij paptrni, the ongitmls
* whereof yoti have done u ell to send to bis
* luniesty. We are very senstible of your care
> arid zeal tn his tiirtjesiy*s service, and return
~ yi^u thiiuks for nc(]uaiutin^ us therewith, and
desire you may be [^leased in detain them in
Aeparate prisoos, ainl continue your care in
searching for susj^et petsonB, |;mUy of pur-
suing ju'ditious courses in this kingdouQ ; for
we liave reason 1o (lelyve that several reliel-
preachirs, aud oUier fugitives from Justice,
, do iurk concealed in and alioui your towa.
* We shall not he wanting to iiiforru his tnajesly
* of yourzeaJ iu his service. Yours, &Cp
* Aberdeen.*
^* At the same timethey write another letter
coloDel Strulhei-?, signifying. They received
13 of the tirst instant with the copies of some
pf the pup4H^, thank him for it, and desire Inm
to continue hLs diti^ence in discovering^ seili-
lous aod suspect |»et'Soiis in tin? North of
"iogland.
The council were very e^tact in the exa-
jnatioii of all the papers, when sent down lo
tcin. They drew up their (|uerics lyid written
answers from Earlstoun ; he wus mo^t Ingcs
Ituous in giving accounts of ull he knew with
fcspectto the paperSi as I find by a copy of his
«aswer!i to the council r|uencs, and there was
* ideed nothing in tJiem save fornmi^Hions and
itruciioDs to htm and Mr. Jlumi1lon« with
etters to some Dutch ministcrii and >krot^JMen
Holland^ and papers on civil busiiiesM. And
ter all their endeavours to find Bomu%^ hat re-
live to the Plot, they could fix upon nothing",
T nothiii|2r was to he fouml of that nature.
** Nevertheless the mana^ei-*, ufWr the jus*
ary had renewed their (ornier !$cntence of
lieath n\Mtn him, resolve to put him to the tor-
re. And liein^ sti aitene<l in point of law to
c of deaths the
• Liht honoumbfe,
I it Lirlstnuu having
I ; ^ I ri , md examined
Imri! vxliiMM, It Sterns,
can he had from all the iuter-
ro|f;» i^y could propoHc to him, than
what hath bemt alfc^y put in writ, anil seut
to his royal liighiMms •tid your Ivrdttiipi and
VOL. XI.
orture a ]»
[.council V.
^ by liio council and j
C* tiieir iiijiitlti:i, niul
' not'
itaiiie or doe favour lo optn i
ht*\h agairM<t Ut^ ni jjesiir ;md the commi*vi lawc,
under the paint: of forfAltuir ; and be the lour*
tdnt act of the sieijtl parUameuL of king Jamei !
the council having had under their c^mKiileni-
tion what is further to he done anient him, h« ]
Icing a person under the sentence of deaiJi
for hijiifh treason, thought fit, in regard ther<i
are only in town three of the justices, th«
rest not being' to l»e here till Noirember, lo
desire your lord*(hi p to take a<l v ice of his ma-
jesty *s advocate, (now at l^ondon) if by th«
luvvs of this kingdom, and in thq circum-
stances he is now in, bchtg under ihe sentence
of death, he maybe put to the ijuestion by
toiiure, upon such pertinent questions as your
lordship and he shall think fit to <liaw up,
And if he find that he may, hy the lawt of
tliis kingdom, be now put to the torture, that
Ibe advocate, as soon as may be, come dowo
himself and answer any thing that shall
hapj>en to be objected agaiust ii by the said
Earlstoun, or send acommifision to some fit
person to do it for him io absence, against this •
next council day, September 11, with such
interrogatories as shall be thought fit to hv
proposed, that tivc council mtiy do justice in
that matUT, The justices having met this
day have given us an account, that they hava
ap|ioime<l the 28th day of 8epleml>er for
putting the sentence of death in e^ecutioii
against Earlstoun. I am, 6tc.
* Aberdeen, Cancel* I. P. 0.'
" Ad answer came not t« this letter until
September 20, whtn a letter froui IMiddleton,
secretary, dated Heptember li, to the chun-
ceHor, is read^ and follovvs: * My lord, In an-
swer to yours of the 2 l»t of August, Iain
now by the kind's command to aci^uaint your
lordship, that his majesty in a full Quorum
of his privy comicd of Scotland now her^
proposed to his advocate, wliether Alexauder
Gordon late of Earlstoun, notwithstanding of
his being condemned to die, might be put ta
the que^ition by torture. II is answer was,
thai though no man can be put to turtu
upon intemigatories only rcliiting to thecal]
for which he was condemned, > ct he tnay 1
tortured with i^latiuu to plots, conspiracies,
and combinations that have happened after
the time when the crimes were comuutte^l
for which he was condemnetl. Aiitt sinea
it is undeniable that the said Alexander Got* ,
don did accept a treasonable coiiimii<^ion from
reb«U, and it doth api^earhy a letter direct to
him from J. N. d>ite<t ai London, i^Iarch 'JO,
last, that he was privy to the late horrid con- ^
spiracy again&t his majesty's persou uud go-
vern mt tit, and yetrt^fiist'ihto give an acooiml
cither of those from whom h*? received tti#
said commission, or such a:, he knows were
accessory to the said cmispiracy, aii«l boib
these points beinc of *>> greai c«iii5e(|ueuc^
fur the future set ^ majesty's |»er90ii
* atid g«v«ruiii«ai« /i;for* moliied hy
J
5IJ
3a CHARLES II. Proceedings against the Gordons of Earleitmn; [Mf
the 2tl it m slatut, that non rebc^il againest the
kingr'n jiersoo or autboritie, or make warr
fl^ramni the king's [tfidfjeu, and nlioso does in
ihecouirAir U be |>itnishefl cHer tlte quuhtie
and qaantie of siu-h n?belliou ; aod be the
ti»efity fyft act of his first |)arltumt*nt, h is
italiit» tfiat if any maa commit or doe trea-
iOfl a^aiiifst the king^^ person, or rysc in fear
of we.^r flg^iinest hirn, or recetils atiy
tli:il hn$ comiiiitUH) tJ'eiunn, or i«uf»|>lies iheiri
In helji, redd or council), shall lie iiuiiished as
troitorH ; and be the H4 act 12 pQTlitinieiil king
Jame^i (5, it is stJitur, thai wherever any de-
ct&ired traitois repairs m any j^artoflhi^ kinsjf-
itniiienou of Ut^ ruujestie^s leidf^es shall pre-
sume to rerept, Rupphe or intercomon with
Ihcm nrpvetliein my relieti' or comfor! ; and
that imnieditttcty upon knowleilore of iher re-
parring in the bounds, alt hi« majesties obetJient
*ulye<.'t» doe ther exact diligence in searching^
' and appreliending- the saids traitors and rebelts^
and that with all speed they certifie hin
Riajestie, or some of his secret councill, or sorae
permits of anthoriiie and creiiit within the
«hyre, that surh reMls are wiihin the same,
tinder the pnine tliat tlie $;aids rebelU an<l
traitors on^ht to suMuine if they wer a|tpre-
hendit and convict be josiice : lykeas by the
fyii act of the Hrsl sessi^m of bis majesties first
' his majesty, that the said Alexander Gordon
* shall be put u> the (ortui-e, and tnterro^te on
* what may jiertinentlv relate to these two
* he^ds, to Hit, as to those who have bad ac-
* cession to tbe tjmniing the said commission,
' or the said conspiracy, of which it fa his ma-
* jesity's pb'asure you acquaint tiie lords of his
* privy council. 1 am, <ic.
* Mu>DLCTON.*
" In pursuance of the above letter, thecotin-
eil thai S4)fi»e day noniinate the marquis of
Douf^bus, earlts of ^'w^ddale^ Wintouo, and
Ijiulitht^nw, the loH Livin'^touc, E^tneral Dal-
ziel, 0»e pre«tideui, lord Collingrtonn and ('as-
tk'hill, or an^ five of them, aj* a committee to
meet Tuesday next, at ten of the clock fore-
fiiH>n in the ordinary place, and consider the
lot* rrO|;iilonL"R to be' put to the said Alexander
Gordon, and nee him questinned in th« torture
upon them, and others arii^in;^ fiom theiUi and
"' , with power to them to do all thmf^
to that puqro^e, as they shall see
)tid ontaiu all the membf^ri of the
iirt to be present, and Mr Cieorj^e
<»,i, L ;u;in» ..r,K... • -it^ from tbe
advoc^iiff* to 1 rrtintmtre*
]AUn'^ to thL* X . ., ., „,.,* 4ij bo present
wi h the conmiittte,
♦* Aor^.n^ti'^/t'/, Sr-:>tni]lipr 2j, the foresaid
#oiki lu^ witli the in-
still I : 'ly, but did not
apply ti^ \iv ytuirftiiU)* Lr would be a« incfe'
Kmou-« fit*f! nK't e TmII thnrt he could be in tor-
inrf lid hij( answers
•rr Sprat, lale bisliop
«f '^ Li^^'^^c^i*^ J iii« account of the
parliament, it is declared^ thai it shall be hytt
treason to the subjects o( this kingdome, or any
nuralier of them, more or lesse, u|>on any
t^round or pretext wliatsomever, to ryse or
continue in arrays, to make p€^ce or ware, or
to make any treaties or leagues with forraigrne
princes or estates, or amtJnqpHt themKelvtti,
without his majestie's specjall authoritfe and
approbatioa <ir«t iutcrponed thereto; and all
his majestie^s sul)jects are discbarofed UfM>ii
any pretext whatsomcTcr to attempt any €>t*
these thiufj^E^, under the paine of treason; and
be the eleventh act of the first stsMoooflLif
maje^tie's second parliament, it i» statut and
ordained, that in tyme coming in all ca^^ea of
treasonable rysein^^: in armes, in oppin and loa-
nifest rebellion, ag^ainst his majestie and hia
authoritte, his majesties ad^ ocat may and ought
to insist ag'ainst and prosecute such persons, as
be shall be ordered by his majestie or his privie
councill to persewe, and if tliey be cited and
doe not ap|M'ir, his majetftie's justices, notwiib*
atandiit^'- of ther absence, may and ought to
proceed to consider and give ther iuterloquitor
upon the lybell, and if it be found relevant to
adniiti the same to the know led ei-c of ane in-
quest, and upon the verdict of the inquest find-
ing tlie samen proTen, the doom and sentance
of forfaullure oug-ht to proceed and be ^reo,
Rye-bouse Plot, though with some mistakes;
and so I shall not say any thing' of them here,
but that neither the IHot agninst tbe king*9
hfe^ nor the design of risin|^ could be 6xed om
this gentleman, or the people who sent bia»,
who really knew nothing of the matter.
** All I find further in tlie He^sters upon
this gentleman's case is, November 23. ' VpOti
' a new letter from the king, the council order
' Earhtoun yet to be put to tlie torture : biit
* when he is brou£|^ht in, he appears to he in
* diffraction, and phj^sicians were calleil to
* consider his case. November 27, thii phy-
* sicians report he is affected with that distem-
' per called uUenaiio mentia^ and advi5;e be
* may be sent to the castle, that by the change
* of the air his case may be liettcr know n . f>^
* cember 7, Earlstoun jK^titions for pious di-
* rines to be sent to him, thai he may have
* their benefit before his death, and as a dying'
* man declares his innocence of any p1otap^Ii0C'
* his majefty, prays for the kin^, and adherea
* til the answers he gpiive lo tbeinterregfatories,
* He is reprieve^l till the laiit Friday of Ja-
* uuary. January 17. Karktoun's reprieve is
*■ continued till tite last Friday of April, and
* his peiiiion for pardon transmiUt d to the ae-
* cretary. April 11, he is r^--^ • ^"i «'r^iri till
* Dcceml>cr. And in M\\\ ihc
* lliis.s for liis hr-ukli. In ^1 ^ : 'uing^
* ! r/ 1 bus he con-
wiih more Uberty,
vuh bis excellent lai^^
tty tbe rcrolution. And
imps and manBiiners,
king's person upon
i
I
I
and MMi»*jti
until he w
aUihf^
to lix til
Bcolgi^i^Uyieuuuy, catue to uotbiii^*^*
SS]
/or
A. D. \6m.
[5*
^od pi'onuticred iti the same Tnanoer as tf the |)eJr-
stHMH accused bail coiupeired aud wer pr^seat ;
uevertheiesMj the saicl^ Mr, VViltiam Fei'^u-
son, of Keilock, Mr. U tlUam aad Aiexander
Gordons » of Kartestr^uu, elder, and y 01111^1%
JaDii'U Ciordou youtig^er, of Craisliley, -*
Gordcii !il'Cul¥fnaD, — DanbarjOfMaeh-
i-iinoii^ and -^ M^Ghic, ot Larg^e, and tluT
relidlious ussociates and accomptirrs, shacking
ofl'ail tear ol God, conscitiicc aad ^tasts of
duty, alteg^iaiit'et and lo^attie to hii majc^stie
tiier sovcraigae and uathc prtoc«, liave inosi
peHidiuuslie and irt^astmablie presuuied tn com-
initt, and areg-uilty 0* tTyroei* abo^e meationed
ID suulkre, as Juiid BnUour, of Rinlock altaji
capt. Burlidi David HaekitoUf of ItaUiUet,*
George Balfunr, in Gilhtuun, James Uussill,
in ketle, Kobf^rt Dine ^ til K a tenants aon,
ia Caildom, Aodrew liuiHan >V obiter, tu
Balmirinoch, Henry scms, sons to Joho
Henry son, in Kilbraclunont, and Genrtre
Fleyining', mti to Gtrorge r leyinini^, in Bal-
buthie, these impious and sacraft^ious murders
and murdering" reftiruiers, who to pn^ate
cbristiauitie, like Jesuits «ioe ii)iirder<;hrystiaus,
these enemies of mankind having gone in
April last tu the ton a of New mi Ins, in the night
time ibey did murder in cold blood f
A souldier in captain f compante,
aad left another of iha saidfi souldiers for dead t
* See his Case, Vol. 10, p. 791.
•f- Sic in Orig.
t Of this transaction the following is Wod*
row a account:
** From the paicellinif of the soldiers up and
clown, and their numbers 11 rid activity, the
keepers of conventicles were obltpred a iiltle
to alter their method. Tn»urds liit* eud of
ihB Laat year, [167B] «ome mi nii^ten/ began to
withdraw from preaching" wiiii tbeir bre-
thren, with wbotn they ussed to preach in the
fields formerly, who were now for entring ei-
ther upon the indu Igence or cess in their ser-
mons to vulgar auditories, and drew up with
the young preachers 1 have formerly spoken
of, aud continued to preach together witti them
pretty much on diese pointa this winter and
spring. Some papers before me, writ by some
4)f that side, say, Th;it (iekl meetings in the
beginning of tliis year were more numerous
than formerly, and many were obliged to come
with arms to defend themselves, becau^ they
were trequently attacked by the soldiers and
garrisons ; and for their safety as well as har-
mony, the miaistersandiuch who waite<l iipoii
them, resolved to keep as close together as
might he. They bad tbund that by preaching
in separate places, and scatter iug themselves,
iJiey were very much weakened, und the sol-
diers got advantage this way against them,
and sometimes the mioisterfi were in hazard to
be seised, and several of the hearers were
taken. Therefore they determined to narrow
themselves into one meeting iu such places
which stood most in need of the gospel, and
where they isigbt gather and preach in the
iud therefter having conceaved acnminalland
deadlie hatred agamest his grace the late arch-
bishop of 8t. Audi'CMs, and U|iou the thiid day^
of jlluy li)st, having cruellie, impioiu^lie an«l
sacralegiouslie murdered him, the\ U* esciipe
justice utiil iijFoive others in thei ^tiilt (^tiH
ftilslie (irclcnding pietie and religion, goe iut*r
the VVestenie shy res, and nnisi trca^onablie
jtiyue in arfnc^J with Robert HauMlimm, bro-
thfrrtothe laird (d* Prestou, Mr, John K.ae^
and titer accomplices* d<ssoUit and Aagitkiu*
peraoHii, to the number td' threscore aud up-
wards, who, upon ihe twenty nynllt <lay of i
May, a day appointed for a solemn annie*
versarie thanksgiving for his majesties Hestau-«
ration to the roy nil government othiskiogdorMej ^
did goe to the burgh of Hutb^^rglcn, and tber
most proudiie end treasonabtie haviit^ read actt*!
of their own coining, sihackiug olfther atleag-* 1
ance to his mjijestic, they most treason a btie and j
wickedlie burnt several! acts of partiafuentt as^
sertioghis niajestie's prerogatives, and tsisd>fish- ,
iogthegoverutneot of the church, droivnetlout
bonefyres sett on in commeration of that doy^ !
and therefur they trcusonHblie 4'0nvi»eat and J
assembled togither, the nmuber of four, rive^^l
aex or nevui hundrcth, or thereby, and did J
waylay a small and few company of men under ]
the command of the laird of Glaverhoiisei J
and did tnust cruellie murder and kill simie iiCl
greatest safety* Thus they cimtiinwd lor i
twenty sabbaths without intermiFsiMn Iroin De*- 1
ceniber to May. I do not doubt htii this ci»ors#i
thev took tended to heighten the separation j |
and when they were uh>ue without cou\ersiny j
with others, and preaciiint: iviili jicrsons morel
moderate, severuls who joyned mth them dii'j
heiglitcn the breach, aucf serrw up matt«'rs tliej
length they came to. J^Ieanwhile^ ilr, Wetsli'j
and others of his temper preached in otbe
places, with whom there were not many itrl
arms, aad endeavoured to calm matters
much as might be.
** lJ|»ou the 30th of Maj'ch tliere vas a ser-l
men and large tneeling at Cumbeihead, mi
the parish of LesinahagOj not tkr frotn Lanerk.i
The soldiers hearing of it, sent a good body nfi
men to dissipate thctn : Tlie patty undei^itand-
ing the numbers of the iiR^etiTtg, aud how weU
many of them were armetl, did not Hnd it con*
venieot to attack ibem ; but kept at some rlis-
tanre, and satisHed themselves with nHmn some
women, who were going to the me* iin;^'', of
their plaidj«, bibles, and the like, and seizing
some men. This coming to the knowledge of
the meeting, a good number was sent off iu
arms to recpare the prisonei-s, and the womeos
plaids, Sec. The commander ef the soldiers
refused both, and a scuflle ensued, wherem the
offictr WHS woundeil, aud some of the soldiers
taken prisoners ; but they were soon dismisaed.
When the account of tfiis came to Glasgnir.
my lord Bmhs aad the soldiers there^ ma^ch^Aj
lip towards Lanerk, und the country thercalf<
was sore harrastsed for some weeks.
** The accounts of this icuffle catue in to 1^1
I
32 CHARLES tl. Proceedings agahiat the Gordons of Edrkiiaun. [6(
persons who (last upon &e assyieof Oordom,
of Earlestoan, and others, returned ther ver-
dict io presence of the saids lords, wherof the
tenor followes :
The assise all in one voice, be the mouth of
sir Patiick Nisbet, of Dean, ther chancellor,
ffinds Mr. William and Alexander Gordons, of
Earlestoun, elder, and younger, master Wil-
liam Ferguson, of Ketloch, James Gordon, of
Craichley, younger, Gordon, of CuWe-
nan, ^— I>unlMLr, of Machrimoir, younger,
^iiihie of the crimes of rebellion and tr^^n,
in rcs|)ect of ther accession to the late rebellion,
conibrme to the depositions of the witnesses.
Sic SHbscribitur^ Pat. Nisbet, Chan.
6SJ
fries ; that he sawe Gordon, of Culrenan, in
armes with them at Hamilton-Muir, as also he
sawe master Samuel Amot in company with
them at Hamilton cotiM icientiit : he sawe the
saids persons at the jplaces forsaids and knewe
them belbr ; and tliis is the truth, as he shall
answer to God, and this he 'sawe a fewe dayes
befor fiotliwelbridge.
Sic Subscribitur^ J. M'Culu>ch.
Robert Park, messenjzer, at Sanquhar,
purged of partiall GoandU, solemulie swome
and examined, depons he sawe the rebells cuter
Sanquhar some fewe dayes betbr the feight at
Both wel- bridge, in armes, with drums, collora
and ane trumpet, depons some of them took
free Quarters, and some not; that amongst
them he sawe Gordon, of Earl^toon, younger,
Ferguson, of Ketloch, Gordon, of Craichley,
younpfer, in armes, and that be sawe them
march away the nixt momine with the rebells
towards Cumnock, depons &ey came in to
Sanquhar with ther swords drawen under the
notion of three captaines, and this is the truth
as he shall answer to God, and depons be knewe
the saids persons formerlie.
Sic Subscribitupj Ro. Parr.
William M^Geornty toun clerk, of Dumfries,
purged of partiall rouncill, and soleinniie
swome, depons that he sawe Gordon of Earles-
toun, elder, in company with the rebells,
marching throwe Dumfrcis in June last, a
fewc dayes lM.'for Bothwelbridge causa gci-
entia : he sawe him at ane kirk befor, and he
was called Earlestoun, elder, by those wer
present, and this is the truth as he shall an-
swer to Go<l.
Sic Subtcribitur, W. MArcEORGC.
Hu^h M^Watler, in Stonrares, being so-
lemnlie su«»nie, purged and exaniinei), depons
he sawe Dunbar, of Machrimore, voun*^er, and
Gordon, of Craichley, in armes with the rebells
at Haniiltoun-muir.
Sic Subscribitiir, Htcii M'WATrER.
The lords ordaines the assysc to inclose, and
returue ther verdict to-morrow at eight a*clock.
19lh February 1680. I'he said day the
Efter oppiningund reading of the whilk ver-
dict ofassyse, tiie lords justice generall, jus-
tice clerk, and commissioners of justiciarie,
be the mouth of Adam Anid, Dempster cf
court, decerned, and adjudged the saids BIr.
William and Alexander Gordons, elder and
younger, of Earlestopn, Mr. William Femi-
son, of Ketloch, James Gordon, of Craich^,
younger, Patrick Dunbar, younger, of Macn-
rimoir, and William Gordon, of Cuhrenao, to
be cxccut to the death, demained as traitors,
and to underlye the paines of treason and
utter punishment appoyuted by the lawes of
thisrealme, when they shall beapprehendit, at
such tymes and places and in such manner as
the lonls justice general, justice clerk, and
commissioners of justiciary, shall appoynt, and
ther names memorie and honours to be extinct,
and ther names to be riven furth and delate out
of the bookes of armes, suae that ther posterkie
may never have place nor be able hereiler to
bruik or ioyse any honours offices nor dignities
within tnis realme in any tyme coming, and
to hare forfault omitted and tint all and sundrie
ther lands, heretages, tenements, annual rents,
offices, titles, dignities, tacks, steadings, roumea*
|K»sscssions, goods and gear, whatsomever per-
taining to them, to our soveraigne lord, to re-
mainn |>er|>etuallie with his by nes in propertie :
Which was pronounc'bd for doom, whenipon
his majesties advocate asked and took instru-
ments.
05] Pr0U€dmg9 4|g«ffitl JoAii L^ri Bm^gengf. A. D. H(8^
Wi
327. Proceedings against John Lord Bargeny,* for Treason;
3S Charlies II. a. d. 1680. [Now first printed from the
Records of Justiciary in Scotland.]
CuAU j€tnciARi£, S. D. N. Regici, tenta In
Praetorio Burgi de £diiiburgb, decimo
iezto die Metisis, Martii, 1680, per tio •
norabiles Virot DonaiDos Georgium
K*Kenzie dc Tarbet Justiciarum Gene-
ralem, Thomam Wallace de Craigie, Jus-
ttciariee Clericum, Jacobum Foulis de Co-
lintouD, Robertum Nairn dcCStratburd, Da-
videm Balfour de Forret, Davidem Fal-
conar de Newtoun, et Rogcrum Hogfe de
Harcaras, CommissioDarios Justiciaris
didti 8. D. N. Regis.
Curia legitime affirmata,
Jntran^
John Lord Barganiej
TnDYTED and accused, Tbat wber not
withstanding be tbe common lawe, and lawe of
nations, and constant practique of this kingdome
and paiiicularlie be the twentie-fyfl act of the
•ext parliament of king James tlie 2d, It is
sUtot and ordained, that if any man committ
or doe treason againest the king's person, or
bis raiyestie, or receipts any that has committed
treason, or that supplies them in help, redd or
eouncill, they shall be guilty of treason ; and
■ickiyke, be the hundreth tourtie and fourth
act of the twelth parliament vf king James
tbe sext. It is statiit that wherever any de-
claired traitor or rebells repairs in any part of
this realme, non of his majesties leitfges shall
presume to recept, supplie or iutercomon with
* " All the account I can gi?e of the trouble
of Jo|in lord Bargeny, in the shire of Air, is
from the registers. He was susnected to
fiiTour the cause of liberty, and to be of the
other side from the duke of Lawderdalc ; and
last year after Bothwel, some surmises were
raised of his favouring the people concenied
in that rising, whereupcn he was made pri-
soner in Blackness. In the council registers,
December 4, last year, just afler the duke of
York's coming down, I iind a report from a
committee who had been appointed to examine
him in Blackness, that they had taken his de-
claration, which is read, but not recorded.
That day the govci*nor of UlacknesK is allow-
ed to permit persons to speak with him in
luB own hearing, and to gire him pen, ink and
paper, providing he see whatever lie writes.
At the same tioie the advocate produceth a
letter from the kinsf ordering him to pro-
ceed against the loru Bargeny, as having in-
cited persons to rise in the late rebellion. No
more 18 about him in the registers till January
14, this year, when their act about him runs,
** Aoeat the petition of John lord Bargeny,
VOL. XI.
them, or to give them any releiff or comfort^
, and that immediately upon knowled|^e of ther
] repairing in the bounds all bis majesties obedi«
> entsilhjects doe ther exact diligence in searoh*
I ing[ and apprehending the saids rebc4ls and
! traitors, ana that with all speed they certifie
I hismajestie or some of his secret council, or
some persons of authoritie or credit, within
' the sliyre, that such rcbclls are within tho
' samen, under the paine that the saids traitors
' and rebells ought to sustaine if they wer ap«>
prehendit and convict be justice, and be tna
fourth act of the sexteint parliament of king*
James the sext, whosoever invades, or persewea
any of the lords of session, secreit eouncill; or
an^ of hifs majestie's officers for doeing of hia
raajeslie's service, shall be punished to the
death ; lykeas be the lawes abd practque of
this kingdome the designing, contryring, o^
hounding out others to massacar and assas*
sinat his majestie^s commissioner and repre*
sentative, is in itself the cryme of lese majestie^
his majestie's commissioner beings in the con*
struction of lawe, his hyncs representative, and
in place and vice of his royal I persob : and be
the second act of the second session of hia
majesties lii*st parliament. It is declaired, that
if any person or persons shall, by wrcitincf,
printing, or be any malitious and advised
speaking, expresse, or dcclaire any words to
stirre up tbe people to the hatred of his ma-
jestie's royall prerogative and supremacie, in
causes ecclesiastick, or of the government of
" that he hath been now two months close
<' prisoner in Blackness, occasioned by the
'* suggestions and malicious informations of
<* his enemies, and he being conscious of hia
*< innocence of any disloyalty that can be laid
** to his charge, and that in his heart he did
" never harbour, far less did he ever practise
" any evil against his majesty or government,
'' craving that he may either be liberate, or
** presently put to a trial ; and tliat in the
<* mean time, or since his imprisonment, there
^* may be no process, or decreets of sessioa
^* moved in, or given out to his prejudice, hia
<* adversaries at this time being ready to take
*' advantage. The eouncill ordain the said
** lord to be brought in to the castle of Hdin-
** burgh, whenever the advocate hath pre-
** pared his indictment.
« This matter is still put off till the end
of March, wht^n I find him before the jus*
ticiary . The managers had a mind to have had
his estate, but their prohution failed them, and
the crimes in his libell must be reckoned of
the advocate's framing.'' 2 Wodrow/p. 151*
F
67]
32 CHARLES IT. Proeeedinga against John Lord Bargeny, [68
the church, by archbishops and bishops, as it
is now settled by la we, or to justice any of the
deeds, actings, practices, or other things de-
claired a^j^inest by the said act, every such
person or persons so offending and being le-
gallie convict thereof, are declaired incapable
to cxerce any pia6eor imploymcnt, civill, ec-
elesiastick, or militarie, within thi^ church, or
kiugdonic, and are lyabic to sach iarder paines
as are dewe by the la we in such cases. Ne-
Tcrthelesse it is of veritie, that the said John
lord Bargany having shacken off all fear of
God, respect and regaird to his majesties lawes
gnd person, his native prince, and to whom he
was in ane more eminent way obleidgcd, his
majestic having raised him and iiis predicessors
to be peers of tuis his majestie's ancient rcalmc
and heredittary counccllors tberin, and having
licstowcd upon hiin and his family extra-
ordinary marks of his bounty as well as
favour, yet the said John lord Bargany for-
gettini^ all these obligations, and the horrid and
fircadtull effects of that late rebellion which
did ovoiihrowe the monarchie, and enslave
and depau|M?ratc the subjects of this kingdome,
and hoping as it sc^emcsto raise himself by such
new coni'usions and rebellions tu be a chieff
ringleader in and disposerof the government
of the kingdome, from a share in which go-
Tcmment^ suitable to his fancied merit he
thought himself excludit by the present choise
of his majestie^s odicers and servants, he di<l
theriur most treasouablie in ane or other of the
monclhs of the years 1074 or 1675, with
gri-at onthsund execrations, curse some of the
chic/riiiibiliticof the king<lome, because they
would not make tlienVselves the head of tho
phunaticks, and swore that they w onld never
signifie uiiy thing because they hade lost that
oportnnitio*; and because hisi grace the duke
of I .uiulcrduie liadi.', by his extraordinary pru-
dence,* care und loyaltie, delate the designcs
tliat he and the said phanaticks wer inanngeing
for disturbing the government of the church
and state, he did in aiif or other of the miMieths
of the \cm-s 1077 or 1678, puUictlic regrate
that the English or the phanaticks did not kill
and assassinat the said duke of Lauderdale
and did hound out* and intvse others to assam-
nat and fall upon him in his own bouse, and
particularlie in the raonethsof
1675 or 1676, he did indeavour to perawade
George Martin, nottar, in Dally, who then
lived m this land, that the phanaticks would
never gett ther bussenes done whill the duktt
of Lauderdale was alive, and that ane ban*
dreth men would doe more to assault him in
his own house of Lethingtoun then all tliej
could doe beside, and because he would not
complye vn\\\ the said lord Bars[any'8 inhuman
and cniell designe, he did still thcrefter dis-
countenance him, and declaired to his friends
his bye dissatisfaction with him upon that ac*
count ; lykeas one Mr. John Welsh, a fac«
tious trumpet of sedition and treason, and for-
fault for the rebellion, in a.d. 1666, having
maile a constant trade of convocating his ma-
jest ie's snl^jects in treasonable |eild meitiDgSp
the said lord Bargany did keep correspondencai
with him, and having direct a letter to him
whilst he and his complices wer contryviny
the last rebellion, he did send the said letter U>
Sauchhill by his own servant in May or June
last, which Ving read at the said conventicle
as having come from him, did incourage and
esti'emlie invit his majestie's subjects to ryae
in th|t rebellion, to which rebellion he did bjr
all means invite and drawe in as many of liia
freinds and followers as was possible, and par-
ticularllie he keep*t ane correspondence with
— *— Cuninghame, of Bedlaod ; and, amongal
other letters, he did wreitt to him one aboot
the beginning of June last, which was imme^
diatlie befor the rebellion, whereby he eam-
estlie desyrcd the said Cuninghame, of
Bedland, to rep:iir in all beast to the WesUand
army, and to move and perswade all gentle-
men and others about him to joyn witn him,
wher they should see the said lonl Bargany
himself snortlie, to which rebellion he might
invite the [Hjople with gi-eater ctJiifnlence, be-
cause it was Lilt they allon that sh!)uld counte-
nance that buhseiiifs, but persons of fare greater
Ste the Case of tho duke of Lauderdale, I qualitie, win) would assuredlie joyn with and
vol Ci, p. 1025, of this Collection, and the ad- I own them in that affaire ; and albeit many of
dilit>nal < luirtrts a;;ainst Laurlc;rd:ik- in ti:*- < the said John lord Borgauy'sown tennents
»oint'rs Tniti :. 8te also in (h«^ Collection ci" j hmie bein in the said rebellion, vet he did not
State TuiL'ls fioni the year 1600 to 1603, pub- give notice of them to his raJijostie*s privie
iislied in 169'2, pp. Q3, 0C\ * JSonie pa/ticiilur
matters of fact relating to the a(!niini:.!iaiiou
of affairs in Sf.oiland undti* the uukcofLnu-
derdalt',* and the impeachment ol' the duke
and duchess of Lauderdale, witji I'ueir brother.
couuoili, shirriffs or other officers, hut did in-
tertaine those that wer nottor rebells in liia
liouse and 8i?nico, and particularlie ■ —
Mitchell, nephew or cousin to 3Ir. Jamea
, , BiUchell, who hade bein execut for many exe-
Jiiy lord Halton, presented to !iis -Majesty I y ! crable treasons againcst his ni^jestie, an<l who
the city of Kdinburgh. In private, CharU's I himself was in the late rebellion in a.d. 1666,
acknowledged that mi;ny detestable things had j and Andrew M*Clarkin, whom he keopt in hia
been done by Lauderdale against the Scots, | o>vn house and service elUr he hade returned
but that nothing against his service had ap- from that rebellion to which he hade houndil
penrcd ; a sentiment not less dishonourable than
nalnral to a sovereign, who, when he s; i»arates ;
hiv ow n intoi-€St from the people, Ibrgets that '
he creates an interest in opposition to the throne. ,
Sec 4 Laing, lo^^ edit. lUOl. j
him out ; and also in the moneths of
or ane or other of the dayes of the
samen, the said John lord Bargany did pub-
■k
* See a Note to vol. 10, p. 1048.
Ik'tlit' TTi^iTilnin*? thf? prtnnT>l<?« of Nepthali , JaS
lu. f all miii'iler fttiii
irCiiaon^ <iri ilAwl would never
he well till ii icie^ or ttie present
gtifprnttierit uj mc tunrrii wer destroyed m
uotlti (or ilie riation ; and in the nionctli<} of
Or'"' ='" '"* No\*eniber last, lit did oppinlit* d«-
cl L si the ^crcd order uud function
.,.. ^ ., ,.jie, Rwearinjjf tlial wc would ne^er
m peace till the currtt* wer routed out,
pid that they wer oil but knaves and it)|;^K\f :
lierthmHe the said John lord Bargany has
pmtniU4.'d» and i^ i^udiy of the tr^asonaltle
iirymes and otlicra aUcne TTiontionrd, and is
actor nirt and pnrt tlieruf, which being found
lie aiie aasjNt.^ he ou|rlit to be punished with
fi^rfanlture of lylf, lund and i^nods^ and other
line* above mentioned, to the terror and ex-
Dpte of others to com mitt the like hereiler.
Perjfa>cr.^8ir George M*Kcu/Jc, of Rosc-
haugb| our itoverai^i lord'^i Advucate.
Procuraion in Defence. — Sir George Lock-
hart, sir John Cutiini^huine, Mr. Wni. Hamil-
ton, 1^1 r, John Elies, 31 r. Robert Stewart, Mr
Roderick Mackenzie.
Sir George Lockhatt^ as pr«>courator for the
defender, craved he tni^ht be putt to the know-
ledge of ane assyse^ or that the dyet mig^ht be
deM-rted and he set at lihcrtiet
His Mnf€%tle*i Advociile alleailges, That he
cannot l>e ohleidi^-eU, nor can he in duly to his
inajcstie's iiitcrciit, putt the pannall 1o the
knowledge of anc lussy^c, bcc4iuic he did not
jfett a coppie of tU^^ first and «?cond humtnondes
of excnlpulioo, witlmut which, theli^lufthe
vitnci^vs sii^uiiU'd nothin^^ bt;cau^e it is the
rcoMms in tlic cxculputiun that inf»1i-uct» hini
toMhut end the witne?«e* are adducetl, ana
ron<^piervi1y by which he b only hiistructcd
howe to cast these wilnc^cs with relation to
thii*«e poyiitH for which (Iicv art; to he adduced ;
and be tuc elcvinlh act of ute late aclf of pur*
lifinirnt, ic^^^^uliainj;;' the justice court, it i.s most
clear, thai Mh lyLwlUand e\cul]jation» should
he cxccut in ihe nuuie way and inanutr, and
tue jure para ttimnu
8ir Gcurgc LackAari answers, That tlie oh-
ion proptined be the kin, ^ * ' ;a is not
in pe ten I hoc ioca m iin/i ..^ but is
[|y competent apiincJit iht |Fi-.r m« -n, :ind the
reftMm is most evident, iM-fausc thooi^'ii ihe ob-
jirii .n ti**r founilit in lavvc, us the paunall
hi ueuics ii in not, \i^ it tends only
to ^ lite pannalt of the lH;ne1ill of ttte
exeuipatjon, and whcrby hiii mujestie^s aUvoeut
han un pn pidtce nor dii»uilvanti}^-e ; hot on the
* ' I he wer Jibic to uddocc any relevant
pi I the lybcil, it uootd reinuine un-
|)ri;^udg4id by tlie excul]ia!ionf it bein^ the
* T' -r piddrcatjAna on the part of the
i» The title of that heieitnit incu-
I Bo io llic Urij^ual,
^Sj
A.D, 16S0, [70
mxtm case ia lawe as if the exctilpation hade
not be in raised nor ^xet*nt.
2d. Though tlie 4tt«te of the prcteea conM
adrailt of the objection, as certftinUe it cannot^ "
yet (t has no ground fitmi the act of parliament^
J and it is impossible to infcrre any such thitjfl
from the act of partian^ent, that ane pammll
havcing anc just and relevant defence in \hwe
for defending- his lyflT, honour and reputrnionp^
and ofTerintr to piH»Te the ^an»c by witnessc%|
ni^atne^tt whom thcr \h no law full objection|J
that such a defence cane be repelled, and con-*
set^uonllie ane innocent man condemned^ and
the true import and sense of tlie net of parlia*
mentis only thiii, that w her a panndl thinki'
titt to raise a Jiummond!4 of exculpation, anil ^
to have the benefitt of dilltgenccs, in ease hif'
witnesses doe not cotnpcir \u that case, he
most obsene the foriualit) of the act of parlia- j
meut^ but w hi^r the panu.dl will uud«^ri(f>e the
ha^iirtl of a try all, and subject hifl inuocencr
to ane assv?»e, w hilhcr the w ilnessc^ he cits foL
provcing" fiis defence comj>cir or not, or woulj
olfer to (irove hi*i defrncc, either be his jtidcfei
or he members of the impie<;t, or any other
persons present, it ix tlicr thi* irrefrattuSle opt-,
nion of all biwyers^, and practise of utl ciinimalt
tribunalU in the world, tliat such a defence and
probation cannot be repelled, and thereby ani
itmocent man condcimird, and \^ hie h ii6 suit
able and consonant to the practise of the bird
of justiciarie, ther bdiiig- nothiUi^' more ordi-
narit' even nince the act of pailiamcnt, then to
sustinnc relevant defenctiti pro[ioued prr modm
except lonh, and noi pcj- modttm ucttvnts^ jir th
nature of evculpations are ; and the acl of pap
tiament as to the poynl of allowing i^unimondi
of exculpation to pail null ^ being mtroduceil id
ther favours^ cannot b*." detorted lo ther preja«
dice, es(>cciaVlic lo prejudi»;ii them of the lK'n<2-i^
lilt of the lawe of nature, and nations delences
l>ein|> (/c;w;c na^ur^, and most pn)perlie, and
of ther o VI n nature proponablc be way of ex-
ception, and as the pannall hunddieconccaveii
the pounds ftbo\o mentioned to be foundit
upon the clear principles of lawc, so lo con-
vince tfie lord'* of justiciarie hovve mnieeesiiaryJ
this debate is, it is o^ercd to l»c ni'ovcn by J
William Ghvcr, the pursevanlS outh. that he
delyvcrcd a list of Ihe wilnessen to my lord
adiocat, and whicli docs fuUie saiisfic the act
of parliament, which does not reqnyre the
«unvmonds of c.vculpuiton to Ih* exccnt, but
only thul a list of the witnessi's be cfivcn ; and
this the paunalt pmpons tu thiselfoel, that if
he think tilt, he m:iy have the full l»cncfitt antl
privilepfc «d' his exculpftlem in case any of the
materhkll wiln»*s*e« for pro^einaf Ihend' hi- ah-
sent ; lykea.s the exculpation ujw produced the
last dnVf and pubhctlte read, and bear'* no
warrauil tor gmnij a coppie of the rea^utp
thcrof to my lord a<tvocat.
Ills Mil Hi tics JJrot<^if replyes. That asto
the t ' ' * ' n J
the n
IS sxiost compytcnt hut liKtf^ «mcc he wats tlicrq-
n^
32 CHARLES tl. Procee£ngs against Jehn, Lard Bargeny. [71
by in hon&
dyet being
•0, but he ^ ^
ignorance howe to manaire the pruces, for his | cutt off a pannall from a just det'euce and wit-
majestic and tlie kingdomes interest, in suae I nesses, because he wanted aiie exculpation,
fare, as he could not knowc which way to find | and as the justices have verie otlen, and veiie
out the strentfth of liis own probation, not justlic allowed ane new dyet, to ane pannallj^
knowein^ howe his probation might be eleidit
by the exculpation, and tliough he gott a list
of the witnesses, yet he 0(ipoQ8 expresslie the
act of parliament, which paralclls the sum-
monds and the exculpation, and therfor as upon
the whole matter, it would have bein a verie |
rd preliminarie defence to the pannall, why
c*ould not goe to the knowledge of ane in-
queist; that he gott not ane coppie of the
lybell, and that he hade gott it, but ther is no
execution againest hiui, or that he gott not :^ie
list of the Witnesses, subscribed by the advocat,
as it wouUl be tor the advocat that he gott
not a list subscrybcil be the pannall, because
upon either sydc this is the only check to
koowe what true %vitnesscs wor trulie given
in list, so ought this to be a sufficient prelimi-
narie defence for his majestic, who, without
this, could not knowe what was the import or
strength of his own probation as said is.
As to the second, his iMiyosties Advocat ac-
knowleilges, that Ijcfore th<? late reafulation of
thejustice court a pannall might have at the lord (Jochran, and to sir John Cochran,* who
whcr his exculpation was not deulie raised, if
his was proposed before : the proces was al-
tered upon as here, so it wer as great injostioe
and cruelty to the common and publict interest, *
not to sustaine Uiis as a preliminarie defence,
in favours of his majestic, and would in the
event, upon the paritie of reason, prove greet
cruehie to the people, since they behoov^ to ,
gctt the same measure; wheras in equities
fair and eouall tryall, and what may tend
therto, is ttie common interest of both and of
each apairt.
His Mitj€itie'$ Advocat adds, that the ]mg
having doue exact dillig^ence, and returns of
the dilligence having bein showen to the jus-
tices againest witnesses which are knowen to
be necessary ; the dyet ought to be continued,
especittllie seeing Craige, a witness, coining in
upon a warrand fmm the justices, he was ap«.
urehendit in his way by Alexander Crawfura,
balyic dcput,of Cuniughamc, deput to the lord
IV]ont<romet'ic, who is bruthcr-in-Iaw to the
bare caused cxainin witnesses, even as, and
because witnesses might have \w'm adduced for
the kin^ at that tyme, without giving them in
list to tiie pannall, and it wer just that the pro-
cedor sh«'Uld have bein equal! upon lifith sides,
for as it is the interest of the pannall that his
innocence should have hem dclendit, so it is the ^^ „,^j.^ ^-^i^, ^^J^ ,,^ ^^ ^ necessary
much greater interest ot the common wealth ^„j jj, knowen to his majestie's privie
«e cruinna n.aneant inipunitH ;» and yet. not- ^j,^ ^^.^^j ^^^^ deposition.
withstandini:: ot this great and important rea<
son, it is uii(U':iyul)le that nowe the king could
not prove the rifarest and most im|>or;ant
crynic ii. tiie Horld, except the advocat hade
given in to the pannall a hst of the witnesses
to 1)0 adduced, and therfor since the late act
iias taken aua\ this just priviledge from the
kin<^ : competent to him formerlie by the lawe
of all nations, and by as strong reasons as are
now alleailjj|;ed for tin? pannall, the saiil act and
article did jiisilie allowc the king the same la-
vour that it did to the pnnnall in eqiialUng
both ' aci s, and the reawin inductive of this
fnoiir cravjvd by the people did militut as
stron^lii' tor the king as lor them, viz. that it
was huid that \«itiiesse.ssli(.'Uld he addiired who
might ha. e l»rin parlies, or ly. hlu to just ex-
ccjUionN, it l.< .riir iiiulrnyalde, that the king
aiid ihe j.niilct interest may l»o as mucli pre-
judi,^d \t\ J(-.tit)n£^ c.\i'e|rtif>n*d)le \fitnes!»es for
eleMhntj il the ti\me, as the pannall Uiay be,
hy SnvAx l»'.iMdlie evposed to the mearsofane
iiiireitaiiie a^id mikntrvven probation, and what-
eiei- UMkrhi l»i: said in this case for securing the
panniH's Ivtf, in tie not ntlinitting a u itness
vher Iher is the lea^t hazard, yet there cane
be no sliaddi?ue why this sho dd not be receiv-
ed, when tlic itn[>ort is oiil^ that by a delay
are now u|K)n pannall with the lord Bargany,
the said Alexander Crawford being advertised,
that Craig was coming in upon a securitie
given be his majestie's Advocat, which be ooo-
temned, and said he would take that on his
ha^eard, and his majestie's Advocat is content
witness,
counciU,
depos
Sir George Lockhart repeitts, and oppons
the former debate and the act of parliament,
and alleadges, that it wer a preparative of most
dangerous c()Usequenc*e to lay any such fun-
dcition that )>annalis accused m criminall
processes should be prejudged of ther defences,
whatever way proponed, either bti way of sum*
uiouds of exculpation or be way oftxception,
it being a certaine principle in lawe, that as to
defences and probation nunijuam concluditmr
contra reum^ aiid that ther defences may be .
proponed at any tyme befor encloseing of the
assyse, and ther is not the least collor from the
act of parliament to tyethe pannalls, to propone
all ther detieuces by way of exculpaiion. As
to the second, the pannall repeiits and oppons
the nature of cnunnall pnK'csses, wherin tlie
flyets are peremptor, s|ieciallie u|>on the part
of the accuser, and all that ever was allowed
was in case the witnesses did not appeirat the
first d\ ctto grant a farder dilligence, and which
aceonlinglic has l>ein indulsred, and the
lords of justiciary, that some of the witnesses
wer formerlie ahicnt, ilid continue the dyet
* ISec his Case in this Collection, vol. 1%
p. 989.
r
till t1i)« ^ty, uitl tberfor lii>i mAje^ttu*i ail-
%ovatl oiijyftit to have conw lullie instructed noU
I Di> prt'teuce of tlie ahsente oi any oi' the wit-
I BMR9 oa^l in justice to b^ any j^fround Tar
^^aew pfOfOf Atioiis, >Mid to keef> tt)e[*&uualU wlin
^^b wtw reiuUe «t tbe bare, to subject \m inoo-
^^Hhici^' to the iitrit:tc«(it tiiquirie mid tryall uucter
' 1^ iod ittiputatinti i»f fet* hyt* and at-
li . nKf*i, and to cootintti! Liiii in wurd
dtcr tyvf^ tiionethii imjtrlsuiiment, and ettcr he
has bein at rxtniordinury expense und trouble
tocite tbrescore tfn \%\ Ik his e\cu1pa-
tion^ nii>sMil ibem i'riM y» and iriiom
it b iniftosMble tor ttii* |i^ijuiii to bnn^ still
lien.' to aitcbd iiDccrtaiue dyeta at'cnnunall pro-
€«*»**»» and riM ' -^ .. f - - nisidertd the i:uce ol'
puiuiJiilt^ i^H t ouviciion, and a& it
were iuipo&b. , , . ,. ,.„,,. .^Jl t4) pretend or have
allowed any tknlar dili^eure tor producring*
hia witnesa in une exculpation, ho iber in tare
lf«arf reaaOD lo altuv^'e pruro^ations ol'ilyets in
lafonr» *>f accusers, aud as to Ibe pretoncc tliut
one of the maieriall witnesi^ey f i;t» bein deti^iined
by the bttlyie d<*pu(, of Cuniitgbame, it is ab-
soiiitlie dcnyed, and it cannot iu tbc least be
|ire^arucdf that any person cloathed with
AUthoritic tlnn^t have advci»lured or prexMined
10 slope or liJuder any witnei^sc^s ubo \ier cited
for his tnajcMie^ii intereisl and ser^ice^ ^rt
tliougb any HUcb I h in y^ could be (jUiilifitHl^ it is
not in tbc Ipust reJeviiitt. itntes»e it cuuld be
made appeir that tbe p»inhull hnde accession
tiicrto^ wliich tsubfiulutehe refused ; und on the
contniir, tbe pannuH an<l \m friends bave u^ed
ail indenvour^ to brin^ tliiii matter to a trvull ;
it beidi; txinH^ribuM) tiard ibnt be shouhl
continue in tMipri>u»niiu-nt, and under tbe
fitmini: Hod intpmuLton of mi bye crirurs upon
pretence *d the ubiruce of \f itncn^e^, and an-
pc<litiMtibi *d tho» kiud may Ije nuU obtnidit,
aud tberet'or the ptt»itinM rrave** ihe beniHt oj'
1 1 V iohdde pi^eedor ul
'cat having- ^ottal-
•iires biHtf imd the
I milt olp an4l if the
sucli nialver^arion
udvoeat by tbe se*
-,. .,,v. » prevf'ttt tbe dunffer
i'S^ iind bti!i iiiiijextteH interest
iin- dyet wcr de!<ei'led, sinee
utiieieiit ground lo in-
it for any of tbecryuies
lilirlJedf tt tv but uinitlutii tib inttuniia, and
«afinot preju4ij,::Ct and tbe punnuU i:^ a pei'son ot'
it rhiiriicler and iptuiitie, and of that eouf^ide-
jion, a»i t<i foriouii, that tber is no fear he will
Ittthdru^ve himtielf.
The lonJn m reipect that his majeiitie^s ad-
V' ' woiiie of hi!< mulerial vrilncsfces,
li* hu^ tbai he bu*( used all pos»iUe
dilir^i 11 u»r adducein^ i' I alw iit
reaptrct that the pannaU bail- A to jfive
'f?« SFJ" f^w^Wr
' of them on
and ttie v\ 1
L of three bij
liivie;&iiii ju
thn» courts d
n '
b
as
Ot
C.!
il
ad'.
hv. ,
iiW thcst^ond i>i
Mne the aasyierb
■ ^t i*,,,..i.i.kj, and a
i'§ b>r pioveuig" of
eontinoo lli«» t\yrt
iune nixt, and or*
I utdiat lyinei i^ch
^'^ ^f^ine of ane thcroaand merlca,
yU of tbem, under tb e paioa
I Uifit ftluje^iiica Advoeat takes itiiiirunieiil
I upon the lord Straibuavcr, tlie h>rd Coijif.iiijl
1 ail- John Cochran, Baly ie, of L^ i
I Ketmeily, of Ciilzean, and'lla%id D 1
I brother to BI^Kany, tber entering^ the |»4nuaU
%vith the lord Bargany*
l^thJune, 1680.
Jut run J
John lord Bargany,
Indyteil and accused for the eryme of trea*
fion, sedition aud others mentioned in hit
diltay, which i^ reconlit in the lunfks of ad*
jodtnal upon tbe siCxteint of March tai*t ; as
also indyted and at^cu&cd for that, upon ane of
other of the dnyes of May, June, July, Aa-
guul or September, he hearirii^ that his grac
the late archbJ5»hop of St. Andrew 's wm mur*
dered, be said that it was w ell or happie, for he
was a ^oat enemy to tbe caute of God, and
bis people or thekirkof Chrisf, orsonie such
words ; lykas he, or f»omc by btscouHitand, or
whom he r^itihabitcM}, did orfer armes it^ Jame
Kennedy to goe to the late rebellion, at lea
he wrcs offered armes in tbe said lord Bar- '
gauy'i* h«>use for that effect,
Penewers — 8tr Georg-e M'Kenzie, of I
lianght our S'lveraigne lord's Advocat*
Frvcurtttori^ ut ante,
Mr. Willwm Hwftilfoun^ Advocat as pro*
eouiutor h»r the lord Utiivany, prmlnced in
presence of the sarrh lords, ane at^t of his ma-
jt^iie^j* priTK' council* vibeiof the tenor fol*
|otv#*: ** i.dinburgli, ibe tbirtl of j!H»e, lOBO;^
♦ ** rhe kniiii « Letter, upon which tbii
pnicfxjs fs stop|>ed, bears, * That be hud re*
* ceivetl a puuoii from ttie lonl Hiir^.^env, re*
* presenting Uis \ irher*a loyalty and suiTerin^i^!
* aBscMtiu^ his innoc<-orr of th^ crimes he is in*
^ «l<cted for, and attebini!^ Uoil thereupon, and<
' his niaJ4'sty itemn unwiltiui^, he, or any ttub*
* jert should r*M?eive prejudice by loiij^ iuipri*
* sonmeut, until there u}»pear etident proofs ol
* their |;;iwh» retpnres him to be liberate, uncfcr'
* fiurhcietil cuutmn to appvur in onler to trial,
^ j1 hereafler sufficient piuof&t of bis uuilt be
* lounif* And that this letter be conununi*
*" C^ucd lo tbe juitice-couit aud advocate.**
*2 Wodrow, 153.
** March 16, 1680. The lord Burjfnny wai.
both tlje 1st *Uy of ]Vlarcli, and I his i\»y on
the pannall, and waa, after niueh delnitc, con-
tinued and sent hack to tbe castle, on pre
ihal the advocate wanted Bottie of hh malenal
witiicfcws against him ; as alvi he gave li
aonic additional articles, anent bisi furniKhinj
men witli arntes to tbe later rebellion,
** June 5d. Ai pmy onioeill Uml Bar]E;fa!
W}|« liberated, fintiin^ cautmn to appear
calkd uud«r pam of 50|00U mcrki/*
FofiotttiiMI*
wbemi
3
75]
33 CHARLES II. Proceedings against Alex. Blair and othtrs, [70
the lordi of his maji«tie*s privie counciil, in
obedience to his majcstie's commands, signi-
fied to them in a letter, under his royall band,
of the eleventh of May last, gave ordor and
warrand to tlie governor of the castle of Edin-
privie counciil that he shall compeir befor the
lords of counciil whenever they shall call for
him in ordor to. his try all, as to those cr}'mes
for which he stands mdyted befor the lords
commissioners of Justiciary, under tlie pe-
nalty of fyftie thousand inerks Seotts money Uk
caice of faly ie. Extract by int'.
Sic subscribitur, *» WIluam Paterson."
The lords justice generall, justice clerk and
commissioners of justiciarie, in resjiect the
kinff*s Advocat (because of his majestie's letter
to the counciil and the act of counciil intimat-
ing the same to ther lordships) does not insist
against the lord Bargany, therfor deserts the
dyet simpliciter, wherupon the said lord Bar-
gany's procurators above named asked and
took instruments.
328. Proceedings upon a Process of Error,* raised against Alex-
ander Blaiii and others, for the acquittal of James Dick
and others, indicted for Treason and Rebellion : 33 Charles
11. A. D. 168 h [Now first printed from the Records of Jus-
ticiary in Edinburgh.]
and inviolable practiq of this kingdome, and
spcciallie be the 61th act 8 parliament kin^
James 3rd, It is statut and ordained, that if
any of our subjects choiscn upon the assyse
of any criminall persons doth acquyt them bs
temcraritie, or wiltullie be favours or parti-
alitic, they shall be put to the trvall of ane
assyse of twenty five persons, and being con*
vict thereof, shall be punished efter the formd
of the auld lawes contained in the book of
Uogiam Majestatcm, and be the Uth chap.
1 Book Re^. Majcst. the pain of them that
comniitts wilfull error upon ane assyse is de-
claired to be tinscll, and forfaulture of all ther
cattell and other moveables, to be inbrought to
tbe king's use, imprisonment be the space of
ane year and day at the least, and that in all
tyme coming they shall tyne the benefitt of
the law and of the land, and shall incurre the
paine of infaniie, shall never be heard as wit-
ness in probation or in acquytance (or purga-
tion) nor to make ane oath befor ane judge nor
in any other kind of matter : Nevertbelesse it
is of veritie, that the saids Alexander Dlair^
■ Lewes Johnstoun, and the other persons above*
named, beinijf in ane court of justiciary, liolden
within the 'j'olhtiith of Edinburgh, u|>on the
Itith day of ]\lurch hsi by past, by the lorde
justice clerk and commissioners ot justiciary.
CoRiA JusTicMRLi, S. D. N. Ucgis tenta in
Pretorio Burgi de Edinburgh, decimo oc-
tavo die mensis Julij, 1681, per honora-
biles viros llitchardum Maitland de Dud-
don, Justiciarifc Clericum, Robertum Do-
mmum de Nairn, Dominos Jacobum Fou-
lis de Colingtoun, Da\idem Balfour de
Forret, rt Davidem Falconar de Newtoun,
f 'Ommlssionarios Justiciaritc dictij S. D. N .
llegis.
Curia legitime affirmata.
Intran,
Alfxandfr B!air^ merchand,
J^rucs Johnstoun y merchant.
Thomas Nohfe, merchant.
Captain John liinnhic.
Alex. Hot hu elf, of Glencorss.
Jo met Baillic, merchant.
Mr. Andrew Temple^ of Ravilrige.
Jowts liaird, of Suucktounhall.
Hnbat Sandicfand^t merchand.
Hobcrt Elliot Wiifht.
A/cr. Ilenrj/sout of Nowchavcn.
/// mts G ray, < >l* W arics! oun .
John Dunuitj!, of Han'iestoun.
InDYTED and accused, that whcr, notwith-
standing be the lawes and acts of parliament
■ ■ ■■ ■ •
* "C)fold, before inclosing the jury, the
Lord Ailvwatc or prosecutor used to protest
for an Assi/c of Error at^aiust the Inquesf, if
they assoil/icd. [Sec an iustance of such a
Protest iu this Collection, vol. 10, p. 790.
Sec, also, vol. 10, p. 855.] This Great Assize,
as it was called, consisted of twenty five noble
persons, though alWrwards, in practice, landed
men were sastained : [Act of Sederunt, 7th
June, 1591] who were to inquire, if the jurors
were Gfiiilty of irilful error, in their verdict ;
and the DiuuihaieQt was escheat of moveabla;.
infamy, and one year's imprisonment. [Iteg.
Maj. I. 1, c. 14, ratified purl. 1475, c. 63.1
But the pannel, who was ac({uitted, remained
so, and couUl not be brought upon a new trial.
Assizes of error were justly complained of as a
grievance at the revolution, and are now obso-
lete. By such assizes, persons who attended
trials as jurors, were greatly put in fear of beioff
punished, instead of being rewarded tor their
trouble, and the sulijects were unsecure in their
lives and liberties, by the prosecutors, in many
casesi threatning the juiy with an Asuze. St
^rcctis 0f Error,
dioi^n. recfAveil* sworne mid atliiittteil u|i«]i
%h' f Willtani Dick, in Liintrk, Janie*
I' ' jlm HunrLIe ihcr^ Tbo. Hinsful-
wotHl rljgr, llu((li fSouienatU, o( Urnil*, Jaiiitrs
Mrror Itihty " f thciiaunelby their ver*
dtct; and, i i^ lhi^)»c a;;!>ize€, sucb
fears arc fv.. ,,v... au«l people* riglitsi and
liberties are iI^Uverc<l fVmti luch danger."
Lombmrrs ** Ponu uf I'll »ce?!s More the Court
of Juaiciary in Scotbnd/^ &cv. p. Ud| edition
0^1752.
In tbe " Acts and Orders of the Meeting' of
the Eslftte* of tbe King^dom of 8t'otlaml,"
ActlStb, April 13, 1689, entitted, ** The arti-
cle of erifrancrg repre*«;cnled liy Ibe vetiit*^**
of ^ iSemlnnd, to tbu* king's most
ex . to be redre«"jL*<J to parUa-
tnent, uu^ .>m repR'jsentalioti is» '* I hit Assizes
of Error are a irrievance, noil ihni juricb be
considered b- ■ ' • ' " t Idonottind
way pavhdMii ist ifie Assise
of*Error, s<» ii... .... ....,......,.i ^jj^riirs to rest
upon desuetude corroborated hy that rej>ro-
traition.
*• The Asjiize/' ms M^Kenzie (Criminals
part 2, tit. «3, fee 5,) ** is either an ordinary,
or ^eat aasize. The g^reat assize is thdt
^thereby an ordinary is tried, if they do wrorij*",
Mid I Itiid aocne foundation for tbir terms*
• par la cuslume de LaDg^uinais, act 4, et deia
• llochaJ, art. 1, la grand Assise est dtisenpshal,
* la petit du juge prevestal/ An «irdinary
•4eii*e wfe» lo consist of tiAeen pei'snns, but
tbev ntivr cooaist of more, or fewer, if the
ntinil>er fie unequal; and thus, the penult of
Juiiij 101 4, Ronald was Irird, and CHntict for
«]iim]cmbenng' Donaldson, by an hs^'itl*^ of thir-
leen peraons. The reniion why the assize
tnust be imc«|ua1 in number, is, lest by equality
of voles, affairs be not terminated and broug-ht
to a sjieedy issue : for which cause likewise,
lib. 2. iiig. Maj. cap. 5, and by the 87th act
a p*rL king James l» it b appointed, * That
* iiHfiter» flibouid be apjjointed in an unequal
^ iinmber,* and yet I lind, that in the civil
brieve of ri;fhl, an assize should consist of
twelve sworn men.*' It is observaWe, that
II J' ' »ys^ *♦ As the defender may «lee!ine
*h* be any reason tbr it, so they are
«i/vuuj , jiur Hi it presumable, that any will be
«o improuK to eondetnn a man to ilie, ht plc*a.se
oth. ,^ M. <ii> %. h.^ I. 'n^sumptton our law \l\\u%
•o I i*^i£i*st fHifidenm un*
JUM A^ to tto A»^izt' ol\Ermr,
I n tt»id» (iee^ * A Guide to juries
iM*ttiu^ iVniii their antiquity power and duty
from f^^ rnmmon l^nw nnd St^tut^'x/ pub-
lic I ^ ^, and ibt' - -r cit4*-d*)
thu >ii ubvfh 1 lies not
in ^Jf^O ^i^^ ^ Iklseter-
di< i J at the conviei^H iruilt
litter Toiinti riMiu Willi at leusi
jurors (viz. wrtb the Iwehe of lb-
iind with at the fewest twelve ui ii>t j^r^uu
inqu«at) but ai Ua^\kiQi tays (Pl«ai of the
1681. [79
^l^Qubanie, of Scorieholme, WHlimm Park*
fowar, of Lairiml, John llutehteson^ of Har
lawe, Luke Grciusheills, of Uugfscaatle,
othei*s, nottoriouslie and manih^tlie guilty
Crown, Book 1, chapter 72, seci. 5)» ♦' it
to be certain, that po one ii liable to aoy p(
cution whatsoever, iu respect of any ^^crdii
(pren by him iu a criminoi matter, either U(h>i|i
a grand or petit jnry. For since the safety of^
the innocent, and punti>hment of the guilty^
doth so much depend upon tbe fair and upright
proceeding: of jurors, it is of the utmost eotise*
quenci'i (hat I bey should be as little as possibly
under I he icBuence of any passion whatsoever*
And therefore, U^t ihey e'lmuld be bia^^ed witll
I he f i ; V ^sed by a v isjtatious su itt
for Ji J to their conscience, (th€
danger ui ^vduu imght easily be insinuatedi
w hrre poirerful men are warmly enj^Mj^^ed ifi
a c:msc, thoroughly prepossessed of the Justice
of the side which they esrouse) the law will
not leave any possibifity for a prosecution of
this kind.
^^ It IS true indeed, the jurors were for^nerl^f
somvtiuH's cjueslioned in the Htur-rh amber, for
their pailiahly in dnding a manifest oHcndof
not guilty i kut this was always thoiighi a
very j^eat grievance ; and surely aj the law is
iiovv itctlled by Bnshers case, there is no kind
of proceeding ag^aiti&t jurors in respect of their
verdicts in criminal matters allowed of at thf#
day. As to the objection, that an attaint lie*.
against a jury lor a latse verdict *' iu a civil
*■ cause,* and that there is as much reason to
allow of it in a crimii»al one, it may be an-
swered, that in an aUaint, a man's properly it
only bn»u>jVil into question a second time, and
not [its liberty or life ; and also it may be ge-
neruUy presumed, that a jury is likely to bet
equally inliuenced with the tear of an attaint
from either of the conteinhng parties, whereas
if any ^ch examinations ot their proceedinga
were allowed iu criminal causes they might lid
often in ^reat danger of one sidci by incurring
the resentment ol a powerful prosecutor, and
provoking liim to call tlieir conduct mtoques*
tion fur their sup|K)ied partiality ; but they
could have iittle to fear from an injured crimi«
nal who \vould seldom be in ciroumstaoccs to
niike his protiecution formidable.'*
8o, too, ftlr. Barrin^^ton (t>b«. on Westntiu-
ster the Ist,) ^ays, ** It is to be observed, thai
attaint lay only in civil cases, either by th«
cujiiinoii f»w or by this statute. The rea^u
of which seems to have been grounded ii\*on
the strong presninptioh. rliai no jury wouUi
londetnn H eriuiuial <> tbe evidence*
and that it would be < a wiih princi*
pics of liberty* to pcijuit ili.* trn'vri, when il
might intend oppresjijon, to cs^H *n 'pitfiion*
verdict ofncqmUid. liifi foril' >mo»
when a crime ih prosocutcd by ■' ' re*
rwon, and mu in indict*
I uf the crown, thj»t thera
I', ir* tiK-^ritwuvii u? u grand jury t* find Ut«
biU/'
79] 33 CHARLES If. Proceedingi against Aiex. BMr and othrs, [80
the cry mea of high treason and rebellion, and wer dcfate at Dutliwel -bridi^, as the said
who wherindytea and accused for ryseing and i dittay produced be his niajestie's Advocatas per-
joyning-in amies with the blood ie and sacra- j sewer therof, against the tbrsaids|>erson8abo?e
Jegious murderers of tlie late archliishop of St. [ Daiiicd, indyted, and accused judiciallio,therbyy
Andrews, under the command of Robert Ham- i of the crymes forsaids therin contained, in
iltoun, brottier to the laird of Prestoune, and \ presence of the lords of justiciary i^ittand in
most treasonablie burning his m:ncstie*8 lawes ' judgement, in itself at length nroiiorts ; «f\er
and acts of ]>arliament, at the mafcat croce of! reading of the whilk dittiiy, the lords justice
Rutlierc^Ien, upon the 29th day of May, 1679, ! clerk and commissionera of justiciary being
procUiiming and publishing acts of ther owne j ryplie, and at lenth adwised thcrwith, ifiind the
coy ning, drowning oat bonefyre8,sett on in com- samen relevant, and remitteil the same to the
memoratiou of his majestie's hap^iie restaura- knowledge of the persons above named as ane
tion to the royall gOTernmrntof thiskin^dome, assyse thereto, etler pronuucing of the whilk
and for assaulting a |)artie of his majestic*8 intcrloquitor, the saids Alexander Blair, Lewes
forces at Loudounhill, under the command of Jolinstoun,and the other persons above named.
the laird of Claverhouse, upon the day
of June, thereller, killing and Inurdering seve-
ralls of them, and marching to the tonn of
Gkisgowc, upon the day of the same
moneth, :ind assauhing and attactqing a partie
of his majestie's forces therin, under the com-
mand of the lord Hosse and laird of Claver-
house, and for marching up and down the
countrey tlirowe the shyrcs of Lancrk, Aire,
ilcnfrewe, Dunbartonn, and others, in warlike
and military poustcr, with ther accomplices, to
tlie number of ten or twelve tliousaud, robbing
and pilagcing his majestie's gotnl subjects,
quartering uiK>n and oppressing them, printing
and publishing declarations and proclamations,
bearuig the treasonal>le grounds of ther rebel-
lion, modelling and furmeiug themselves into
troups, companys, and regiments, nameingand
appoynting commanders and officers over them,
healing parlies bo drums, sending commis-
sioners to the general! of his majestie's forces,
requyreing the subvention of the government
of the church, and continuoing in ther said
desperat and avowed rebellion till the 122nd
day oi'thc said moneth of Jime, 1679, that they
8eo, also, sir Thomas Smith's Commonwealth
of Englaiid, book 3, eliap. y, • What remedie
is, if sentence bee thought unjustly given.' By
a passage in Wodrow there is reason to think
that Charles the Second designed to publish this
trial together with some othi-rs ; but whether
such publication was ever made I know not.
Tlie nassage is as follows :
" In March this year, a letter comes down
from the king to the council, and one of the
sameiniprt to the lonis of justiciary, ordering
extraets to he made out of the registers, of the
trials of such as were condemned for rebellion.
The letter will best speak for itself.
'* C. R,
" Right trusty, Sec, Wherefts we have
thought fit to appoint extracts to be made out
of the books of adjournal of our justice- court,
of the trials of some of the most notorious reliels,
as also of the trial of John Niven, and those
persons found guilty by a great Assize of
Error, and likewise'of all papers whatsomever
relating to the trial of Archibald late carl of
Argyle, and the process of forfeiture led against
Uie end the sanoe may be digested and
being called upon, receaved, sworne and ad«
uiitted upon the assyse of the fierscns abure
named fbrtr^all ofther guiltiness oti he crymes
above specitit, his majesty's adiocat for ve-
rification and clearing to mem of the forsaids
persons ther guiltiness, adduced the witnessce
efter named, viz. againest the said William
Dick, (Javin Mont, in Lanerk, wbode|)ons that
he sawc the said William Dick in Lanerk with
therebells in armes, in or about Glasgowe,
betwixt the first and twentie second days of
June, 1679, an<l that he knew him particularliey
as also ^Irchibald llinselwood, in Lanerk, who
depons, that he sawe the said William D^
ryding aut of the totm of Lancrk, with annes,
tde tymethe rehelis wer in armes in the West,
and likeways William Heaste, in Lanerk, who
depons, that he sawe the said William Dick on
horseback with a sword al>out him ryding with
the rebells, and James Whytt, in Lanerk, who
depons he sawe the said William Dick, in
armes, in his returnefrom Both well -bridge, the
day the rebells wer defate ther, and for provmg
the saids Jume^ Park's guiltiness, adduced the
said Gavin Mont, who de|ion8 he sawe the said
methodized by Charles Hanses of Gray's Inn,
esq. and publlbhed tor the satisfaction of oar
good tiuhjeets : we have hereby thought fit, lo '
authorize and ref|uire you to transmit to oar
secretary of state, to be delivered to the said
Charles true and exact copies of all proclaroa*
tions, letters, examinaiions, confessions, trials^
indictments, declarations, and others, since tbm
decrease ot our royal "randlather kin<r James 6,
of blessed memory , thai relate to public matters,
our prerogative, the former and lale rebellions,
the rebels thiir suppressiim or c4iption, the
security of the pea(% HliKher in church or
state, or the ad ancement ot the interest of our
bishops and their ri>gular cler^^y in that our
ancient kingdom, and of all ititornntions, rela-
tions, or petitions, sent to our |>i ivy councfl
fnMU time to time, about any thing of this
nature, as convrnticli*s, insurret^titius, ins«>len-
cies, or cruelties of faiiaticks, and such other
pa{H.Tsof any public concern, uliich youjudgv
most proper to Ih* luiMishcd, for the satisffac-
tion of all good suhjtrcts ; which are to he al«
tested under the hand of our chancellor. Gireq^
at Whitehall, February 21, &c.
(< MlDDIXTOX.**
>r jQoe, 1679, and
\ SHiilIer, in fla-
|« twcuUfi sccoii.l
ibe touu ot li.iiiiii :ii
Druincluge auil tI ;e,
*n<) ".".-♦ •1..^ ,...;,.^, /. Wipi. ♦of
£4 'iie'a ailvocale ai!diKiti
Juij 1 n .iiiilioim, ^vho^^e-
Uuns^ ii p , of Scorie*
pime, n , at Uamil-
|M1 nntl lliifuikuun^mtur, betwixt Iho iirMt
P mrenh' tfffmd <1nyt ? nf June, 107 9, aut!
that he ' >e with tbian
amt \V il .'^TT, ^*-bA fit*.
pcmii, th4t hi: SilWu tiiu-
m anncii wttli the ril
JtiiiCf lo70, *uid Ihe «iiiii Jmij* v^iumiM^
fiko iif7t*ou9, llial he «a^« the lOid Jamr^
VOL. XL
Jftmct Park, in Lunerk, in ftrmes with the re-
belht betwiKt ihc (irijtnad tn«rilic sen>niltlaye3
«f Juiuv 16?y, AiiiJ that lie kuc^ve hitn (mrlJ*
Cttbrly, and thr ^iil WiHiAin Hea&tic, who
fiepotist he sawe ihc aaid James Fork with the
rcU'JU in af t ' , 1679* ^vithin
the louii of ' ;ivH \Vil|ia»ri
Wauteito , >t.:ij u«-i>onjB, Uiat he
Siiwe tK l^ark in company with
HP
the :■ 1 J'^.:. .:■ ; ;... . ,, ,..,,. _ .■_,.._.
adtlncoci the said Guvin Mont^ vihodepons he
iMwe the «atd John Biuicte, in Hrmes with the
v^betlSi htftHixl the tirsi and IntTilie wcotid
d»y*«*»* *^""^7 1fi79, and thrtt he JcDev*chim
pni • 'ie, who
dc[ ickle, m
•rnit's ^Hlii Ibc rthclii* njilno [he touii of L«i-
nerk, id Juiic^ 1679, and Ukewnys the said
iirchibiild Hins^i-lwood, who depmis tlmt be
Wkvrc the snid John Hun':klc ];;oiiig fruui (he
t<Hr- ' ' ' ^viih arnuSi the t}itie forsuidf
All ,4l Thomas 11 iuseiuood^ ad-
duce,. ,;._ ...... V, jlliam iioastie» who dqKKifi,
lie sttwethe snid 'l'lto»0*is HiuseUvodif, in armew
With thi^ r^ltt'lliif within thetouiiof Lniirrk, in
June 1679, and the mid Giivin j\Ioiit, who de-
^ii:i, thai he sawc the kaid ThoniJis Hin!fcl<
I ill arm*:» w iih the rcMK and knewe hint
iicnlarlti^ ; atid al^o Kobeit ]VI*ttbie, in
ocrk, who de]>ons, he gawe the 5aid Tho-
mt^s IijiiSL7iwo<Ki \ro^f uloiigst With the rehoUs
wad a biatf iu his baiidf and likewa^esjohn
Lindsay, «lioc;- maker in Laoetki who dep^jns
he jawe the Kaid Thomas Hiuselwoiid in eoni-
j>ttny wiili the rebi'Us, with a swoi'd, and
ligaincst the said Hugfh JSon»in*rTille of Uiir-
rata, his inajesiie's advoealk* addurfnl Jaiiiea
TikI in liamiUtKiii, wh" .1. i^.n^ that he sawe
the sfiid llug^li Sotum ah tymas in
arini-!* with tlir il- hells Ir : 6rstof June
and the twentie seeond day thereof the forsaid
car, and that he knewe bioi iiarticutarhe, and
cr Cleitandj in Laneik, who depous, he
p the naid thi^h ^HmuTvail), cf Urrats, in
(e* with ilie lebtlla, at L4ii\erk, Hamiltoun,
llamiltouii-miiir, b<?twixt the first and
A. D. 168I
rss
M*(iiiharneT in armei, wiUt the rebels, withfn
thelonii of Harnihoun* hctwjxt the f 1}
Di'wiiK-loife, and the defate at Coth\^
ajid a;,'^»ine!it >Vilhain Pirk, fewer, ci ljiialad,i
hin miu^*$tie's advoout adituceil Johu AHaTi, itfJ
I* M), wUo ^iepont?** he s:»wo Williiim!
' I, of Lairfiid, in ni"me« with tlie re-
lrMi>, V. iiiiin the Laun of Ilamiitotvn, Uol^i'Cij
8cot, if) nuniiltoun« who depons he bAwc the
^!'''' Udliam Park, severall tymts lu t-i)jii«-J
with the rt^belfa, at tlie dqH>UL!)t'tf|
A\ betwixt the first of June and tin
twentie-secoud day thenHtf, ami Johti lUhA
hertson, in Earnocb, %*ha dtpoik* he saw t* tlt^S
said VViltiiiut Park, fcwnr, ofLairfad, in urine»1
with the rcbella, in llamtUoun-Muir, in June*i
1679, and ae^ineit John llulchiesoni <»t Hare- 1
Inwe, adduced James TmJ, in llarnihotin, wbcil
depons he sawe the i^aid John lliitchrtfsou se«f
vcrall tvnies in ajuies with the rebel Is. at Ila»l
in Lan* (U, who dt^pori^ he nawe thi< Ftiid John]
Hutehie&'on, in anncs with the rrhedjt^ i^i
Joiu\ 1670, the tyiTve of the late rebellion, audi
Archihdld liin^^lwQod, in Lanark* whaj
depoDS he suwe the wud John HutcliieiioAl
ryditig with amies from the west home- J
wurde, the tyme th<p rebells wcr in nrmesj
and against ih^ «aid Lnke Greinshdtis, htl*
mjijrstie'fi advocat, adduced the said CafiU
Mount, in Lam^rk, who depon*; he sawe hltu Iff
armcs with the rebelU^ and kuevie hint parti- j
cularlie; and Andrew Uobertson, in BHshiir^^
who depons be sawe the said Lnkc Gretnsbeill^l
in armes, with two tronpa ol* the nbtUsj a4J
the Hhawfdieadmttir, on Sundny befor the bieak
at Botbwel-bridg^e; The w bilk wifnesses abovi
named, wer receavcd, sv^n " ^I'lrfr^d and ad-
mitted, in prc!>cnce of th< i^uw com- 1
pleaned upon, as?<y!iers rec- _ ■} sworue ial
the said cause for Iryali of the persons above |
named, thtr guiltiia&b of the rryme.s alor*
Bpecifit, wlijcli was moat clear and manifestpj
ther bcMng" not only one but three and four wit*
uesses deponeing pogitive therU|M}n, in respect |
wberof his majestie** nilvocate then protected ]
for wilful I error, atrainest them in case they
should acquytt or cleuf^ the dttfenders abf}v«
1 d of I he crymes I ^ ' ' r
\' ; yet true it i
;in(iiie named lieinc" * ' juuvrti mhih of j
eourt, end inclosi-d iii«sy4ie-hoHNej
and ha%i»ir '-'"•''* 'v-' »"-"> *^"Pi
poyntsof tl •
ther know 11,. ....
tered at^'atne m court 4: of j
the eleiir vcrificalion i i>er-» j
j»on» alMive mimed« llier jj^udht ntfeof the cry met 1
nlwve tipecitH*, led and adilnrrd in thrr pre*
s^nce, be the mouth and jr T
the ««:^id Ji»m<*^ Baird, ^d
U'd and ehoibcn bt' tlitui, ii; vii
, wilfuU be favour, paitiahtie, '
i lull ii)eaiieft,ii8lolvied tho
kmu l^k, fttid the oth«t
33 CHARLES II. ProctedmgB again$t Alex. JB/tftr and others, [S%
Robert Sandilands, merchant.
Robert Eliot Wright.
Alexander Henruson, of Newba?eD.
Jamet Graiff of WariestouD.
John Dundatj of Harriestouo.
Indyted and accased for the crime of wilfid
error ut in die preccdente.
James Buird^ of Sauchtounhall, who waft
chancellor to the said assyae, declaires, tbal
ther came but aboni sex paonalls to his rote,
and he fand them guilty according to his know-
ledge.
His Majettie's Adoocaie dedaires, he in
83]
persons abore named, though they wer bound
in lawc, b^ oath, and conscience, to have judg-
ed according to the depositions of the witnesses
and probation adduced be his roajestie's advo-
cat, receaved, sirome and admitted in ther
owne presence, which is a most clear, manifest
and convincing probation of the persons above
named, and ilk ane of them tber guiltines oi
the crymes above specitit. In doemg wberof,
the persons above complained npon, have most
wickedKe committed and incuTRd motft wilful,
manifest, partiall, perjorioos, at least temera-
rious error, nyn several! tymes againest the
light of thee own oonsidences, and against the
most clear prot>ation that ever was or cane be
adduced in any caose, civill or crimmall, in
hye contempt of his majestic, and his autho-
ritie, the wliilk being suae found be ane assyse,
^ey and ilk ane of them ought to be punished
■IB tber persons and goods, with the paines
-above wnniten, which ought to be inflicted
upon them in most examplarie maner to the
terror of others, to commit the l^e herefler.
Pencwcr.— Sir George M'Kenzie,* of Rose-
haugh, our Soi'ereigne Lord's Advocat.
Procuratort in Defence, — Sir George Lock-
^art, sir John Cunningham.
The lords in regard ther was not a compe-
tent number of assy sen present, continued the
dyettill Monday next, and ordaines the pau-
nulls to find caution for their appsirance at
that dyet, and the assysers present wer cited,
apud acta to attend ilk persoQ| under the paine
of two liundreth merks.
CuRif Justiciars, S. D. N. Regis tenta in
Pnetorio Burgi de Edinbuigh, 25 die
uiensis Julii, 1681, per honorabiles viros
Kitohardum l^Iidtlaud deDuddop Justi-
ciar] urn Clericum, Dominos Jacolium
Foulis dc Colintonn, Davidem Balfour de
Forret, Davidem Fdconer de Newtoun, et
Rogerum Hoge de Ilarcarssy Commis-
fiionarios Justiciarice dictii S. D. N. U(^.
Curia legitime affirmata.
Intranf
Alexander Blair, merchant.
Leu-cs Johnstoun, merchant*
Thomas Noble, ino'chant.
Captain John Binning,'
Alexander Bothwell,o£Gkncom^
James Bailifie, merchant.
Mr. Andrew Temple, of Ravilrige.
James Baird, of Saucbtounhall.
* lu sir G. N«Kenzie's treatise on the Cri-
minal Law of Scotland, upon several occAnions
assizere are mentioned, slightingly, if not con-
teropUiousJy ; and the same work exhibits a
atrong bias in the mind of the author, in ta-
Tour of the authority and power of judges,
rather tlian those of assysers. Of his treat-
Aent of the latter, see two mstanoes in this
CoUwIioUi vol. 8, 8«3| Tol. 10» p. 9T1« and 986.
primo loco, affainst Alexander Blair, AleaKander
Bothwel, John Binning, James Bailtie, Mr.
Andrew Temple, and John Ihindas, of fiar^
viestoun, and James Gray, of Wariestoun.
Sir Ge&rge Lockhart, for the pannalls aU
leadges, that they cannot he put to the know^
ledge of ane assyse becaoao the process itidf
being a prooess of error, and that the pamalli
were * temere jurantes super assisam,' as it »
extraordinar and vrithont any precedent npoa
record, so it is only foundit upon the 63 act, 6
iMurliaiuent king James S, and theifo canm*
be farder sustained then in the precise termci
and cases mentioned in that act of parliament (
and the expresse case stated in that act b
only wher mdyted persons are showen befhr
the assyse in the accusation of a trespassor
nottoraiid manifestknowledge of the trespassor
being bade it happins the persons that passe tm
the assyse wiUnUie be favours or partial meanek
to acqu^tt, that such assysers neing convMA
de temerario juroj/iento may be persewed as
guilty of error, but that act of parliament doe9
not in the lest conseriie the case of these paa^
nails ; in respect it cannot be subsumed thai
the persons iudyted wer showen and prodooed
to them, the pannals then called befor the fi^
syse not being sisted, but the prooedor ody
against them as absents which albeit warrand*
ed by the late act of parliament, in suae fart
as concerns the legalitie of that procedor ••
to any sentence, cooderoniiigthem, orfcr&ul*
ture, or contiscation of ther estates, yet doea H
not at all concerne the case of the act of par*
liament king James 3, which m tlie clear aisj
distinct woras therof, proceeds and reqnyre$
that the persons indytca should be shpiren and
prodnceif, and by the common principles of
law in materia criminale, ther cane be no ex«
tention of lawcsand acts of parliament ' de casa
* iu casum etiam ex paritate et identitate ra-
* tiouis,' although ther is no paritie or identitip
in the case wher pannalls are absent, and wher
they are present ; in respect wher pannalls ar»
present, assizers have oportunitysof mora&U^
more evident, and convincing convictions, by
the cariage, answers and composure, and inte-
rogations, which in ther own presence thew
may hear made, or may make, to the pannalls
themselves, and therfor this case being of so
high and extraordinary importance as to the
lives and fortouns of his miyestie^s
and whcmpon all assyzen may be
«6]
ijpcw « Pr4fC€99 of Errc^
A«D. V6tf]*
[86
question by great nmyvie%, ftnd these great
assyses dra^ven in qu<?slion agAitie beioiT a
imrtinnierit; llji* prucoe uf crmr not be\u\r in
ibe leifues of the act of |mrliainc:ut kin^'' Jiuucs
3, wbtuujHiu it Ls foumJit, cannot be susuitiieiJ,
or the pannnls put to the kaovvletlge of uiie
Bsty%c tlierujH)!!.
2, Although the c«se wer in lite exprcsse
femics of the act of parliament, tiiat the pa«-
nails hado bein sisted luid produced, the con*
frair wherof ia ooitor arid known to tlie lordis of
jtisticiarie^ ^el no pcTbon cau bo fH'rse^red as
guilik of perjurie, and couimitting^ wilfull
error, ei^cept wlisr the? are relevant aitd special!
quali^cali4m8 cofidesceaded upon and offered
lo be proren, that the assy sera did assolyic the
trespassors be favour or partial itie, and the
reaaoD t» most evident, because the assysc bein^
hj the lawcs and inviolable practice of this
fijnmlom, the sole and absolute judges of the
|ifoQation according as they shall he convinced
tberaf, iQ ther conscieooes, and who in the ua*
tufe of their office and duty^ ha%e it in Lher
?ower to con«$ider *■ momcutuni probationes
<}liantum iidei e^it te^tibus adhibenduin,' it is
noway es sufficient to persewe ane assjse ' super
* hoc aolo medio,' thai tber was a probation
adduced, hui it most be made appt ir that the
ijisyse hade no re^aird to the liaid }>rohation
II Don other extrinsic grounds and consideration
Of parltaliUe and favour, such as brybrie, cor-
ruption «nd other qualitlcatioiiK of that kind,
but if no iiuch favour^ qualifications or g'vatili*
CAtiouscane be coodescendit on and quahlitil^ so
as iLe assyse have proceefht upon the sinjjjle
ric for principles paasen for a christian duty and
h«*roic devotion, holU in this and our n«;i^hboiir
nati^m, uhichas it mnkestliedebateinir idiliese
two [• I ' ' . unnccc4J>ary, t^ \
mall' » clear* yet foi .
sako, Ins iiuijout-h dtlvocat answers:
Tothetin$t the act is op poned, i I
who arc guilty '^' ' " - -ojuramcui.'^.^.t.^i.i^i
distinclion) tol • 1^ vihich if it should
hohl inanyca-.-, il much morr hold In
treason, and against persons who ar v
as tbe\ dare not appcir, and ihojn y
consider what wise men our lawyers had ijcm,
if they hade punished these who hade a.vsolytd
a man for petiie theitt, or mutilation, and yet
would liave allowed inipunltie to oppiu Rbclls
{►erststing iu retwHiou, nor does tlie words
bundit upon in the act of purliament any \^ay
weaken tiie tybell (those words shoucn to ibo
aasyse) meaning only that wher pcnKHJS arc
designed and spccJfieil to the assyse in a ly bcIT,
and not vi tier tlie iKMlies lov pruducetl, for 1 may
show e a man to be a rebeU, and ^et not showe
hm persOD to be at the hare, and it is verie
eftraing to thiidc that rcbells either to he foHUult
in absence or efter death, or if the la we should
yel otxlatne other })erson8 to be forlault m ab-
sence (as probahlie they sbortUe will) ther being
greater piohabiliiie of assoiyeing these be par-
liahtie then any others, because of the identitie
of priuciplesi law should not have protidcd a
remetly wtier ther was greatest temptatiou and
hazard,
'id. The act of parliament ordaining persont
to be forfjulied in absencei appoyuts the pro-
oonviction of ther onn reason and consciences, i bntioti to be led againiit them as if they wer
no such procedor cane fall under the act of •■-^—•^ '—» *u««*\.- .i.,.„:-, ..„ ,u. *:.,.>#.«.* *^ k«.
]»arharoent to ibund against thein ane process
of error, and that lliey are * temcre juraute«
* fuper oMisam/
Hts Mmeniics Advocate replies lo the firii,
That the law having forsein the great arbie-
trariencs and villainies that might be com-
mitted by cleogiojf persons guilty, wherby
not only tlieprmcipUs of govcrnnieut but of
human socictie would be disoKcd, in re*(i/ecl
that the grt^a-test malefactors might exfieot
iuipunitie, r.htrcby not only government but all
focuritie wouhl be cast louse, and every privut
omn luive power to reuiitt and indVinaific
crymes, though never so great and horrid,
they therfor made this excellent and clear law
which tloes very deartie ordaine all ' tern ere
*yuraiit«s super assisaDi^ to be puuisbed with-
out distinction, and which act could never be
put in execution in a case of greater moment
then is the aK*olyeing of nyn oppin and nolto-
rious traitors, who hade ubsolutehe disowned
tJhe king, declaircd him a tyrrau, and burnt
&ts lawes, nor in a case so clcarlie proven, the
pro^tJan being an to all the tiyn, most clear atid
ooovbceifig, and the pari i«*>< a^^nylieil haviug
not only b^m titer to the kuov^ledl^e of wholl
^rrei and oountrcys, and who durst not com-
ir wheo cited but arc vei rvding in nartics
^bnatming nnd murderuig tue king's uoncstt
■id Uf »il 8iil{|icla, nor in a tytne wlmrio perjo-
pi t*btnt, and therfor U»er is no distinction to be
made but Jhliant jurin^ the lawe makes lliem
to be present, nor does the reason of difference
condt^cendit on militat any waves in this casc^
for tile assyse are not to consider what might
have beiu said if they hade bein present, but
are to proceed * secundum allegata it probata/
aud theHbrif the probation l>eiug incontraverted
(as iu ibis case it was) they should have eou*
demnetl, aud if the pannalls hade any thing to
%^y for tliemselves sibi imputent^ that did not
com pet r l>ei}ig citexl, and they may htfve a re*
medie if they Uiereller compeir and ofler them-
selves to a tryall.
To the second the act of parliament lyi
opponed bearing that persons assolycj ug nilif]
JMstlie are to be accused, not only of per- '
verse and partiall assolycing, but ot * temere
' jurantes super aasisam/ aud the taw could
not distinguish whither men did by par-
tialitie or wiifulnoss assolyie, or if they as-
solyied only rashlie by error for utalice and dof |
signe, being latent acts of the miud, the Iaw0n
could not know them but by tlie etiect, for aue
assyser may be of those peruitious princijde$
that thinks Bothwelbridge was no rebellion;
and yet no iu:in knevve it but God Almighty^
and tliertbre the law has tixed upon most cleac
grounds which is to know the cauae by the elW*
iect, nor cane ther be any other pt'
fiilneft and partialttie ii' it w«r to be <;f i
U
87.1
33 CHARLES II. Proceedings against AU». Biair and others, [8S
on and proven, then that efter a clear and con-
▼inceing probation was led of the guilt they as-
solyied, and this is the same probation tliat
could 1)0 led of 130 witnesses wer led, for in the
c(»nstruction of lawe, he does wilfullie assolyie
"Who assulyics contrair to probation, that the
)awe allowes, and the probation of two or three
witnesses in a palpable matter that falls under
sense, such as I>eingin amies with the retells,
is as coRvinceinjr a ]>rubation as if 150 did de-
pone, and if this condescension wer requisit,
this law wouifl be absolutlie overturned, elludit
and made useless, since it will be impossible
for the king to prove partialitie and wilfulnes
otherwayes then ex re ipsa, so that this inter-
pretation being inconsistent witli the designc of
the luwe, and the securitie of the common
w&hh, this sense cannot at all be sustained or
fastened upon it, for that wer not to interpret a
lawe, but to abrogat it.
Sir John Cunningfiame duplyes, Tliat the
punishment which is to he irrogat in case the
pannalU be found guilty, l>eiug no lesse then
viz. 1604 and 1635, which took no eflect, nor
was the assyse put to ane assyse.
2d. The act of parliament 1669, which flip-
poynted probation to be adduced in presedca
of ane assyse in absence of a traitor, in crymetf
of treason, cannot be extendit to comprehend
the case of ane assyse of error, for as thtf
cr}'me of error is altogitlier contradistinct from
the crimes mentioned in that act of parliament,'
which was the only subject of the parliament's
consideration at that time, so no law cane im-
port the punishment of error ; but tbe act
foundit upon in the pro|>osition mider which
the pancalls fall not as aforsaid, nor in so great
and important cases to the loidges whichSawa
equiparats to ther lyff, must con5e(|nentialI in-
ferences and illations from posterior lawes be a
ground to irrogat so hye punishments, eape-
ciallie wher the disparities are so urgent antf
pi-egnant as are adduced in the defence.
3. That notwithstanding of his maje8tie'»
advocate's allegeance, the lybell ought to bear
and should bcqualitied upon parualitie and fk-
infaniic, that thcv shoultV have no ri;;[||t to stand I vcur, is evinced first from the expi'csse
injuJgijiiicnt,
and this being so great a
i;
tfie tinsell of tlier*^ estaies, Sec
conceriic of tho
leidges, they <»u|L,ht not to pass to the know-
ledge of an assyse in order hcrciO, but upon
a clear, positive, and express law, and f-n* a
crime subsnmed upon in the tonnes of lawe, anrl
thcrforc seeing i' cannot he contiavertcd that
the pui1ic-s clenged wer not showcn nor pro-
duced ber<»re the assyse, the assystrs who lie
pluialitie clenged, cnnnot upon that act be
[)f;]*scwfd for error, and as to the replye made
l)e his :n:ijcstie's advocat, that these word.s in
the act ol p;irliament, viz. the indyted person
pliov.j.'n and prodisced, imports notding else but
that tlie ]»rrson he spociallie designed, the act
of p;nTianit*iit is opponed, uhich requyrcs the
showcing oltlie ind\tcd person, and it is most
ccrlaiiic, and cannot he contravcrted, thnt the
act re«jU3TiKl the production of the person on
the pannall, because befor the late act of par-
liament, never person past to the knowledge of
ane inijucist but wher he was present on the
paimall, and as those are the expresse words
and clt ar import of the act of parliament, so
in ord'T to the clearing of ane assyse, tln-r is
ant* al>so!ut \ast diH'ercnce betwixt ane assyse
clenging or convicting parte audita et present c
et pii! ft inaudif/i, w her the conscience of the
assize i^ to be convinced of the pannall's ac-
cession to the guilt, or iVeedome from the
guih by the moment of a probation, against
which a pannall may object, or by the
riionicnt of the pannal's delcnce or excnlpa-
ti»>p, o;-f| r..it\vithstautling of this act of par-
liainciil. r.iil tliat now in the space of 200
\cars since the niakcinLT thereof, ther could
Ii4»t ln:t^l:ave oecurred cases uiierrin ther was
much more cn'1'.Miee and elearne* to indvt ane
assNsc of error then in this Cf se, ytl his ma-
jesfie's adxtuat cannot make appeir by the
Journnlls of Justiciary, that ever ane assyse
was convict of eri-or, and so fare as is knowen
iMVAF aiie anyse accuaed of error but t^vicc,
oftheactof parliament; S2dlie, from the na-'
tore of a verdict wherein assyf^ers proceed upon
tlie motion and conviction of ther own con-
sciences upon ihu poynt of probation ; Sdlie,
from the qualitie of *|»ersons who passes upoa
the assyse, whom not only the law of the kin^
dome pVpsumes to be probi hoiuinei terra, but
being Jici-sons culled and uominat by his ma-
jestie's advocat, ther integritie and fidelitie
cannot be dmwen in ijuestion mearlie, becauie
of ther verdict, wherm they are supposed to'
have served ther consciences, being under thai
Magnum sucramcntum which assy sere give
when th oy are choisen, and the tords of justi-
ciary would be pleased to consider ho we im-
portant ane case this may prove wher ther is
so frequent use for assyners, that if tbe assyser
serve his conscience and elenge, he most then
rune the hazard of ane great assyse, and yet
serve his conscience he most in regainl of nia
oath, and his convixtion, and it is uiion thia
consideration that the lawe has expresslie re-
quyred partialitie and favour, because it is not
to be presumed that a man upon oath would
damne himself either to assolyie or condemne,
unless it could be made out by these qualifi-
cations of lordes or hr3 brie, or dounright la-
vour from kindnes to the partie, which cannot
be pretendit in this case, wherein non of tlie
parties insisted againcstdid so much asknowe
any of the parties cleoge<l, and the pretence
that it was done from a principle is a worse ac-
cusation then the dittay, and absolutlie unjust,
because those verie assysers concurred in the
cx>nvieting of eight and fourtie at the same
tyme.
Sir Gein-gc Lockhart adds, that it is most e?i-
dent by the act of Parliament, king James 3d,
and by the inviolable practiq', and records in
the books of adjournal, that the penrons of
the pannalb) ought to have bein sisted and pro*
du(;e«l, and it is a glosse aUogithcr incopsiatept
with the act itself, that these words the per^*
f
89]
upon a PracfMs of Er%*or*
»oii indjt^ ihmren to the aiisyfir) is to be iin-
*kn»t#HMl only of a de^ig:nation oi] the ^innunlK
be QAiiie anJf(iretiame,or the )).k«^anil ibe rcfi-
%on tsmo&t clear, for i^hiiber the paniialt tie
lircseot or abs4:nt, all criininall I)'b«llH| and
<:i^ill rctjuires »iuii ' hniis, aiul ihcdor
UiG ^howioLC tlic [ led Yvaaaststin^
and [irmhimn{rthe |m jvun, und vvliidi not only
IS rcfjllyrc^d by the suid act ot* Parlianu'ut, but
V/SKi uls<> retjuyrtnl by the couitnan law, uttd
^itj lawt* of all nations, utid the canlriirv
whcrof was nerer iiretendit or beard of till
the late a«*l of (jarliutnent \ni9* Aod as to
that ai^iiinent tb»l the late act of parliament
hoc i^wtbat it allo^res a procet^dor agaiue&t ab-
■enlij and d<*c1airts the sentence and d(M»m of
Inrtanllurr^ fulloweijtg' tberenpon valid, does
also iiiferrc that assysers, if they should as-
golyie tijcraiust a clear probation nnay be per-
«cwcd for error, it is aDswered, the argiimcDt
IH aoe absolute inconsequence, and on the eon*
trair the same is retorted, because his ma-
jeaiie and estates of parliament makein^ a
liiwc in mtitaid connexa and dcclairing: tlie
ipeciall eflViis of that prucedor, that it should
Ikt valid as to ilie sentence condemnin;^' and
the doom of forfaulture, and beiD|f let lurvcc^
taria oa to these poynts» it is impossible that a
lawe decfairin^, as to special! effects, and being;
both ft corrurlory lawe, and * in materil
' mitxime odiosa,* it cane l)e extend it t<i ai»y
other effect then these cxprest, and the com-
fnt>n rule of lawe takes place that '^ casus omis-
* stis habctur pro onitsso/ and the lords of ses-
ajou are iti usp so to interpret law* and arts of
{uirliainentt fVen * tn materiti civili/ wlier the
ane itst^lf allowps a ju^ and rationall exten-
sion * ex firesuniptfl nipnte lefjijilitoris/ ns tor
example in tho>;e sUlute*relatio|r lo r«»rnpr)se-
hng' fLiid aitjudiraltonHf bei^aime the stiitut as to
adjudications d^ies not InMr that sp«»eiall eflert,
thai lite udjudi;rr8houUI pay a cuuiposilion to
the anjienor, Ibe lord** iifMin the corirnton
grounds of lane, that statuts wcti* itrtctuntfn
jun$, and could not be cxtendit, thouyh iher
was the saire pari lie of reason^ yet ivould not
eic tend ibe : taint of ir'tmprymuijlti the case of
tidjudicfltion, unilll by the late act of ^»ar)ia*
nient, tiiat particular case was providit (or, but
it werane absnlul ovi-rttirniflg^ of the fundu-
lioo of .1' )lt h«es, that a posterior act
of parlt k ^ '*'«' torrrrlorirt, as to spe-
cinll ertV'i t> mrn )u mentioned, and proceeding
upon a siieciall narrative that it wtr unjust that
ptrsou^ by tlitr ub^fiice and contumacy sliould
reap any ad^aniutfe, nhirh narn*tive, tho it
lie verie just, a» lo tlie imntmlb themselves, who
did not compeir, yet dots'not in the least mi-
ll tat a^ifist the aM3'<(e, that such nne act of
parliniuent pmce«-dintf uj^m such speciall con-
dci'atinns, and only innovateing* the former
W.fare and cu»tome as to the speeiall tacts tberio
PwPntioned, should b)* ane interjiretation be ex-
JH»nH to lay ane fun da t ton of a proces of error
■guinst the ansyaef iv|\^n the pannatls wer
not pri*!5rnt, and by i*hose presence they iiiig-ht
ktve beiu cleared in ther cooicifQcefi, of roaoy
A. D^ldSl. [90 I
doubts and questions, whereof it was impossible j
ihey could lie cleared beinc" absent, and tho ihef .
wer any reason to extend ine wt of parliament J
ktn^ Jumea Sil, that it should proceed in tha ;
case of asi^ysers wher panoalls are absent, iti J
cane only be done by act of parliament, J
!?do, Assysers by'the lawe of the kingdomr^J
being' ab^olut judges of the probation^ as they]
may eondemne without any probatioo at all ]
up«m the single conviction of iher own con-
sciences, so • momenta probationmo sunt lit
*arl>itriojudici** •/ and to convince the Lords of
justiciar)', that ther is neither absunbtie nor
any unwarrantable streatch in this |K») nl, ther |
is not a more famous (question in tne canooit \
lawe» then whither * judex contra privatam ,
' couiirientiam teneatur sequi allegata ct pro-
* bata,^ whcrin there is great and euiinenl au* ^
thurltes upon all hands ; Hut the lawe of tbis^j
kin^dome has clearlie datemiined the case as to 1
assysers, that ihey are to proceed and deter- <
mine accordinjf to"^ the conviction of ther own
conscience, which most be presumed, nnle««#j
his majesties ndrocate wer able to qualitie tiitl |
instruct such fjualitications against them, m
would make it appear that they did not pro*
ceed upon conviction of ther consciences, buf
upon other unwarrantable and unjust ground!
which if they wer coDdescendit upon and
proveu, wer a clear grouod lo a great asayst I
to find that the foraier assyse were * temerd
*j«runtes super assl«am,'and it is stroins;^^ doc-
trio to think that ane assyse who ^enerallie ar€^
not lawyers but called as * probi et tideles ho-
*■ mines |tatrite;^ to jmiceed according to that
measure of li*rht and conviction, that God hai
endev^ed thern vvilh, and eiter tliey have taken
tlier great oath to proceed without unrtialitie
or favour^ that such ane a^^sy^se upon the sinj^tft
pretence that a prtd>ation does convince others,
which did not convince iliem in ther consci-
ence^, sboubl be a^j^uod for aue unsy se of en'or,
unlesse ipialticntions of brybrie and corrup-
tion, or aniCf Client pactions to aeipiyt parlies
whatever should be proven could be oualiOed,
and pr«iven a^^nist thetn ; And as to that pi^e-
teoce tliat if nucIi <jiialificati<»os wer requyred
the net ot parliami-nt would be elusorie, and
that It is not i^tM^siUe tor bis majesties advocat
to prove the same ;
It isansweieil, the pretence is most ifround-
les and irrelevant and i|s most mijiiMt and in-
cousequentidl» that lens e qualifieauotis »hould,J
be recpiyreil to convince ane assiysc off
trror, * et de temeran jmnmento^ then the
lawe re^piyres even in civil cslscs to re!»cind
sentances; attd yf t such f^uabtications of cor-
ruption, brybrie, and partialitje, are leqityreil to
l>e made appetr atraintit witneasesi in any re|»ro-
bator of titer testi monies, and without whichg
such repn»liaiors never was nor cane be sus-
tained, and therforanc htmdreih instancy caae
be g'iven that such quabfications bo^th have
ticcurred and bein proven, so ihaftKerja 00
reaKon lo pretend, but these both mi^hi and
ou^hi to l»e proven in the ease of a^vvsera^
and without wbiehj it is tmpoisible that in' Ian t^
33 CHARLES II. ProeeeitHgi againa Alex. Blair and taken, [9t
91J
or justice they cane be found goU^ of ac-
quyttinf^ paiinalls wilfullie, temeranoualie, or
by partialiiie and favour, wbicb are the expresse
tenues requy red by the act of parliament, kinff
James 3d, and if such a fundation war laicl,
there is no man, nay scarce lawyers of tlie
greatest reputation, could adventure to be
members ot assyses, notknoweing howefare
tliey may be chairged or overtaken. And
the lawe of the nation putts assysers upon
no such racks or difficulties but only tbafi
as honest and well meaning men they
should proceed according to the integrietie
of ther consciences to condemne and as-
tulyie^ and it is beyond doubt, and the bookes
of adjoumall make mention, as the persewer
protests tor error, so the pannalls may doe
tlie same, so unto what inextricable labyrinths
ahould assyers be involved in by such pro-
testations and hazards upon all hands that ther
estates and reputations may be drawen in ques-
tion as guilty of perjone upon that smgle
pretence, that they ought to have nroceedit
otherway s upon the probation adduced ; men's
reasons and apprehensions, being as different
•8 ther faces, and that which seems to be
clear and convincing to one being dubious and
debatalile as to another, and thcrfor the case
being so high and of such extraordinary im-
portance as to all men's securities, a pro-
cess of error cane be no farder sustained then
according to the act of parliament of king
James 3u, and even thougli the pannalls then
indytcd hade bein sisted and compeired, his
mqjcstie's advocat should prove and qualifie
bryhrie, coiTuption, and otlier grounds of gra-
tincation.
The lords justice clerk and commissioners of
josticiarie having oousidred'the lybcU and de-
Inte, they repell the defence and duplie in res-
pect of the 1 yhell and replye, and remits the
lybell to the knowlede of ane great assyse.
As&ISA.
TVilliam, Earle of Dalhousie.
Robert, £arle of Roxburgh,
C'oliii, Earle of Balcarras.
llie Earle of Airlie.
The Viscount of Oxfobrd.
The Lord f uviotirstoun.
John, Lord Elphiogstoun.
The Lord Elibank.
Andrew, Lord RoUo.
Capt. Alexander Livingstouo.
The Laird of Gostbord.
IMlt. Henry Maule.
Capt. M^Ceiizie, of Suddie.
Alexander Murray, of Melgum.
Sir Andrew Bruce, of EarlcshaU.
Mr. William Livingstoun, of Kibyth.
Sir Mark Carss, of Cockpen.
Sir John Why turd, of Mdntoun
John Skein, ot Halyairds.
Henry Trotter, of MortounhalK
Adam Urquliart, of Meldrum.
Ur. John Bayne, of Delneys,
Wiiliam Graham, of GurtiiiDioir.
Sir Wm. Binning, late provest of Edinboigh.
Capt. Andrew Dick.
The Assyse kwfullie swome, bo objeetioD w
the contrair.
His Majettiet Advocate^ for Probatioo, ad-
duced the Witnesses Deposition, led and ad-
duced be him againest the persons whom tho
pannalls have assolyied with their verdict ibl-
towiug therupon, as also the Pannalls Decla-
rations emmitted Jliefbre the lords of bb ma-
jestie's privie council, whereof the tenor ibi-
lowes:
Edinburgh, 16 June, 1681, in presence of Ina
miyestie's privie council*.
Jamet Gray, of WariestouD^ being examined
* If the verdkt had been taken with perfect
regularity, there would not have been oocasioD
to resort to any other proof of the votes, wbicb
had been given by each of the assizers. Thia
will appear from the following passages of Mr.
Hume's Commentaries, *< respecting Trial for
Crimes."
<' To pass to the last article of the doty of
the assize, the return of their verdict into oourt.
For this purpose an hour is appointed by or-
dinary style of the interlocutor ordaining then
to inclose ; though if they be still sitting wbea
that hour comes, the court may adjouni anew^
and appoint them another hour. In the or-
dinary case, the verdict can be received only
in the presence of the {lannall ; for, as men«
tioued formerly) if even at this period of tba
process he maxe his escape, or withdraw hia
appearance, no farther step can be taken in tha
trial, but sentence offugitation only be pro-
nounced, in like manner as if he never haa ap^
Scared at all. Like other rules, thb one may
owever be departed from in extraordinary cir-
cumstances, wnere, without injustice, or great
inconvenience, it could not be observed. JaaA
such a situation occnrred in the trial of Peter
Glasgow, and others, in October 1797, for rioC
It happened here, that Glasgow was taken ill
while the assize were inclosed, and beoauM'
unable to attend at the appointed hour for ra-
ceiving the verdict from their hands. Never-
theless, af others were under trial on the sama
indictment, it was held that these had a rigfat
to know their fate, and conid not on hb account
be subjected to farther anxiety or confinemcat.
The verdict was received therefore in absaooa '
of Glasgow, and he had sentence afterward^
in pursuance of hb conviction .
" It is equally true, that in the ordinary caai^
the verdict can be received in the preseaoa
only of all the persons of assize. And the ra»>
son is, that they may, in open court, hear ihm
verdict read out from the record, and dim
own and acknowledge it, as the very verdiol
which they have found, and have committad
to the keeping of their chancellor, to be dall«
vered by him, as their act and decision to th*
bench. For, as the writing b anthenticaiad
with thenameaonly orthecbanceltorand olerfc,
it wo«M otlmrwisa ba io.tha powar of ttca«
9S]
tftm a PfQCtH 0/ Errm^.
A^D. \6ni.
c»
caiilS»MS he Hid Msmy}y\t tome ahA conflemned
olKei^, hut docs not remetnljer t le
whom^ fuiil declnircs be k notr.M of
twh •wearing^ huLwlU stand t>y bi^ lutiict.
Sic Subtcnbitur^ Ja, Gbay,
Alexander Biair, merchandp dediurefl ecm-
formis la James Gray,
^ Sk Siihcribitur^ A» Buiiiu
AUrander Bothmelly of Glefu^firas, decdarce
lie aisolycd some of the pan nails, and OOQ*
detODied others, but docs not remember whither
lieaiaolyted any of the nyn or not ; confesies
' his ftuh and comes in the king^'s will.
Sic Suhscrihtur^ A. Bothwell,
twop^TVODS, in concert vviih tach other, tomip*
E:e9stb« true Terdict, and subslilule anotlier
ill place, Ajs long therefore as the persons
of ttBnze are all snrrtving, and able to attend,
i ^e court will not readily recetre the verdict in
the absence of any of them ; bnl will rather
adjourn that business to another time, and
take order for compelling^ the obedience of htm
who is refractory, or negligent of his duty.
Such an adjourn ment seems to have taken
place in the trial of Alexander Cunningham for
tire-raising, July 31st, 16T7. But, like the
former, tliis rule'is suitable only to the ordinary
case, and is not observed so much for necessity,
as out of scrnpuloasness, and bAcanse in such
niatten the Uw is desirous of having the best
and moBt loletnn evidence, if it can easily be
obtained. It ti» not therefore to be imag^tned,
that the verdict is Irtst, if one or more of the
ttsige, or even the chancellor himself, happened
, l» die, io the interval before the hour appointed
Ibr returning it. Nay, if any of th em be Uk&a
with a long^ and severe illness, such as disables
liim to attend, it seems probable that here too,
on pccmint ^f the ponnel, who ouffht not to be
kept in suspence. and has right to hjs immediate
, I'reedom in case of acquittu, the rerdiirt sliall
be received in the presence, and under the failh
^d testimony of the other members of assize,
•* The names Of the bquest being called over
In presence of the court, they are asked concer-
, fung their chancellor, which of them he is ; and
from his hands the verdict in receiveil by Ihe
|ice«ding jud^; who hanng unsealccf and
penised it, delivers it to the cletk of cpurt, to
te hy bini traotf^nYed into the record -, after
' which, and a C4ifefu] comparison of tlie record
snd original writing, which takes ptace under
Ihe eye of the court, it is annonnced and read
out aloud. The veolict is then sealed up, io
C'>mpliance with the rcgulstlons of 1672
JNo. 9) which declare that it shall never agitin
I oe opcnetl, but by order of the judge ; and that
Ifthe elerk inf Vrngc this prahibitioD, be shall be
mmMied with the lus^ of his oflioe, and other-
wise, at the discretion of tlie eourtp At that
lime, at appears from the way in which ttiis
article is iutrodur^d in the statnt ICTt, it was ihe
main object of this ordrr, to prevent any all*'-
rmiiott by the clerk or others, of those marks
lMi4<?b wcra tbi^n subjoin*^ tv the ti%W9B of the
Jvhn Binnhg dedntres be oanolyed some of
the defenders, and ooodesntied others that wer
paj^nallcd, confesses bis fauH and oomes in th*
king*a mercie<
Sic Suhcribiiur^ /owjt BnwfNO,
Jawct Baiilte, merchand, dechirrs he does
not remember whom be condemned orftssolyied
of the persona eondescendit on, and «MUMn to
his veroict.
* Sic Subseribitur^ Jasubs Baiuje*
Mr* Andrew TempU^ of Ravilrige, declairei
for the most part he condemned all ♦ and as-
solyied some, and comes in the king's mercy.
Sic Subscrtbitur^ Andrk w Tkm PtB *
several assizers, for tJgnifytng bow tbey voted
and which served as a direction whom to ar*
raigni in case of a prosecution for wilful error,
on assize. Though nut at fir^ intended; thii^
practice serves however the far more useful
purpose, of hindering all alteration of either the
substance or the form of the verdict, on th#
part of the clerk or others, whereon to found 9
flea of disconformity of the record and verdict,
f any question of this sert shall arise, the vei^
diet having remained sealed all the while, and
in the custody of tbe court, will, on bejn^
opened in their presence, stand free from all
suspicion, and testify for itself. In the trial of
Alexander Blair and others Ivy an aisijse of
error, on the ?5th of July, 1681, the lords or-
dained the verdict of assyse against the nyno
persons assoilzieil to be oppined and broke up,
and given in to the great assyse as u tneau of
probation. The verdict was opened and com-
pared with the record, and again sealed up, rii
the case of Gabriel Cnnningham, July t?8fh,
IT 30, who inaisled m sns|ieiisten of a capital
sentence, prononaced in an inferior court.
The like revision seems to have taken nlace in
the case of Livingston (Madanrtn, No, 55.)
%vhere tbe verdict was remitted for considera-
tion, by the judges who had received it on a
circuit. Intbec*aae also of Hog and Boutur,
Jidy 24th, 1738, on a motion for the prinnels,
*^ 'f hat there was Bome variation in engrossing
the verdict of assize in the record from tb#
principal verdict," onler was given to unsc«l
and compare it ; and, being fouiul ri^t, it wai
again sealed up.'* Vol. 2, p* 266*
" The form fof the v^erdict] inost bi^a wreit-
lea form. UTierein the first thintr that is
marked, is the Sederunt^ or the names of th<i
persons of assize ; which serve'4 the iIoubl#
purpose of vouching tliat they were fully met,
aiidof applying the verdict to ihe parUculAr
case or trnif. Frurinerly, ibis wm neeilfid for
a Ihiid reason, in vrder th»t each luiio'v vole
might be suhjoiacd to his iinmc, whereby to
distinguish the persons who might 1h^ liable to.
trial for wilful esHVOO assize : in which view
tlie ix*gulatio&a of 167% |iaiticularly ordered
the chancdlor of a%size to attend to that mat«
ter,'' Vol 2, p. ?78.
* This wt»rd itlt apptars to bf redoodatt.
95] 33 CHARLES II. ProceedingB again$t Aiex. Blair and others, [96
' with the proDoancinfjr of doom and s«nUiioe
agaiucst them till Thursday nixk.
The anid day the lords with conaifiit of hii
majestie's ad\ocat, deserts the dyel agaioest
Lewes Johnstoun, merchant, Thomas r^oble,
merchant, James Baird» of Saucbtounhall,
Robert Sandielands, merchant, Robert £liot
Wright and Alexander Henryson, of New-
haven, who wer |iersewc<l for error cooforme
to ther dittay booked the 25th of July last,
Simpliciter,
John Duudatf of Har?iestoan» deelaircs he
condemned and assolyied some, but does not
nowe remember he assolyied any of the nyn,
and holds by his renlict.
Sic Sub. J. Du*NDAs. RoniEs, Cane. I. P.D.
Sir JohnCumnghatnet for the pannalls, takes
instruments that bis majesties advocat declaires
thut he makes use of no other probation
againcMt the pannallsr, but the depositions k<l
ugaiiist the persons assolyied, ther verdict and
declarations above wreitten.
The lords justice clerk and commissioners of
justiciary, ordained the verdict of assyse
against the nyn persons assolyied to be oppined
and brock up and ^ven in to the great assyse
as a mean of probation.
Follows the verdict of the assyse.
The assyse, all in one voice, elected the earle
of Airlie cnaocellor, and A. M urray ther clerk ;
The chancellar and wholl assyoe having porticu-
larlie considered the several depositions led
againest the nyn persons contained in the lybell,
assolyied by the pluralitie of the assyse, finds
all in one voice the pluralitie of the sdd as*
ayze guilty of error ; and as to the sevin im-
pannalled they find James Grey and Alex-
ander RIair, guilty by pluralitie of votes, my
lord Balcarras, my lord Oxefurd, Gosfurd, Mr.
Henry Maule, Rollo, Alexander Murray, Mr.
Livingstoun, Mortounhall, the laird of Gart-
more, sir William Riuuiog, find them guilty if
the councill dcclaire that those nyn wer the
finly |»erKons proposed, and they confessed they
absolved them. As to Alexander Both well,
of Gleii(»rss, John Binning, Vintner, Mr. An-
drew I'emple, of Itavilrig, are found guilty
by the assyse all in one voice ; and as to
James Baillie, finds him guilty by pluralitie of
votes, niy lord Balcarras and tlie rest betbr
uaiiMMJ iiualifieingasformerlie in the case of Gray
and Blair ; As to John Dundas, finds him not
ICuilty by pluralitie of votes ; The earle of
Airlie chancellar, my lord Dalhousie, Karles-
hall, caiitain M'Kenzie, find him guilty.
Sic Subscribiturj Airue, Chancellar.
John Dundas, of HarviesMon, takes instru-
ments upon the verdict. The lords continues
the pronouncing doom against the jieisons
found guilty of error till the 27th instant, and
ordains them to be carryed to prison, and con-
tinues as to the other pannalls till the said day.
Jtt/y 27, 1681.
The lords continups the dyet againest as-
sy sers for error, till Wednesday nixt, and or-
Jaines that are found guilty to be detained
prisoner till then, that in the mean tymc the
saids lords may a«lvise with the councill ancnt
the punishment of such who came in the king*s
mercy.
August 3, 1681.
The lords continue the dyet againest captain
John Binning, Alexander Bothwell, of Glen-
corse, and Mr. Andrew Temple, of Ravihige,
wha ara found guilty by ana assyse of error, ;
4 I
3Ir. Waller Pringle, for Alexander Bhir
and James Bailyie, merchants, James Gray, qf
Waricstoun, protested againest tlie verdict, as
the ground of any sentance againest them,
in res|>ect that ther vras a former verdict, and
the doors oppined and the samen broke np, *
* <* One thin^' says Mr. Hume, Commen-
taries ** Respectmg Trial Ibr Crimes," vol. 9,
p. S73, **• is now matter of uniform observanoe,
mdeed it is a necessary conseciuence of the sta^
tute 1587, c. 92, that the decision of the assixa
is transmitted to the court through the medinm
of the written verdict alone. Wherein if there
be any thing obscure, or defective, or even con-
tradictory or unintelligible, this cannot be ex-
plained, supplied, or amended by the assize in
court, on the question or suggestion of the
judge ; neither can the judge remand them
mto a stale of iuclosnre, privately to reconsider
and correct their verdict, for themselves. It
must be taken from them as it is, aud receive
the judgment of the court, with all its imper-
fections, how gross soever these may be, and
without r^rd to the prejudicial conse-
quences, which may sometimes attend anch
an issue of the tnal. It is true, instaocei
are to be found of the infringement of this
rule. Such as that which is recorded by Foim-
tainhall, in the trial of James Learm<^tli
i!)ei)tend)er 10th and 1 1th 1678, where, as thai
judge relates it, the assize were repeatedly re*
inclosed, till they found against tlie pannel.
Such also as that in the case of Marion Wcir^
December 3rd, 1678, reported by the sanie
judge, where the assize, *' after they had beea
abroad all night, were the next day, by com-
mand of the criminal lords, and instigations of
the king's advocate, reinclosed to mend thoT
verdict." As*far as 1 can judge from the
record, though expressed somewhat obscurely,
the like had liappened in the trial of Alexamler
Blair and others, August 3rd, }681, convicted
of wilful error as jury men in a trial for treason.
It was objected, that no sentence could paae*
ap:ainst the paunels, " in respect there waa a
former verdict, and the doors oppined, and the .
saiiiiii brock up, upon which jMr. Thomafl
Skene as procurator for the pannalls, took in«
strumeuts." The rccoi-d dues not say that puj
answer was made to this challenge ; nor n «
any notice taken of it in the doom which pasaed
on the verdict. Let me mention too, tuat ^
an advanced period even of tlie present cen-
tury, a verdict seems to have been sustained bv
^pem « Proeeu of Err9r*
tipoo wbicb Mr* Tbarnas 8kene as procurator
fiirlhemiDnaJU took infitniintniU, to which in-
uruiiient ihc tfaidsi (innnulls .idbenfAiid pro^sls
Ibr reoieiil of law e, and ilmt this thcf protesta-
tion migliL be iiiiertio tbebookee of adjourn ul I.
A. D. 168I.
P<»j
the Lords, notwitbstaudm^ an irregpiUrity of
thitittoft, t allude to the sHs^iensJon, pttrsued
. bv GubricI Cnniiin^hamf of a capital sentence
I of the regahiy court ofGIasqpow Aagust 17^0,
»ne of this m4n*8 allegations wai^ (but it was
mentioned ta passing oohs and wan not insisliK]
on as a reason of AUS|>cn9ion,) that^ fmi 'm\^ made
up their ferdWt, the jury separated fur the
ni^rbtt and next duy rctnrncu it into court ;
aud that aAer a ha*ity and not very audible
reailing- (as was said) they reinclosed by order
of the jud^e, Mr. Orr, and a^ain found a ver-
diet, to tlie same or nearly tlic same purpose.
On ih rth of November 17:30, *' the said Tho-
inai Orr being called to the bar, the court took
notice, that he bad tailed tnuch in his duty, in
auppreiiiinfr <>r refusinjf to ally w the first ver-
dict returned a|;aifiRt the said Gabriel Cunning^-
hani to be openly read in iMJurt, tvliich was
the pannefs rijjht» and Uie right of every sub-
ject ; and Uiat he pronounced sentence of death
a(ratnst Cunuinkrbain upon the tccond verdict ^
although the tacts libelled were ibund con-
junctly relevant, and that the jury had found
one ot these facts not pmven ^ therefore the
liorrls K-eoranocnded to the lord justice clerk
lo rebuke the %iin\ Thuu^as Oi r for the^e pro*
r '1- s, nnd he was accordin'^ly rebuked ta
i>ri," Sec. Yet the lx»rds hwd previously
fyi- I •' ■;; verdict as warnuil i«»r sentence
of ( 'ioo. Notwitli8randJni( this pie-
cedt :.il cannot help entertiiioini^ an oni-
bion, that where the final and urdy venlict
which passes ou record is prooouriced after
rc-eniry into court, the regular cou^iefjiience is
the lull uhiM>lritor of the panneli as fordo in^
frinjjrmcnt of the %iatutti 1587.
** It is true, tluit In n-poriioK the sftid case of
ITur , Ifyrd Fountain hall seems inclined
to I .. an thii bend, according as the
mmuK 1ju» e or have not disperjted, at the close
of their first siitiuj?. Liird Royston too, f «•
presses h': . ' . tij^t to Uie same elFect ;
and noil* I also, of the authority
ofatlean^ ,. , where this doctrine
seems to be r I 1 v dehvered, 1 allude
In tl»f> trial ot L...... . -r Cuiuiai|<hatn for fire-
luly 30lIi, 1677, where the iiilerlocutor
"l<>n>: '^ 'I'll* L'lrdM, Sec. having" con-
sul' rptviroed upon the
iao tj that the ^rne is
t)Ot cWikf in sua iar m liiey iind him g'uilty of
the pfe*tifU(thort'«, and nave not fund him
guilty of wiM I »fme to the
dtttay and ih the same to
them; and i vi taict was tint
aflfircd, at| th* tmt pnsent, some
of thcu) haf n I Ml d(»i.|o?«iii^ i^oue
outoftoMu, iiavirt\f thereafter
pust before tin > i:a.iit' n» tit all pre5*ent at the
^nmt> 1T1 of the rcrdjct^ * sa thai tliure has
YUL. XL
\
Mr. PringU also allcadged that the rertUct L
did bear them ^lilty but not of error^ and^j
therfor the justice's' ronhi not proc4^(fil tft*\
sentancr ajfainest them upon that rerdicl. Th«
loi'ds justice clerk and cooitnissioners of justt-
* hein 0€Ca<>ion for the assizers to meet ami-
* speak wkh the persewars and defenders, f*r j
* some persons from them, doe thei^tbre find 1
* that they cannot a^in inclose the assiJu: i* I
hut considering the venUct as it stands, with <
the peliiion t^rven tn be the pannel o^ering' him-
self to banishment, they therefore, by the
mouth of Adam Auld, &c* Dempster of court,
decerned and^ adjudy^e^l the said *^ r
Cuuniug^ham to be banished,** &e. 1> ,
for my own part, I find great di^culiy ut 1 e*
concihn^ a rcincloaore of the ass^i^e, in anj
case, wilh I he injunction of the slat* 15B7,
c. 92, which does not dikting^uish b£tweeo com-
munication ivith thi( judi^es, and vvith others.
And especially directs the assize, if they hare
any duubt of which they wuuld be resolved* io
propose it openly, before inclosing or r«lilovin^ j
forth of jiid^mcot ; and forbids them to be j
removed from their state of custody, till they
be finally agreed on their answer. [** It is sta-
tute antf ordained, that bow sDone the hnill
Dersute, defenses, and answers thereto, ar fuUjf
heard he the assize, gif ony of the saids kssh*
sowrea hes ony doubt quhairof they wald he
resolvcj, that they propone the same openly^
in presence of the parties, in faceof the judg«-
tncnt before they passe out tlienisclves, atid
immediately at^er that the said assise hes
clio&L'U tlieir chanodlit, the clerk of justicinrj
sail inclose the said assize them aikme, or in
an house he themselves, and suffer n a pnrsoa
to be preaient with them, or repaiie them in
ony waies, naiher clcik uor uthers, under pre-
tense of furder inlbrmaliun, resolving^ of ony
doubt, or i>ny uther cuUouv, or occasion
c|uhatsumevc/; bnt that the said house he
balden fast, and tia man present therein but
tile said asbisoures, and that they be tioi snf *
fei-cd to come out of the said bou^e, for
ouhsitsuaiever cause, or to continue thegivinjf off
their sen tine e to another time ; but that they
he inclosed as said is, * unto the time they ho
* tnlty agrteed,' and return their answer t>e the
mouth of the said chancel lar to the judg-e/*)
Whereas, if they he rctnclose*t, their tinal an<
sner is not given until after the du^^dution of
their sitting', and a conference with the court
concerning their deci^iou. ami tuuU r the mtlu-
ence of the seniimeais, in and per-
haps censures, which have ! wi out Ott
that occasion. It ii true, Uim coult-reuce takee
plm-e under the public eye* ; but then, it fot
certain has relation tti the trial, which may not
always he theciiKe as to intercourse viith ih#
jury while iucloiftd t and jf it wer« no more*
than this, it is an objt^tion, acoonJini^ to tho
spirit of the statute J5H7, that the assjite are
vvitiu^i»es of the reception, whether favourable ^
or otherwiM% which lh<>ir verdict meet* Witl^
I rum the audicAcc, and the cuui L'*
u
»]
39 CHARLES II. Proeeefrngi agam^ Aka. BUAr and others, f 100
ciary, be the mouth, of James Henrvson, macer
of c«)urt, deceraecl and afljud^ed the saids
Alexander Blair, Jamei Baiihe, and James
Gray, of Wariesloun (as beinff teund guilty by
aoc assyse of error) to have roriault ainmitted
and tint all ther cattell and other moveables to
be inbrotight to the king's tiae, and to be
earyed to |irison within the Tolbuikfa of £din-
burgh, therin to remaine for the space of anc
year and day, and till they be liberal by tlie
juaticee order, and that in alityme hcrefter,they
bnvc tint the bcnefitt of the lawe, and of the
land, and hare incurred the paine of infamie,
and shall never be heard as iritnes in probation,
or iu acquytance (or purgation) nor to make
«ne oath lirfore ane judge, nor in any other
kind of Blatter, vrhioh was pronunced fur
4ooiu.
AuguttBih, 1681.
Captain John Binning, vintner, Alexander
Both \i ell, of Glencorss, and Mr. Andrew
Trmple, of Revilrijif, who wer found guilty by
ane assyse of wmfnU error, and imprisoned
within the Tolbiiitii of Edinburgh, and the
eentancc and doom against them continued till
this day, being sett at libertie by thelonls of
his majcstie's privie councill, the lords justice
dork, and commissionera of justiciary, did
continue to pronounce sentance againest them
till tlie councill should giveonler thcranent
Wridrow.aftor mentioning the hard measures
whirh wrn; received by David White and 46
ftUiLTH of Ijtuierkshire, whose names were in -
fcirtvd ill the I'roclamation of October 8, 1681,
(of wImhii he says, <' these had nrobation led
•{(ninNi tlicm in nivsence, and all that is proven
auiiiiiNt most of them is Converse with Kebels,
%» lien tliiry were going up and down tliat shire,
and lying in camp there, in which the whole
•hire \vas necessarily at that time involved ;
and tliey are all forfeited in common form, and
ordt;nMl to bo executed as traitors, when they
shall bo apprehended,' ) proceeils thus :
** A few otiiers are brought off by the ver-
dict of the assize, as not having their indict-
nieut proven against them; indeed the pro-
bation against them who are forfeited is abun-
dnntly lame ; Init, it seems, the advocate would
hiive all, who did not resign their lands, to be
conchulcfl under the same condemnation, and
threatiicd the people on tlie assize, with a pro-
ces of error ; and I find, August 3, a process of
•rror raised against those who had been upon
tlie nfisize in March la^st, and had liberate some
df ^e heretors of the shire of Lanerk, notour-
iv known to have been at BoUiwel -bridge.
There are in the Itecords verv long and learned
debates, by the lawyers, in (fefence of the as-
sizers. I'he matter is very intricate, and turns
upon quisquoiis points. At length all the as-
sizers except three come off one way or
other. iSome of them decline their de-
tviices, and come in the king's, mercy, the
ftdrocate deserts the di«t against oUmts. Tii«
tliree whom he insists against, ore Alex-
ander Gray and James Baillie, meroliants ia
fidinburgh, and James Gray of Warristouo.
The court decern them to have amitted all their
chattels and other moveoj^es, to his mi^eaty's
use, and to ly in prison a year's time, liiis
was done in terrorem, and to fright all others,
who should be afterwards on the assizes of
persecuted people, heartily to fall in with the
measures or tlie managers."
Of this proceeding Fountainhall writes thus:
**Junel6. Atprivyoouncil,apreoo^tionwa§
taken for prepann^ a dittay by an assize of enor
against James Baird younger of SaughtonhalU
Mr. Andrew Temple of Ravilridge, Dundass of
Jervieston, James Baillie, Thomas NoUe, and
Robert liSaudibinds, merchants; Robert Elliot,
Hugh Johnston, John Binny, Alexander Blair,
and others ; the assizers, who had on the llith
of March last cleansed Somervile of Urat, and
sundry other heritors, who were pannellcNl for
being at Bothwel bridee, though there was
clear probation against Uiem. 1 he 15 assisen
were called in one by one before the coundli
and interrogate to declare Hrat not upon oath,
which is a new method,) wnether they voted
Ales and condemns, or cleanses and assoilzies ;
(for it was not marked in the verdict how everj
particular man voted, as should have been done
by the regulations of the justice court, and ni<-
ti'lied by the 16th act p. 167S). Some four
of them had found Urat, &c. guilty, which
they declared, and so were freed: Others
craved pardon for their deansing him, aad
came in the king's will and mercy: Some
said, they did not remember how they voted t
Others more stoutly adhered to their verdict
abtohitor, and that in so doing they had served
both their light and conscience. The couneQ
remitted them to the criminal court, to be pan-
nellcd there on the 63d act pari. 1475, ^ tan-
* quam temere jurantes supor assisam,' and to
be judged by a great assize of S5 noble persona
id esf, gentlemen at least. The libel uses to
be in Latin, and under the quarter seal. This
was a strange trial, contrary to the natore of
all other precognitions taken at privy oonncil,
where they were ever designed in the pannel'a
favours for mitigation, and never to his preju-
dice, as here.
** There was never any of these assizes of
error that ever took, effect before this, in Soot-
land : But see one learnedly debate in Deoem*
ber 1635, p. 318, of ray Cnm. Collections.
«* On tlie 25th of July 1681, the libel agamat
them was sustained as relevant by the crim.
judges, and after much difficulty was found
proven by the assize of 25, (though ther liod
packed them, making the m^or part of theim
officers in the forces, and other dependera^
against seven of them, (the rest having come in
thekini^'s will,) who ad lerrorem of oSienwefm
imprisoned, fincd^ and declared infamous on
the said old act in anno 1475 ; though geno-
rally this sentence did not beget Uwn anj ra».
praach."
mpm « PraeuB a/ Err§r.
** Jftnii^ ir, 1685i Jiiini^s EaiUk and Mine
ef the assizers, wfto in 10^1 v?erc conTicteci tt«
guthv of givtner an rrroneous f erdici in Ho-
ilMrrile of Ur , h&mg been sei ai li*
bertv iipoa bo i 1 1 exjininitied to pruon,
tiU tliey ahouifi [my ihKir (incs,^*
A. D, 1681,
The Case which FuuntiLluhall menliotis to
have occurreil iti 163.^, is in the Records of
1 ustidar^ , as fu) 1 a w« :
CvJUA JusTicuiifE, 8. D, N. Tiegis tentaia nre-
I lorio de Etlmburgh, tecundo DfH?om6ri5^
Anuo d'ni I635t [wr magVos Alexander
Collide cU acohatn BoberUiUD, Juitkliuios
Diajititaios.
Jntrmi*
Mkt under Iriiin^^ of LetittlA,
A' U\k,
J he,
W ithyn,
il 4 fVtter-neir,
C. ■■■ - '-ilie,
J-: le,
Mr. Math(m Lummisdtn,
Asaysoffv Ferscwit for Error*
Ditaitiit of ye error comroittit f>e ihRm« in
<tHe porlialt and if illfull claugein^ and acftuit-
Irnj^ ol" Jameii Qordttun aon* to Oeorg;* Gor-
flotm of Logyaltoan of resettling and intercora'
fnf»nm«' of and with Alex. Leilh and Natha-
p . 1 .'oun rebcUfs and fuptmes for dyo*i
, .chip* rcof« thiftis and oppre««rHmes
i^mDJtmi Bfmm ye Laird of Frcndraiicht and
' Ms t^MMIllS SfieMt in ye taid Janir^ Goi-
I pmitj tflit And smime vpone bi^
a^ys^ x^ _^ ,„.. . a^ tlmftif>of ye cryine fbirsnud.
I iVsewarr-Sir Tliomas Hope of Cralgball,
I kttif kl barniufilf his Mti^ues iduoc^t for his
I hieoet iotrifs.
• Pro/oftt<tfr» ^ ''If, Jamea Bain)
Bflr. Tliomaa N < r Mr, John Nis-
bit Mr. WiMJam l'oii>e«) aauoeates.
The fenoom vpone fMnoal naktt instrumen-
lli ol yair Hktrit ftnd pm^stai for yair aaaikNi-
«ds relet t
ily Lord Aduoeat prodocel ano Wtrrand
of ye lofdia ofoeGrail eMttmall of y« do if the
fyH August iasi 1635 for parsute of yeiitui-
Dol for the error abotic; wriiciu Uolmiroff ibe
tciiiior folio wis ^c. togiild«r wMi tlie tmut'
mUis Act* dniiit ye sasl day of ye said mofieth
4f Aofilit t6S5.
IMniteraiy lord idtiocat produoet ye dit*
tftd didairat ikat be had gtrin aae )7op|ne
'of to Mr. John Niabet f|uiba was aduoeat for
I Gordmm in } e iwai urooet Olf ye nii-
Mm tiittav tbe iaiiior tbUowii^<»-^« AlesauiiW
itiviiif MLealyfli Q^etgia Debpiter is H«ir»
9
loim A1e3cander Banennan frf FJmfc JoUn»
r*sfiivie of Gbssacbe ^V ' uloufi of ,
Schcat by n Alexander Abt i IW^rktu-
boiif Ueilof AbercroniT
aotier Keith of l>uj
TuUlefbotidio Geon^e tiomovni (n
Mr. Mathow Luu\i6deii burge» of
James Heatone buries yair" Charh^ ..^,..4
Letsler barges ynrr J olio Caddell seruilor
to RallnmlaUoch' and Ctcort^^ Rriiit* iuirii^
fr\ zeand ilk nne ^ uod
n* H^amekilt as br i-* of
parhamcnt and inviolable praciit^uc ot ibis king-«
dobif? And jipccittiiie be ane art maid in tb^-
reg'neofoitr souerane lordis prcdec^^s&or king^
Jatopji ihe ibrid of guid mt^mi^rif* It in statute
HP t tbatgil ot i'ctii'
< n^ the AS |'«?r-
^< liL tharn* Ik in, wil-
f fiarliahtie Tli put
iuyti Ltjci of auesssyir of taenti« niea.
Aod being ooayi^ed y*of sal ' hod
acpoirding to the lawis of y^ ki *
the suid Miil r»1 pHrliament at letj t^i
Nocht withstanding qVof it is ot . .i ill
ze and itk aoe of zow bt?ing in ane rourt of
juaticiarie bablen within ibe tulhutb ot Edin-
burgh f pone the fvti day of August Isfit by
post in Ibis instant zetr of Gt»d J^m^vi, c.
tbreiiie fyve seiris he Bit. Alexander Cnluile of
Blair his ma'ties justice depute cbotsei ng res-
siiuit sHome and admiHit rponc the as^ysc of
James Oordoun sone to George Gordonn of
Logyaltonn quba wasbrocbt filnb of waird and
that day presentid vpone pannell hetbir th#
^id justice depute as ana noitoar nialdactour
and treapassonr indyttit and accusit be dittay
ui the crymes dter spe'it at lenth mentiooet y •
infill Tiz. flbr reoepting stod intercomonitig of
anc Alexander Leitb and Nathaniel 1 Gordouii,
baith rebelled and fugitiues for thifl alauohter
and burning of the lainl of Frendrauchts coirnetf
ami vthcris hearschips and opprcftstones com-
mittit againes tbe said lainl of Freodraucht
and bis tcnocnte^ speriallie for recepting of ib«
said Alexander Lcith and Nalhaniell Gordoua
rebelles tbirauda in ye munetb of Mercbe laai
W&6 zeires And intercomrooning ivitb tbams
within the said James Gordoun bis duelling
boim^ in Knoklvttb at ye leist within bia cksio
y*of As also tor ioterconioniog and kcjping
c!Ofnpany about aiich dayis y%ltir ^viih the 6aia
Nathonieh Gordoun and Akxnndrr Leitli
ivitbtbe diidlinsT house of Mohcrt LolUtje in
f Iss4ie Walii* quhair ye i»aid Jar*
and the Katdis rebel hs soup pnl <
ny'C and coinmonod and eoiiif^rr
tbar splice of tbrt!c houroi
tbmy went to year Iteddis
Gordoun and thay lay altugidder
mer Ihat ny't the «skl NuttianuM Goitloun
Altasuder iJeithr being in one betl and thf said
Jantsp Gordoun wiUi urn? tii^ben llcmpiii^frof
fiiitebnie ir^ v htnl ond that fxpres
agniois the n < 1 1 1 the cunLrair sprciath^
the 97 oetot tlt^" 't vmt |]arbaujL*nt of our !(oiie*
rnn^ lords darreal graudfV king Jaiii«« tliv
,. . 4.ori{i]l||1
:hat
. bo
I L>elbir
nt JfinK-a>
111 Ltue cbal-
TO3]
3S CHARLES IL Praceedif^9 M^mnH Alex. Bhtrani oiher$.
^ftof etcmall mernorie (jiihiilrby it istxpreslic
prov^'tlit statute ami onlnmit that na oiauer of
pf rvme wtifnUie or wiltluglie recejit supplie
maittefiie lietend or do Fauor to oiiy of bii ma-
jesties rebellts beinff tit ibe home wiibin yair
hoQse laudis bouiuTes ur bailzeries vnder the
jKuie of tiaiih to be intiicted vpone the t.>ontia-
Tcncr with cvrifisaiitoun of his haill liioferble
jTi'idis and iijraiiss the teonor of bis nm^ties
jiniclumationesmnid and publelst mye cotitrair
111 ya fiionfth of Januarla^tat ye mercat croeea
4jf Abci'df ne Bantf and ¥*thevis mercat croces
?«f the north purts of yb kio^ome diMhar|reing
aJI rpoepting' aiitl intercoutmnaiii^ with ye saidi^
rebftlis r nder the pains foirsaidis »peU in ye
ftRid act of parliament As the Mid dituiv pro-
ducet he air Thomas Hoipof Crai|fhall knyt
Wrrm«t advocat to otir souorane loni as per-
se war y'of for bin hienes iotreis uganist the
«nid Jamen Giirck»tiQ than iod} tet and accnset
j«rdit'iaUic y'rby ot' ye crj-mes forsaidis y'in
ountentt in p^us of ye said justice ile[>ute tban
•itand in judgfinetit in ye selff profMJrtia Et\cr
acfU!»atioti of ^e quiiilk James (iortiouti be ver-
teur of ye said ditUy <il ye cryiues foirsaidis
•|>e^il y'lntill it was alle^t be Mr. Jtihne Nisbett
iMhioca* as prelo^- for the tiaid James Gordoun
thai y e dittay in that p*Mnt y*of atient intercom-
momn^ was nawayis relefant be inferring ca-
pitall puneichmeot y^upoo beeaus the said
Uittay was not:ht fouDdit %poue the act of par-
lianteni nor uponc the commoun law Nnther
was it releraotlie subsumet y'intill that wit-
tini^'lie or withtiglie the pannetl intereomiuoned
iknd that ane occasionall run countering' could
nochl iiupotrt ane acccssioun to yair rebellioim
quhajr p'teis ar sarpryset with y* earning to
yair awm bouss or to other places qubair they
are And cannocht desinfrauge thatnesclffis of
yair compunte for feir of irritatmg^ of tbame as
mne in««noe of Walter Hay and J ante Grant
And in the present caice as ye pannell hes de-
pooK That he bad bene iii Hobcrt CoUenes
lion^ in Hassiewaltis with Hobert Forbes bro-
ther to the persone of Aachterles Robert
Bemptter of CiucbDie and Robert Cotlii^one
burgfs of Abenlene. All vnsuspect and honest
men half ane day befoir the relielli« ciiming to
ye house quhtik coming ol^ye reb<>!|iis to ye said
liousc wa« at nyne ho ores* of the nv*t ijuhan
the pannell could nocht gae elis quliair being
benichtted. And the rebellis for yair securitie
b«iHog srhote and tnaid taat ye durris of ye
flaid house And as to thai ^vord * coofereoce'
mentionc't in ye dittny Tl»e samen is nocht re-
]#vtint to impoirt JntcrcouimuDinr^ rales It
iMd b^'nr subsumet y'in that ye paanell horl
tfdttrt Willi ye rdbelUs cottcemiDg y* rebellion
th^ir relH'ltioiui practizes and desi^i^s off pur-»
pois to Inn
act of i>
<#ptti\cr
an I'
•lUEtUuUU^
tm Num.
I) iuid favour tha me conform to ye
quhtlk probibdUis all re-
: unA m&ntening of rebellis
I or Alul the law
()te« cum banuitig
^i| I Uuiiti^ji r Phar, quest.
17 ^« L4Uit ' H «t tractatiti
mtm rtJittUibus auAt v«rha tr i^ututaUiia . * * Aitd
y'foir caoiKfcht be vuh««met releianMie »pf»1
ane at ye maistluaficcaisioiiall fortoite mirpry
qubair mto anitueir being maid be his ro^i
teis aduocat as perse war of ye dittay A\
namelie to that pairt of ye said alledg^ii
proponet agiunis the secund pairt y*of Th(
the ^amyn tuchl to be repellit in respect of y
dittay quiiilk is foondit upiiie the aetes of jMif-
liament and nocht upon tlie commoun law* aad
ye particuler alleijatitjoes adducet imi of ys
mw and doctors hes only place in bnimitiji toi
ane periicular cryme committit agantst »W
subiect But nocht in tliame quha or biiDiiil
and proscryret for ane publictrcbellionn as th'
is And the occultatiouD of yc deiiouuctil
q«ibilk is vrjjet in the deliffnce is uuly in frag-
ranti crimine and q*r ye committer of tbi
cr\ mes is persewit hett fute in qiibilk CMioa
(^cruliutioun hes some respect hot nocht ryer-
wayis x^nd lor the poynt of knowledge in aoe
iJuLlict rebellioun the notoritie is sufficieni
bot to mak the patinell iucxcuscable his nieit-
ting- with the rebellis at ye tinu^ q^tenit in the
dittay As in M*che 1635 efiir publict inhi-
hitioun maid be bis roa^ ties Trez in Jdmiarof
befoir And the excuse of chance m meiitiiig or
of ye inteotioun aud purpose is frit 6k>us Wo€
than everie man sould be excuset vpone his
intentiuiin And the crynie of recept and inters
commoning (quhitk in so publiet a retielliouo is i
equall to ye crvme ikielf ) sould be vn*punet8ifl
but the panneli catio'icht be hard to preteii^|
naiher accidental] meittinfif nor excuse of tutiat«*
tioun Becaus at the first tyme thay auM
to his awin bouse and in taikin of y' familia-
ritie tbay socht ane lane for him of ane pif-
tolet and within aucht uays y Vfler, thay mett
at tlie house of HassiewalUs witliin ane mylt
to his awin house q'upotie inbtrumentis wis
tan e be his ma*ies ad?ocat that it was erantift
be the pannell that day in judgment that y«
said house of Hassiewtiliiii was within aoe myle
to his awin house quhilk raudtn i^ the panneU
to be altogidder inexcusable speciallie iu re^
Bpect of ye actis in ye parliamentis 1^67
1681 1592 quhilk commandis all sublectis
rnder the pane of daith to follow and reveill re-
bellis with hoy and cry And to have na cou<
ference with thame without command of yi
s'reflTof the tcbyre.
To the quhilk jioynt of my lord advo
ansV concerning his Tps distioctioun de bon<
nisii. It wai y*efter doplyit be the pann^
and be Mr. Jon. Nisl^t his prelo'r That y
samyn is altogidder without warrand in law
quhilk speak is indi^nctlie et fipeciHce etiam
tie bannitis et pri>f^cripti« locis supra citalis
Fanler it was duply it that occult alia being es*
senti^il in the cryme of recept quhairby recept
is only defy net in the law most be lybellit non
solum in fragranti crimine Bot in all dittay is
cijncluding tne receptm^ and puneiscbinenl
y'of ft was also duplyit b«t ye said James
Gordoun and his prelo^r that the notorietie of
yc rebellis reMhoiin and prose riptioun cai
nfK'hi be obtrudit at leist sa ag^^vatlie tlie sai
ailegit ciyms of reosptiog betng sa s«hun«'
upm a Praetn of Errcr*
A.D. l6fii*
flOff
dYer y* pTOtcriptiotiD And last it wm duptyit ; mainslaf tdaocat be the maothetnd judtctmll^
Ui«t ye fortune raLic»»tiiit*r of Telieilis most
|iur^e mtercf>nitiKiiUn|r or iflitet^ull he irbi<
tr&rie t«i mak ye km^i^ li>)all Hntiipclis ijiter-
C4»mti]0DeriB as is in^taticefl ol lufbir be Walter
Hay And sp*?ciallie in tliis caice qr* ye tor-
tuitnes jLtid occiilf-mall uu'ttin;^ %«itti the snidia
itsbeltis h nocht only a%erred be the |»ant)ell btit
may be ckirml be thre or foutv unsuMpect gen-
ttlmen ijubilkif uar preiicnt with the pantidt
und violentlie detenit and keipit in the-liQtiie
with him.
£<\er ihe proponcin^ of the qnhilkls alledge-
mtioea ansVis and duply is aboiie writtin The
justice be! Tig' ryplie ;.Dd sit length advyss^t
y'with be his mteHiHjiiitor gevin and pro-
fiuQcet y*antdl repellit the toirsaid alledge-
arteea and iknd and dechiiret That ye said
James Gordaun than vpoue pannell aucht ta
pa« to Ihe knawkdge of anc assyse fur inter*
commaning and remittit that pH of ye al-
ledgeance wittin^lie or udlluglie to w cog-
nocest vpone be ye said assyse As the pro*
cets with the intcHo*r ahoue written pronuncet
y'io al lenlh proportts.
Ltkiis etter ye proounceing of ye quhtik
if]terk>'r be the justice ze and tlk ane of
zow being^ callii vponc resaauit aiiome and
admittii ?pone ye said James Gordoun
Ilia asiyfce aa said is for tryell of his guittte*
nea of ye cry roe alioiie* writtin ape'il in
bis dittay And his mai'tcii aduocat askand
inslriinientia y'upoun and for veri6cattoiin
and cleiring to zow of the pannelles guiltines
of ye suid dittay in sua far as did consist in
facto tjrVpone ze war only to cognosce pro-
duce! judicial lie the said James Gordotin than
i^pftne panuell his I>epositioun quhilk was than
judicallie rctd in soV pn's and audience sab-
scry nit with his hand As also repeittit vnto
aow the notorietie of ye rebcJles rebellioun
The hoirniogis and Tres of intercom moaing vset
and execute in Jaouar last Efter ye q'lk
poblicatioun and inhibitionn yHn eirpremit
I be pannell tneti iwyce with the rebellis s'ranea
in nit awia house And within aucht dayls
Vcfter within ye house of Robert Collie in
HtHiewfllhs quhilk is only ane myle from
the pannellia a win house cotife&sit be him ju-
diciailie And thnt he aoupet and co^lerrit
with thame thrt hoVe y^ett^r and Jay with
tlianiie in ane chalmer alt that nicht his house
being within ane tnyle yairof And in respect
ol'soa cl«rir and manifest probiitioun hii»tnaiesteis
aduocat than protesUt tor wiltuH ern»r ai^uines
sow in caice ze sould acquit or ctancfe the
itid Jamrs Gordoun of ye crynie foirsaid con-
tetiit in his dittay And trew itia that ze
all being yairetiir'remoyet ftirlh of court and
ioicloaet within ye assize house of ye liaid tol-
Nithe and haiftng coosultit and reasonet
vpou (ha fK»yii1ea of dittay aboue writtiil re-
firrrit to zor kaaw ledge and del'^rnituaiioun
And re^eniering agane in court ze nocht-
mthatandiiig of ye cleir verificatioiin and pro-
^balUmn of ye said James Gordoun his guittiues
9^ ye cryiaa foii-satd raat and pi^ducet be his
L
declnrutimin of ye said Alest* Irring of I
Lenturk chanctllef eleciit ami chooaen be zokt ]
Tponc the said ;issyse all in ane voice land
prontmcet and declairet wilfalUe be favor par- '
tiallic teroerariouslie and be partiatl meaaei^ I
The said James Gordoun to be cltiane innocenCJ
ami acijuil of int<brconimooiug with the re^f
bell is speci6et in his dittay and depositione^^
wittingiie or willullie at ye tyines nex*ine men-
ttonet yUntill In the doing qnhairof zcand ilk '
ane of'^zow hes commit tit wilful I and nmnife<it
at ye teist temerarious erroV and auch'flfi
and sould he puneist in zur persones and guidi#'
conforms to ye bwis and actis of parliamenC ]
of this kingdome llecaus efler the alteadge^
anoe« olioue wxitrin maid be the said Jaiueg
Gordoun and his said prelo*r and ans'ria
maid y'to be his m.iiesteis aduocat nathing
being referrit to zo^r cognitioun and tryeU
bot allanerlie the panncllia intercom moning
with the rebelJis at ye tyoMs contentt in hia
dittay And ynt p*t of ye alledgeance anenf i
wittingiie or wilhnglie to be also cognoscet
and tryed bt zow Quhilk intercom mooing
with the qnalitie y^of tiz. that ye sarnyn wa^
wittingiie or wilfuUie done was cleirlie provin to
zow be ye pannellis a win depQsitione#i ]
Quhairby he granted and confesset nts inter*
eammonmg with the rebellis at the tymea
q'tenK in his said dtttay and in maner cleirlie «
sett down y*inUll And as for ihe qufllitic «*f |
wittingiie or wilhnglie (}'rof aither of thame
is sufficient of ye law to mfer the puneishment j
abrme writtin* the samyn And speciallie
that member y 'of wittingiie was cleirlie proriii'
baith be the said James Gordoun than im*^
pannelht his depo<rttione$ and als be ye do«^ j
tohetie of ye rehtllioun q*rof yc said AXvai^t I
Leilh and Nathaniel Gordoun war special I ac*
to^ris And they denuncet rebellis and put m
ye hornc in ye moneth of Januar prececding; I
(.iuhairhy they war denuncet at ye m*cat cwc& \
of Aberdenc being ye mercat croce of v€ ]
held bur* of the a'refdorae within ye qnhtlk' I
the said James Gordoun intercommonet w*|
the saidis rebellis And als be the Trez direct i
be the tordis of aecreit euunsall inhiheittinf'
and discharge! ng all hiK maiesteis le^s and sub*
iectis inlercomniune w't tlie saidis rebellit
Quhilkis war deutie execute and publetsi af |
ye said m*cat ci-oce of Aberdene vpone the' j
saxt day of Januar last Quhilkia depo-
sjtiounes Trea of hoirning Prez of intercom-
moning ane executiooes y 'of was producet and
red to zow And quhUkis did evidentlie prove
and cleirlie vcrifie that ye intercommonin^
was wittingiie done in respect that member
of ye dittay wittingiie respectis onlie the
knawlege of yc subiectis coraroittJUjj againist
the lawis ana actis of p'kament be inter*'
oommonin^ iriiB. that they knew of yt rc»
belliouu And that the persones w't qubome
thay intercom mot i«d war rebellis The quhilk
is cleirlie provin fimt be the said James Gor*
doun hi»awindepu«itioun« Nainelie be that arts* i
cle y*of bearand that ye satd James being de» *J
lOT]
33 CHARLES II. Prautdimgi cgaimai Ak». Blair and otiers, [ 108
mandit be ye lordii bis examioAtore quhat
ooDfereoce past betuix bim and ye brokin
men attbat tyrae of y' being in Robert CoJleis
bouse in Hassiewallia He deponeC tbat be bard
thame say tbat tbay bebovet to leave ypooe tbe
laird of Frendraucbt till ye marqueis bame
cuming becaus tbey wald be forced to lea?e
the couDtrey As abo hard Natbauiell say tbat
he bad cbaiset ane of Frendrancbtis men tbat
day tbre myles And tbat all tbat tibay had
tane fra Frendraucbt was spent, and bad nevir
done tbame gmd &c. And als is deirlie provin
be tbe notorietic of ye said rebellioun, and be
tbe Tree of homing and intercommoning pro-
ducet. Qubilkis Sk* tbame selffis ar sufficient
to prove knawledjgfe of tbe rebellioun and of
tbepersones declaired rebellis and of tbe danger
of tbe law be intercommoning with tbame
and as to the vtber member of tbe dittay and
actis of p*liament ar'vpone thesamyn is Ibundit
oubilk beiris wiffuliie, Tbat member (albeit
the said James Gordoun bad bene frie y'of as
he is nocht) coald nocbt baif fred bim Irom
the cryme of intercommoning. The vtber
member of (wiitinglie)qabilk per $eia sufficient
of ye law beinir sa deirlie vehfeid as said is:
And of tbe qubilk poynt of intercommoning
iwittingbe) zethefoimamet persones of assyse
les clauget the said James Gordoun baith wit-
tiuglie and wilfoUie And Eit to convince zou
and ilk ane of you assysors foirsaidis of sa
oppin manifest and inexcusable proceiding
^anis law and justice and of zor solempoe
oatlie gevin be zow at zor ressaueing and sneir-
iiig vpone the said assyse It is certane be
the proces and course vairof, and writtis and
Srobatioun pnNlucet for verificatioun of ye
ittay That the said member (wilfullie) was
also deirlie verifieit to zou and everie ane of
zou assysors foirsaidis ; and tbat in the daoge-
ing of ye said James Gordoun y^of ze nocbt
only bail committed wilfull and manifest error,
bot also to ye great contempt of bis majestie
and of bis nienes royall autboritie hes done
quhat in zou lyis to foster tbe said publiot re-
bellioun in the nortbe, by prodameing libertie
in sa far as in zou lyes to all his maieaCeis sub-
iectis to intercommoun with ye saidis rebelles,
in sua far as be zour said verdite ze baif fund
in eflect all intercommoning with the saidis
rebellis to be lau'll vpone the sole dedaratioun
of ye iutercommoner that the samyn was
nocht done wilfullie but accidentallie, albeit be
the lawis and actis of p'liament, all intercom-
moning with rebelhs (speeiallie be sic aae
oppin rebellioun) is nocht only prohibeit vnder
the pane of death bot also his maiesteis haiU
subieclis ar commandit to follow rebellis and
trato'rc with hoy and cry and to present tbame
to justice And that all his maiesteis subiectis
do thuir vtter dilKgence at the vttermost of
yair power in searching seiking taking and
ai)prchending the rebellis and following of
tbame and to mak intimatioun t» tbe magis-
trattis and to |)erMne8 of power and authoritie
for aDDrehendmg of tbam to be broght lo ju»-
4 iial natM interacNDBMiu wiita the
rebellis vpone ony pretext without tbe
warrand and knawkdse of ye s'reff and judge
of ye contrey sua that aU intercommoning
most be wilfull Qubilk is done aganis the«xpres
ordour prescryuit be ye saidis actis ofo'liameolip
And spedallie aganist ye actis in December
1667 October 1581 and June 1593 quhiDcis
war quotted and alledffit to ye justice and to
zow as assysors and uie samyn deirlie verifeit
to be so be the said James Gordoun his awin
confessioun in so far as in his depositioDea hm
grantis and confesses his intercommoning with
the saidis rebdlis in his awin dose at quhilk
tyme he was obleist to acquent the s'reff or
some judge of thecountrey of yair being im
that part of ye s'refdome Ami as to his in-
tercommouinr witli thame in Uassie-wallia ha
hes deponet That about aucht dayis after hk
mdtting with the saidis rebellis Nathaniell
Gordoun and Alexander Leith with tua fata-
men come to Robert Collds house in Hanie*
wallis the marauds of Huntleyis landia q'r
the said James Gordoun (impannellit) and Hu-
bert Forbes brother toye peraone of Auohterlea
Robert Dempster of Cfuschnie and Robert Coi-
liesone burges off Abirdene war the tyme and
had bene yair half ane day of befbir And that
Nathaniell and Alexander Leitb come to this
house about nyne ho'rs at ny't and that he
(viz. ye deponer) and hiscompanie soapped
witli tliame that ny't and remanet with thamo
about thre ho*r bdbir tbay went to bed And
that tbe conference that past betuix the de«
poner and the brokin men at that tyme wee
that he hard thame say that tbay behoreC to
leave vpone the laird of Frendraucbt till ye
marqueis bame cuming becaus tbay wuld M
forced to leave the cuntry than And that he
bard Nathaniell say that ue had ehaissed ane
of Freudrauditis men that day thre myles and
dl that they had tane firae Frendraucbt wa»
spcndit and had never done thame giiid And
deponet that ye cause qrTore Nathaniell chaaei
Frendrauchts man as he affirmed to ye da-
uoner, was becaus he was the s'reffis spj
Deponet lykwayis that Nathaniell Gordomt
hau tuo lang pislolettis and ane gwn And that
his roan had ane pistolett and yat Alexander
Leith had ane gwn and ane pistolet Deposit
also that the ny't tbay war in Robert CoUiee-
boose the deponer auu Robert Dempster lay m
ane bed and Nathaniell Gordouu and AleOLander
Leith lay m ane vy' bed in the same chdmer
as ye said deposilioun beiris Lyk as ye said.
James Gordoun than vpone pannell gprantit hk.
judgement qV vpone his ma'teis aduocat tnik
instrumentis that ye said house of Haaaie-
walliB was within ane myle to his awin bouae
duhairby it is evident that ye said inleroin»-
moning was wilfullie and in grit contempt of
his ma'teis lawis and au'ctie necaua this waa.
tlie secund tynse of his meitting with thame
efier the first, and was within ane myle to bia.
awin house Sua that he my 't baif retired him-
self to his awin house that ny't and schwuncd
y' coaspania qMk be did nocht hot be the coa-
tcair aoapped with thaiBe and dlir supper eot^
mp4m a PrcuM of Err$r,
A. D. l6at*
[!!•
»
fomd with Uiiffi^ llire hoV And yVAir ky
in atM3 cihuliiK^r wttK thftmequhilk if oU eon-
femi in hin abtnif writtin depcinitiuun Aiitl qV
Bfl il [fTiiv a|»|icir ttui the aII^o maid fur
ye Jiaid /utnex Gordauo titien t I of in-
tMVOI^unociitig will'iiliie wm refumeil he the
JuitilM lo J* ftstyte that can be na cuHoV nor
^feltst to firii sou or anv of Xfiu as tuis^sors of
MfiuNe tmd eool^mpi of his ma'teis autboritie
Becaiis all that was altegii he the paondl and
be Mvr John Nishet hit* preloV was that the
ditiay was nawayis relevant inferriiifi^ capital I
jiwiiebchiiieiit vpotie intercomaiootritr because
II m ttocbt foujidit vpone the act or parliament
moit rpone the commoun law Nather h it re-
JstaotNe mbitiniet y'intiJl that wittiDgUe and
willinglie the panQeU intercom mon^ And
miie occasotiall rancounterin^ ean nocht itn*
poi8t aoe aoceBioun to yair rebeltioaa qu'hao
|i^teis ar surprysed with lb air cuming to yair
awin housii* or to vtber places quhnir tbay ar
and can nocht clisiogadge thumsclHis of yair
eova^nh hr feir or trritatine of Lbame as is
* b^ Walter Hay anil James Grant
And ID v^ present caice as the pannell hea de*
ponettBat he had bene in Robert CoHeis house
in UiBtie-v%allis with Robert Forbei$ brother to
ik0 pcfioue of AuckterTes Aobcrt Dempster of
CiMOhoie and Habert Collif^fone bitrges of
Abirdene all rnsaspect and honest men half
ane day betoir the ret)etliscuTning to the house
<|ubi]k cuiiiiiijBr ^^ y^ rebellis to ye said house
wai^ at uyne ho'r at ni^ht q'n the pannell could
BOcliI goe els^ q'r bemt; benichted And the
ivbeltit l«ry* securitie baiting schota and maid
fittt ye durris of ye said bougie And as to that
woru *■ conference^ mentioned in the dittaj the
lyn is nocht relevant to impoirt intercom-
iog vules it had bene suhsumet y * in that
nell had treittet with the rtWUis con.
\ng y * rebcUioim tbair rehetlious practizes
rnf>' of purpois to help and liuio'r
ine to ye act of p'l*Hment qiibilk
II reception snppUting and man-
i«iung of rebel lis and ^eneraliie all doing of
liuoV And the law jovne? ** conversantes
tractantes euro baunitiM ve prestaotcs
complexe" Pbar. <[uesL >ti. 172. Last
I •* conveniatjo el tractatio cum icheliibus ffunt
» f«rlm frfquetitmioH'* And y* loir can nocht be
LflbAumet rfi^ caist tua
K^kftsiouall HI ite said
^^■■cptioun b«'iri<^ i^ Ka> y ^'i ' !in
^Hpftssnid exceptioun it w ^)tf
^IBld Mr. Jabnne Ni^ibel to liiL im^ i uiuiu b*f
bis .MttieMriH Aduocat Tliat the distinctioun
tnatd be hi^rpi/f ^,.,r...>ti.r w^^ .,ii,»,T,,i4,T. with-
I oat warranilm Uu tUe**et
I SlM^'itHT- rlinrn *!*■ is, loCIS
1^1 iiat OC'
ctii't' i recei»t
qVby i\:
most b'
Lot
h« tilt: 5.*U!i ,Mi, Juhaai; Lliiit Xhti iioloricUL' ul
Itic ccbcUU f^bdlioua aud prgscnptigau (;ouid
nocht be ohtmidit at hist «b ft^fgrnraflie th« it-*
ledpt oryii»# of yair rcceptmg; l^ng' mi sehorti
et^ir yair proscnptioiin And loi^t the fortuit*
rancounler of rebellis moot purge intenooin*
inonini,^ or elUs it sail be arhitrarie to malt th«
kinf^iH loyall tiibiectis intsrconifnoiivTis av wat
instaneetbe Walter Hay And especiallie lA
this caice q^- the fortuittK-s ocddentiuJie of yai^
mdttin^ is noclu ooly Hv^sired be the panneU^
hot micht be cleired be th re or fnire msuspect
gentilmeti quha war psesent with the pannell
and violcntlie keipit and dctettit in the bous*
with him as at lenth is coatent tn the sRl<f
dittay.
Uuhilkis aUedgeanoei gifand the Ktimyn \m^
bene Feleiraot, as thay war nocht t)k as tike
jad^fes in effect hes fund the samyn oochC
releraot In sa far as they repellit the aU
ledg^eance ifi jtir« And referrit the fnict an<f
deid to ssor ci^itioun as assrsors and judg«f
y'to Nather was yair ony thing producci b«
the psDoel tiz. James Gordoun or be bis pro'n
before the sweiring of -zou as assyKors or t^
and befoir yon efter *e %rar sworoe befoir zor
remofeing out of judgement to rerifie thai
poynt that he was compeillt or that y«
durris war 9cbote and made finrt Sec AncI
tbairfoir ze and ilk ane of zou as assysor*
was iu law aath and conscience bund to bav^
judged acoordbg to the d«po0ilii»oea ami
veriticatioiica producet bo bis ma'ties ad«,
uocnt Quhairby the said James Gordoun hia
wilfull intercommomo^ waa aufficientlie w€ji*
feit to zou as saldis nor zit was it ^lossifal^
to ye said James Gordoun than vpone paanfll
or Uh prelo're lo produce ony vertticatioutii
for cleiring of that [M>yot or g^if he hadi
producit ony (quhilk was not done) his I^la'tieci
Aduooatas per«ewiu- wald baif cleired thai thtt;
samyn could nochl had verifeil that j>oynt i^
that ye said James Gordoun wa« furcel o^
compellit becaas it is (^ranted in ye said J
Gordouu's de|>osiiiones that yair wat fviti
by the g^idoiau of ye house and histerr^
thre vtberis persones viz H^jbert Forbes bro^ij
ther to ye persooe of Auchterlcs Robert J
ter of Cuschnie and Robert CoUusone _.
Aberdene Q,uba being ane number of persones
about six or sevin, or mais accainlln^ t# ye
nuoibcr of the servamlis of ye houM the naiiK''
berqVof was wdll knwvria lOfxiirtol'jcou that*
war vpoce the said aasyse eovild nocht hail*
betie forced be ye saides ttia rsbeilis <:>r gijti
tbay bad forced tbame i» eoliMttinjBr o^ Y^ J
durris and keipmi^ the kreto y'awin handie>y
The said James Goidoun and remanent per*
sooM beings with him warobleist in law as Ipui4^^
and fakbrull tfubwotis te hatf aent out ana (
be tpe privat way or wieddw and le hi
y^by f^evm adrerteismeut to tho lycntlewieii
ve cuntrv neirest abc»u« olT yo taid<l
Ik my't haif henet^iHalie dotift'
.;,^ to bed nnd mmr ejwjdic eftir
^vttr tn yn ' ' y*in
V war buiJ tifUr
rcbellis yuir nvrav , y^
\ : , fui tb of ye tM hou A*
nn
35 CHARLES IL Pr&teeiing$ against Alex. Blair and others,
t«rTed tiie way quhair tbay weol and to hnre
raised the counirey and tjr> have follow it thame
be boy and cry» quhilk thay did nocht liot its
is granted be ye said James Gorfjoon Id liiii
depoaitiouD thai he tuik na heid of ^air pairt-
me or away paflsiog In the rooirDini^ Be the
quoilk dednctioun circumsiancei deposuionea
sndftfaeriB befoir deducet it was maist cleir
«nd manifest to zou the saidU persones ressauit
auome and admittit ifioae the said James Gor-
douB his iiitercummonin^ aboue written wilh
tlte saidts rebel lis was wrifuliie done be him
expres aganis the (awis and actis ol pMiament
and prt)cramationes publeist in the cootrarr
And thairfoir yefoiroamet persones suoroeand
admlttit ?poiie his asayse tii sa tar as ze baif
clanget and acquit ye said James Gurdoim of
yejiaid poynt of wiUViIJ tntercominotiiD^ bes
OOeht only incnrrit u itfull and periiirious error
affani!»t the Ucbt of zo'r awin consciences bot
ft wo hes com mitt it aue grit contempt ngiinist
I his nia*l^e and his bienes au^ctie And y 'throw
hes incorrit the pane and puoeisbmeDt sfie'it
and set doun in tbe autd law is and actis of
p^Iiament of y is kingdome Qubilk auch*t and
60u1d be execute aguuist zou and ilk ane of zou
in maiat exempkre maner to the terror of
Ytbcris.
Thaireftir my lord Aduocat producet an Act
©f yeLoTtlis of secreit connsalJ of the daitthe
first of December W^5 no'iatiojjf and appoyol-
mg John eric of Tr'quair Archibahl lord of
Lome Williame tord Alexander and sir John
Hay kny't clerk of reg^s^er or ony tua of
Ihame to be assessore to his maiesteis justice
in this proces of eiTo'r p'sewit a^nis ye per*
sone^ on panoel at ye instance nf his raa'ties
aduocatflbr tbe erro'r committit be thame in ye
temerarious and wiJfull clangeing of James
Oordoun of tnterconmioning' with the rebel I is
q^tenit in his dittay Lyk as tbe saidis John
erle of Traqaair Archibald lord Lome and
Wm. lord Alexander being judiciallie present
accfptit ye said charge as assessors vpon
tbsune to his matestels justice in ye niatter
alioue writttn QVrpone my lord aduocftt askit
iastrumentis.
Tbe said Mr. Thomas Nlcolsond adwieat as
aoe of ye prelo'rs for ye pa on el cotnpeml also
for Alexander Key't of Dnffiis as proV for
him and orotestit yat ho my*i be hard lo pro-
pone bis lau'U defence vpone the order [ire*
scrvuetbe tlieactof pNiament vii. Tliat ve
said Alexander KeyH of DnfTus can nocht (for
his nocht eompeirance Ibts day w4 ye rest of
ye i>eriQlies of %mym) he laulie domet nor
adiildji>^t to be put to ye borne hi rt'Sjiect he
was niK'bt charget nor ceittetl to com|>eir Ijefinr
yc lor^is of secreit couiuuiU as ye rt^t of ye
asij 6or cumfieirand war diet and rharget,
Tlmird^ir the panne) and ye prelo^rs befoir
' «l betoir
no
kd
yair
drij^r
rony 1
' proc^
better
this cans that ye aii)di!» preJo'rs for
jiaratiouu
' '^ ^bttay [iraducet ami red may baii^yo ooppie
to anH r to ye poyntm
y'of atid ane tyme afTixt to thame to
y'to My lord Aduocal decJairet that in
of ye productioun uf ye dittay and publt^
rcimn!,' yairof in judgement in sudieiiceof m
lord justice and j>ersonea vpnoe pan n el ani
that v*eftirthe pauuelis preUVrs schwnc» pre-
sent disputatioun and craves line c«»p|)ie of y<
dittay My lord Aduocat y'loir and to y
effect the preloVs tor the panoel may be pre
pareti to aosweir without farder delay nor ibn
ciuhilk ye justice sail be pleiset to L^mnf r
tua me at this tyme produces th
crimioall q*r in James Gorduun is i / t
to^ddcr with the haill urittift qVvpone tbi
fTttoinall dittay is foundit and .vpet iulhe lli
said James Gordoun bis depositiooea Tli
tua l*rez of hoimeng qr'by he was dcnuiiei
rebel I Tlie Trez of mtercomruoning qr'by a
ye subiects war inbibeit to iniercomiuoiin will
the rebelUs And y'ut repeittis the actis
pMiament Ja. the (yt^ parbamento 7« cap, 9r,
Jacobi sexti: par. l, cap, 21. And par. 19|]
cap. 144, in anno l/iOi ^Quliilk war tin
groundis qr' Tpoun James Gordoun was pan
nellit and accuset and nocht w't standin;
y'of clenget And y'foir desyrct that my loi
.justice wald oyer grant present proces or
he gi-ant or int^lyne to on^ continuatiami t1
it may be with this certiticatioun that yai sail
baif iia farder delay Tpone Che sight of j%
writtis now produced and rejKittted. ^
Thejustice contioewis this dyet to this da)
aucht dayis qlk is ye nyntof yb nisiant monctli,
of December Ami ordanit ye nersones euteril
?^*one pannel this day to fynd cau'un tor
entiie that day ilk pcrsonc viidcr ye panetl
q'tenit in the former act viz. of ane tboiiBiiji4|
merkis mooey.
The persones of assysesnmmond to this day
wamit apud acta ilk persone vnder ye pane i **"
s^m m'kis money.
Compifired Mr. Wm. Gordoun appeirai
of Strain che and become souertie for euirie
ye said Alexander Irwuig of Leniurk.
Mr, Robert Reid bur£^ of Ab*d' for enti
of Alexander Ranerman of ELsick and Mr«j
Matbow Lumisden.
Haiie Gordutm in Glassach for en trie of
John Ogilvie of Glassacbe.
Mr. James Cheane wryter ffer cntrie Hf
Goorge Gonloun of Tilliechowdie and WiDj
beaiounot' 8c!»elhyn.
Adame Abercrcmbie fcr entrie of Hector
Abercromhit» of Fetterneir his brutlier
J4ime& Seatoun burge^ot Aberdene.
Robert Banermafi in Elsick for entrie of
Slid tJhairk'S hteivu) buige.«4 of EdmlMStirli [i
Aberdeen] the &aid nynt day of l>eoeiiiJ
lostant*
^
US]
mpon a Procem tf Error.
CuRU JusTiciARiE S. D. N. Regis Tenta in
pretorio ile EdV nono Det^bris 16.05
Per Maflr'ros Alexanttrum Coluile de Blair
eC] Jacobum Kobertoun adnucatum As-
Bfcjsores Justiciario John Eric of Traqiiair
Dauid Erie of Soutbeak Arcbiiwld lord
Lome.
Iniran*
AssYSE OP Error.
Alexander Irwingy of Lenturk.
Alexander Banerman, of Eisick.
BIr. Mathow Lum'uden^ bnrges of Aberflene.
Johm Ogiivie^ of Glassiche.
Wm. Seaiflun^ of Scheatliyn.
George Gordoun^ of Tilliecbondie.
Hector Abercrombify of Fetter-neir.
James Seatoun^ burges of Aberdene,
Charles Stevin Utster^ burf^ y*.
Alexander Abercrombie^ of Birkiaboig.
George Gordaun^ of Newtoun.
Alexander Le'Uhy of Duffus.
Dilaitit of ve vilfiill errors committit be
Ihame in ye clangeing partiallie and wilfullie
of James Gordonn sone to George Gordoun
of LogyaltouD of intercommoning with Alex-
ander Leith and Nathaniell Gordonn rcbellis
of je north.
JPerfAFar.— Sir Thomas Hope 4i Craighall
kny't his Maiesteis Aduocat.
Prolocutortfor thepanntl. — ^Mr. James Baird
Mr. Thomas Nicolsoue Mr. John Nisbet.
My lord Aduocat producet ane act of spcreifc
counsall qr*by Dauid Erie of Sonthosk is
no'iat and adioynet to the asscsso*rs fiirineriic
appoyntit for assisffiig the instice In the prorrs
of error dei)ending befoir him daittit thciucht
dav of December instant vpone the pn>diictioun
qr of .and of my lord of iiikiutheaik his persoiiall
p'na and acccptatioun his uiaiestcis aduocat
atkit instnimentis.
^' The persones enterit ypone pnnnel befoir
nolat askit instrumentis of y' entrie this day
apeciallie Alexander Abircrombie of Hirkin-
Doit; George Gordoun of Newtoun and Alex*
ander Keith of Duflus and protestit for ye cau-
tioneris relief.
My loi-d Aduocat befoir ony fanler di8])utft-
tioun vpone the dittay nrodncrt and red, pass*
fra that pairtand article y 'of* wilfullie' » pro
'Jocoet tempore' And dt'cl.aires tli:u he insist!:*
only yjionc tliat vther pairl of y o ditfay «|r'by
the itersones that war vpon James G<»n1on('s
A.D. 1681. [114
Mr. James Baird for himself and in name of
ye rest of ye pannellis prelo*rs protestis that in
cnice my'lerd aduocat vse ony fanler prolKi-
tioun be writt aganis the paniiel for proveing
of yV errors nor qu hat Mas producet at ye last
dyet that ye samyn may be sene and consid-
deret be ttiame befoir his Tp propone ony thing
y*iii)0un.
My lord Aduocat declaired that he vsed the
writis producet the last dyet of yis proces and
now repeilted be his lo' with the actis of pTui-
ment q'rvi)ouii the dittay is foundit, for ye fall
verificatioun of the dittay.
The pannel declairis that yai accept the as-
sesso'rs no*iat to his maierfiteis justice w'thout
ony objecti(»im that may be propooet be thame
in ye contrair.
it is alledgit be Mr. James Baird for ye
pannel that ye dittay is nawayis relevant to. put
the pannel to ye luiawledge of ane assyse for
ye enour lybeilit Because it is nnther snb-
sumet in tlie dittay nor proven that the pannel
now stamling in judgment hauc acquit the
former pannel for private respect be faTor
or be partiall meanis w'tout the qlk war sub -
sumet and provcin the dittay is nawayis rele*
vant bcsydis that the act of parliament maid
be king James the thrid of eternall mcmerie
gois vponn the same groundis viz. the ancht
parliament evin so the same rewle is kdpit
and hes bene keipit fhir many zciris by gane
w'tin the kingdome of England Albeit for j-e
maist pairt ye Kamyfi dois oecure in civde
buflineH as is* rioir be yo t\ientie ane statute
-maid Iw kinjr Henrie ye sevint in the cllcvint
/.?■>! r of his re^ri'nie .^nd be ye thrid statute
maid be king l-fcnric ye aueht in the twentie
thrie 7%-'ir of his rigi me and be ye twentie
Hve statute maid be ^uenc Elizabethe in the
threttenc zeir of hir rigi'mc be all thease actis
and statutis the grand jure hes only power to
try and cogtios* give any of ye first jure had
ressauit any sowmes of money rewairdis or
promeis ot guid dead done to yame setfHs or
to any vther to yair beliuiff for ye verdeit and
na vther wavis This is Ivkwayis clear be ane
statute maid in thedayisot'Edviarde thethride
in the threttie lour zeir of his rigi*me that ye
gi'and assyse q*l!v is our fyvc and tuentic hes
only power to cognos* and try giue ye first
assyse hes \ytne br\ bit as said is q'lk being nay'
qualefeit nor prcvcin is nawayis relevant
igitur, \-e.
It is aildtl be Mr. John Nisl)et that ye dittay
sua far as it sultsuines
IS nnwayiv rrMcvant ni
assyse ar pannellit for clangcing yovuiil Jsmics ; g'nVillie that yrpnnnall lies acquittwilfullic and
of intercommoning and conference Mittinglie i te[nfTnriouf;li(; be partiall mennis or favor And
vith the rebellis and insistis ng::nls thame us - condL'scv-ndit not vponn any niranis or niotivi.'S
haifing clanget the said James wilfullio par- i of pnrtiuiiiie nrf:i\or nor vpoun any practizer
tiallie at the leist tenicrariouslle and takis in- i or rorrujitcr and iiidr.cer to partialitie nor be
strumentis of the reiding of yo dittay and of Iqnhais favovc th;«y have bene misled without
the writtis producet be his h/ at ye last dyet ' yoqiihilk t-onduHcendiiiir ye gfntTtilitie of
for verificatioun of ye same viz the act of par- •-' *' -■ *■ ■■■■ *-.-:.—
liament king James the tift par. (!, cap. 97,
Jacobiti, par. 12, cap. 144, with ihe drpnsi-
liones of James Gordoun and the I'rcs of in-
lercommoning.
VOL. Xi.
ye
IS inatrpt qiiiu accMisatwrius Libellus
ceitilndin" •i()nnni!t!-. ( t It-.indus venit. Battan-
der regain sj'\tji ; ctoiuiips liMlistas de forma
libell cviininaJis ; vi le|^e in cnnsis criminalibns
Cod. dc accusationibuy ; ct eximiaglossa sccreta-
I
115]
S3 CHARLES 11.
f ium ?bi forma libelU criminalis proponitur ; ct
in crioiiuibus non vaj^andum : Lege decima ff.
tic* flolo malo ^* et accusator non debet vagari cuip
eAistimatiuDC alia iu discrirnine, sed certuin di-
cere. Lege si in reum ; ff. de rei vindicatione et
in criuuiiibus coiuplexis et coirelativis vt adul-
terio >bi adulter et adultera et repetundis et
barratria et corruptione judicis per sordes vel
^ratiain uberiorum |ieue et comiptus correlata
aunt, uon tautuiii locus et tenipus ezpriiuide*
U.'nt ill lil)ella, sed et persous cum quibus com-
niunioiie criiuinis compUcantur rei Lege li-
bcliuruni tit. de accusationibus ut io Ibrma li-
belii de corruiitioiie judicis. Amideus — De
Custello ostcndit in tractu de Indicatu. Thairf'oir
Being ye crime quhilk. is the subject of ye law
is not errour simplie quhilk is incideot to ^«
uiost iniioceut and iu law and seoce importith
n.'¥f;uilt bot yewilfuU depravatioun of assys'ors
be favor anu partiall meania And ye assys'ors
ar to cognos' and delyuer not so much of error,
as of ye qualitie of it qubither partiall or wilfull
be lk?or or partiall meanis A g'nerall as-
aumptioun of fa?or and comiptioun cannot pas
to ye knawledge of ane grit assyse And the
pannell cannot be prejudget of ye defence
quhilk wald result pregnantlie vpoun ye con-
descending of yc practizeris and meanis of
partialitie and motives qr'with ye pannell hes
bene misled viz. Thai ye pairteis consescendit
vpoun be partiall meanis or practizes and favor
to hauc corruptit ye pannell was not of that
estait as to have corruptit yame nor of yat pre-
dominant favor as to have iuvaigled fyltene men
in wilfull inniquitie and to haue maid tbome
conspyre in the most attrocious and impresa-
mable cryuienixt to that a^nis ye Uoly Gost
quVith It is alhnost coincident viz. a wilfull
opposcinp^ God and conscience quem Cicero
an{)ellat ^' Drum Tel sultcm doroumDeiquonibill
divinius'' ]>c OtBciis libro tertio. And all de-
vynes ^* vuluntatem Dei revclalam si non mate-
naliter saltern formaliter ct interpretative quia
iuud cuuscientia dictat fcub ratione voluntatis
^ei dictat" Amesius de Conicientia cap. 4.
Ai^auist ye quhilk it cannot be presumet nor
rclevantiie aftsumct that any man erres be fa-
vour or partialitie without some apparent or
lybellit motive And the cousonancie of our
biw with ye statuttis of Ingland vrgt^ be Mr.
James Baird is constant lie }eact of parliament
anent ye uuth uf uss\ s'ors that they suU nather
luk bud nor mcid 'J'lie cuuiravencing of ye
quliilk tiiilic lu'c-aicry vit be ye act uf parliament is
tiiiu/ar'tum juramtiilutn and not q' a man
del}uc-rilU accoirdiug to his knawledge albeit
et-roiiiouslie Ik'caus in luw and the cnstome
of all UHtiutit-s the cunciptiuun ami ineaneing
of ye o:irlii' of juii;^-esis only ** (>uo(! jtsdicabunt
U(»u quuil jusiiiis ci iiiulius austiticie, sed quod
justius et mdids ipsis visum fuciit." Lege
J 4. Cod. de JiKhciisi.— " lit jud<*x tcuetur
tantum bi scii nttr I'uliit, (|iiia in bciontia nmlta
versutur iu \ita.'^ Ciceio Lib. 4. Acadeuii-
caruni quL-ktionum.
Secuudo, the dittn y is nawayia relevant iusna
'^i^'uii^ru tit* ^iil^ul2 aud timerarious
Proeeedingt Bgaimi Ales. Blair and otheri, [1 16
delyuerance and depravatioan of aasyseowria
be the material! error and allet' inniq^uitie of
y' verdict Becaus in law it is a paralogisiDe to
argue from errour and ignorance to cry me and
from the inniquitieof y e sentence to the iunii^uitie
of yejudge ** quia aententia potest esse Iniustm
ex ammo ^roferentis, et justa ex online etoansa ;
et contra justa ex animo sed injusta ex caosa:
Decret: Causa secunda quest tertia" CanoiM
62. And error argueth ignorance in inielUetu^
and not in justice in wfmi^M et voluntate, qa«
maleficia distinffuit non autem exitus et Te-
ritas. Lege Divi Hadriani ff. ad Legem Cor-
neliaro de Sicariis: Et non omnis injuitum ali«
quid dicens vel fadens est iniustus. Arist Lib.
5. Ethicor. Cap. 6. Et qniupiam ex iaten-
tione et electione iniustum tacere reddit aln
quem injnsturo non autem facere preter inten-
tionem et per accidens sed ignorantiam Con*
clusio Divi Thoms in secunda quest. 59»
Articulo secnndo. Et cum Judicium ait ag-
gregatum ex actu voluntatis inclinaotis ad
recte Judicandum pnidentie autem seu Fationit
determinantis. Thomas in Sa Sdce quflBsL 6.
in couclasione articuli primi. The fatalitie of
errour quhilk is incident to ye best and is ana
naturall eclips of reasone occasioned by ye in-
dispo»tioun of organes ouia aliqui habent iIp
tionem depravatam ex mala habitudine nakura
Thomas 2f 8doe queest. ^4. qualefeis not releraDi-
lie wilfull perversues and partialitie of ye will
Becaus in law and be ye universal practiqua
of all natkmes and tymes the error of judges ia
not a cry me bot sordit and partiall depravatkron
is only pnneischalde Lege 12 TabuWum xe-
poirtit by Aulua Gellius liiiro secundo noctiinn.
Cap. ]. Lege Julia repetundarum ff. et Cod.
ad Legem Juliam de repetandis. Le^e Con*
stantini Cod. de piena J udioB qui male jndicabit
Novella Justioiani et Litigatores in exordio
Litis Indicium § Si quis autem ex Litigato-
ribus, et alia Novella ejusdem, ut judices aua
quoque suffragio dant $ '* tii (j^uis autem gqok
stitutione Valentis et Valentiniani Lege Tni*^
versis Cod. ubi cansoifiscalesagauturcousti-
tutioue Gratiani, Valentiniani et Theodoni
Lege Judicis Co«1. de dignitatibus. In all
quhilks lawis corrujUM depravatio deprtd^tm
J'urcu ichelcra and iu the cannon bw simonim
passim ar ye crymes duiy puneisched in judges,
and abjured be* thame \\ ith solempne concep-
tioun of oilhes at yair lulmissioun. NovelU 8L
'* ut Judices sinequoquesuH'racfio" Cap. 17.ft
Novella 9. Jusjuruiithnn quod prcstatur &
his qui iu Adiiiitiistr.nioiic sint, Demostiuea
contra Dcniocritoin de Junmient' Judicuniy
the contravening of quhilk aitlics inakis yania
lyabte and not a involunter ina/Tectat error
quhilk baith in law dlvinille and philo'fUiia
is excusable, and without a gros^ absurdititt
cannot found ane dittay Arist. Libro quinto
ethicorum, Cap. 8 *' Divut; Thomas, Amesiiia
et omncs casuists de coiiscicncia crrante quia
judex tunc litem suum facere iutclligitur cuna
dolo malo in fraudem k^is senientiam ducH
Et dolo malo videtur hoc facere. Non cdib
sententia iniusta est sv;J ki euJtus arguatur
I IT}
UjioH/t Prteu of Error.
A. D. 1$81.
[IIS
eiu* rel gnitia vcl InimickrcE vel sordes*" Leg*.
15. IT. de JuUieils *' Et pejeriU tHnttim cnit
•cien« fiiUil ^* Lege 26 ff. de Jureiurandci," Kt
formula Jurifljuraadl otini erat. 8i sciens fiiUo
<lie»{)iter me boni» ejimt. Armochiiti! Consilio
891. **• Et Jurtices debent omxinie p^mnrc
eonsctentiain meiilift »up/* Cicero pro Mibne
ttjiassim: et conscienlie Hiam erromtn di-
€4iilur sequi quia ohli^nt ; otiities causuiste de
conscientm errante adfu tI voluntas disfordai is
a cofiscicntia eUurit errante nmfa sit et iniiiftA.
duia quirqtiid est contra c(»n»cnentiain et rum
«r fide peccatum est ad lloiitano« CMp. 14.
Thomas 3 quest, 19 articalo 5. Be the whilks
alleg^ations it is constant that itrnomncc and
error in judges is nocht ane cTyrne Kt Im-
perilia et itfiprudentia f»er quani judicen litem
iuam^aduntnonest inaleBciuoi In^titutionlhus
De obli^iionibiis quag ex qua&i delicto nas-
eumur, ^. de oblig^atiDnibiiR H actionibos. l^ege
6. ^ si Judex. Et leg^e 6nali de variis et
•Xtrmordinanifl judiciis and thatformall iniquitie
Aod partialitie cannocht be aubsumet vpone
aentcnces maieriallie erronius. And speciallie
aganist the aasysors quba or nocht judges
profiteiites MfitMin ct qui idco tenentur as-
•uoiendo officium ex quasi delicto. Pbarina
foeat. J02. Num. $89* Bot i>edaneous and
HfitneiBuiif Judges require! to serre the king
iccoinling- to thair conscience '^ non ha-
bentes Jurisdiction em sed cognitionem tantum
camque facti taiitum cuius iguorantia non €St
bta culpa nee temeritaa nee quasi delictum et
interpretatio prudentissiina etiam tfallit'*if. De
Juris et lacti tgnorantia Hot speciallie in Ibis
ciice the alledjTct ioiquitie of the seatence
fllMflttllit eaiinociit qualifle u ilfuU error agnni^
ttfi raitilroeii now panne 11 it bein|r all hottest
Sentilmen aclcno\^lpdi^it be rne lord aduocat
inuelf quha hcs gevin pruife of yatr loyaltie
ia y« lait disordourev of ye count ne And bes
Ithes^reifaDd Tiber com mission eris for
J tharoe And cannocht be presumet
" iodangcrit tharr honor and est ait be a
wilful! acqaitliuop of ane poore inconsiderable
man in quhouie ihay had no interest and
2abome for the maist |it* thay had ne?ir sene
Q respect v^of s^ing ** in dubio dolus non pre-
sumitur scd ex itidictis perBpicuis probari coo-
venit^'Ub. 6. Cod. de dolo malo cheitlit! aganist
Judges, 'Phari. que«t. 89 Num. H, Et omnes
docUircs in Lege 3. Codices de officio Civthuin
Jodie uni tn verba non artritramur. And in
the present caice all presumptiones exclu^
«!*• of dole ar ooncumng to the qua-
Utic of ye pannell baiting bene hitherto
hotieat and uuMU^pert g^ntiJmcn The qq^htie
of the imirtie acquit quha could nayer pnie-
tize nor dc^enre fauor The number and pod-
aonancie of the haill pannal in ymv acquit-
ting a man in quhouie tuay had no interat and
j*loir can nocht be nresumit tn have conspy red
wHIiout oity cause m wronging y^r coiiMn«uoe«
^tliev hail fyM t ' vine moir
II rnc of sliucht : quhilk
'the taw and in allMiM>ii..tLnii i* uue maiirt
prlgtiiuit prcanjiiutiottn ** quw ccnAuiv causa
^essnt delicti pm umptio ; et dolus non pr
irnintritr vbi non adest Yucrnm.'^ Crtivettt
Concilio 175 et Concilio 319, Baldiis Coneili
25, volumine secnmlo. *" Multo ininus fh
damnum sentireinr** Pl^an. quest. Hi. mi
44, H is y'ftnir conehidit '* qund fran« p<ite
esaefine pena sed penn non sine fraude ne
of>c*!tBc debet iis qnonim seut^ntla fuerit solut
et resrift«^ nisi Cfmvinei potueriut vel iniqn^
animo jndic«<sse vel aliqimjtrmtia et rupiditaU
dcpravari." Decretal, Cju J sn ^> quest, 6» canon
3 k ** vbi glos^a *,{ couvinci ar^umentatur quo
contra judirem malum non prestimiturquan
vh sententia iuiqua H rescissa n\i Wm con-
vineatnr et propterea qui dirii judicem dotd
aliqiiid egisse probare debet,** Phari. quest*
Un. num. 3«1. vbi ex vertio evident
I^gfe siifilus, ff, de juiliciis cf»lti^tt quod ad
judiciH dolum prohandum non ftuA^icinni pre
sumption^*^ nisi sint evidente* «•« concUidente
et non presumi ev tacti qfiJilitjite nisi sit 1
Tt nulla paUiati<me exeusavi po&iit."
Num. 35. ** Kt judex errando eiinm in jup
non in dolo sed lata ctilpa esne diritur le^**
ff. de verborum signitir^atiooc. Phar. que
111. num. 473. '* Vhi astrurt sententtituti
suura innumerifi testimoniis dnctonim ussoren-'
tium quod licet ex jiidicts ignnmiitia arguattif
lata culpa IS on taroen arguiiur iloias «*t quo "
nee etiam dc^los presumntus itidiiciuir niulttl
minus punitur quia in cnminalibus lata culp
non eq^iipai-Htur dolo. Phar. quest. R4. § I
nali. Num. 21. Phar. quest. SO. Num. Ifl
Et omnes doctores et de jure el tyinsuetndini
judicis non sic iudicantur desententiis per im-
|>eritiam legis sed de dolo et l>arratrm. Bal«
du8» in lege observari § nrofiacisci ff.de oBioil
pro consul i> -i i-.r^tr. Ilyeronimu*; Jachimu
Coucilio i\ u vbicitat Batdum Ber
lasium et or : stores in materia si iudicatiil
tenentesjudicemnonteneri de imperitiaet control
judicem siju«Jicandum non sufticete presumj*-
Clones sed probationes sole clatiores precipue vb
cessatcommoducn etftilitas. duo ca'?u senterttii
iniqim non dioihir doliMui: ibidem num.
Quia in qualibct materia considerari ileb
potius causa facti quam factum. And llti
act of parliament 1475 puneisches only fals i
sy^rs as the nibrik beiris And {{rtioranee iti~
law can never impoirt falsett " ipiiii tnlsum
non potest esse sine dolo." fr.de dolo malo.
And the act of parliament cmly puneisehcs wjU
full acquitteris be favore or paiii^il meanest
and temeraritie in the ad of parliamont i^ takei
copnlatiuelie with wiltullie as the dif;iunctiv#lj
* or^ it ever interprejt quhair yair sould eiisevf |
vtherwnyis ane inhumane ahsurdHie aujj
temeraritie is only puneischablo quaiulo
veuit H dolo malo. Phar. quest. 0<J, nun
63. Alioqui temeritas faeilitatis venmrn eoi
tuiet et peiia nou potest irrogari C ad «enatua
consultum m Tnrpilianum et ori
siMuper c^nsideranda est si enu Ao%
lion f«t delictum. And (t
mniestie «|r*nitO the act
Intive i|»tmeisc^c0 only p<iiu
d^eravit ct dig«rai(M» {ivrcouvK
33 CHARLES II. ProceedingB MgmnH Alex. BUiir end others, [190
foundit quiiairin it is said that natie presume
or tak v|>oiie hand to recept or intercoramoun
&c. For heir * or' does not seperat wordifl of
dyu's senn* in sua iar as to presume and totalM
▼pone haud ar all aue And in the strict accep-
tatioun of ye wordis ancht to be interpreit da
dolo prcmediuito ct apjiensato non dedolo flim-
plici. As gif ony man knawingfthal inter-
commonin;^ with rcb<>llis war a cryme Bochl-
with;»taudingy 'ofhe wald attempt to committhe
said crymc thinkiu*^ hy i»ome vtlier e?asiouii to
eveit thepuneischment of ye law and to schaw
clcirlie that y^e said word (temeraritie^ in the act
of pai'lianicutmost be that same with witfali
error and partialilie The act of parliament ia
allcad((ing the caus of the |freat assyse vi|pe»
only tills that gif ony sail haif acquit he wiii'aU
error or partialitie and speikis nathing of teme*
raritie Uuhilk wordis of the act being strenth«
eiied be therubrickof this act and the corooaomft
law auchtto stronthen and interpreit any sub-
sequent wordis of the act ordane<l be thesainjia
in respect of thaise wordis wilfuUie or partiauie
meines conteined in the first end of the act.
Tertio it is allegit lie Mr. Thomas Nicolioee
that the pannell cannocht go to the kaew-
ledge of ane assyse vpone the dittay m
mpect the samyn is nawayas relefant as
it is declairet he my lord aduocat '* in in-
gressu Litis*' viz. that his lo'insistis only vpone
this dittay as it Ivbellis the |)annellis as temere*
rioiislie or wilfullie to haif danget James Gor-
doun the pei-soun first pannellit frome wittingp
intcrconiinoning Because the dittay does nocht
rdevantlie subsume fra the act of {t'liament * de
*■ pen a tcmene jurantium super assisam' in sua
far as the said act boiris That in ye accusatioiiB
of ane trespassore nottour and niaiiilest knaip*
lcj;re beinpf had of ye trespassour Than gif it salt
happin the assyse to clenge the tresjiassore and
gif it sail be Terified evidenced to ye assyse. of
error that ye p^tie acquit was ane trespaiMe
that than ye acquilteris of him sail incur 1^
pane of * tciueri jurantium super assisam' Bel
sa it is that ye tUttay subsumeing that ye pae*
nehs assoilzf ing James Gordoun fronie witting
iutercommoning dues nocht subsume that thay
assoilziet ane trespasser and cheiflie such aee.
trcspassor as qr^by nieanet be ye act of p'l»»
ment And y'lbir it is nocht relevantlie su^
Kumet fra ye act of pMiameiit de ptna temer^
jurantium That James Gordouu being ane
uaiked wiitintr inlercomnioner is no trce»
passor It is cleir out of ye dftinitiuun of wit-
ting interconimonin|i;; allegit be my lord ad*
uouat in ye dittay viz. that allenarlie kna«r«
iiig that the p^icis with q'm he intercommon-
(id warrebellis lie intercom inoned with tbame
iior to niak ony intercomiiioning a eryme
and such a cry me as be the lawis of the cuntrey.
ar puneischable be death Nocht only moaft
ihay be prcsupponet that ve intercommooer
knew the rebeJiis to be rebellis hot also that
knawiiig tlianie to be rebellis befoir the aft of '
intercom moning cif the tyme of ye same he
had a frie will and intentioun to iniercomniona
with thame For of the law of all
119]
y'foir in respect of the cubrik beiringonly falset
and that in law ndirica dat interpretationem .
statuto. Mascardus de generaii interpre-
tatioue stalutornm et ostendit mentem statueii-
tiom dicia conclusione. And that statutes ar
to be interpreit nc»n secundam rorticeui ver-
borum l>ot accoirding toUie rubrick and vni-
uersall strayne of law and reasone precipuc
quando se([ueretur absurd urn. Mascardus ibidem
<Sadem questione temeL*antie. Thuir can never
be interpreit ignomnce qolitlk in law and sen's
can nevir iiupoirt ane cryme quod consistit
ex voluntate et ad'cctu et dolo malo. As is
constant be all the cnmiiud edittisofye law
in the 27 and QQ buik of the Dip^csts q'in the
hiiili matter of crymes is contcined and almost
in everie title and everie paragraphe dolus
mains data opei-a cnimus affcctus |)ro|}o&itum
volunlas i'raus ar re qiiyret and repel tit,
Itistiket be Mr. Thomas Niculsonc to the
last alleil^eance proponct be Mr. John Nisl>ett
andchietiiciu furtiiicatioun of that poynt y'of
ancnt the interprctiitioun of the particle (or)
to be vndei-stuid as ^i\' it war the particle (and)
and that temeraritie in the act of 'parliament is
to be conioynet with wilfull error and partialitie
It is allcii^et that nuther in law nor cvin in the
actis of parliament thamesc^ltEs is the saniyn
ane impropriat signilicatioun stran^^e or nucht
fiudabic nut in l;iw hot in. ye contrair for es-
chewing of civill danf^eris in matters of guidis
or heritage 'i'he particle (aut) or (vel) is in-
terpreit and tane for the particle (and) et As
chicflic in Ltge 57. s. 2. ad TrebL'lli.'mum se-
natus-coiisultiim |Kn*peto de te vxor charissima
turn inorieris hereditateni meam rcstituas
filiis nieis vel vni rorum vel neputibus meis
vel cui volucris rcspondi (inquit jurisconsultus)
inter iilios siilistitutione commissa factum
videri. And yit be ye woirds y'of to witt * vel*
thair was powm" gevin to l eve the heritage to
aue of ihnme us also Lege CAh ff. de verb^rum
significHlione in e\)»res tornies sepe ita com-
juiratuni est vt coniiincta pro disiunctis rccipi-
nniur et e contra disiuncta pro coniunctus nam
cu^n dif'itur apu<l vcteies ai;-natorum <^ntiliiim-
(juc pro separatione accipi ac cum dicitur
super {K:cunia tnlela ve sua. Tutor sepa-
rutim sine ps-cunia davi nnn potest, iind also
liege 't. Cod ice de vcrbdruin el rerum sig-
iiiiioatione ilii in«liiis itaque nobis visum est
inquit imperator omni huuismodi vorbo citato
coniuiK'tioncin aut pro et accL'pl vt videutur
copujatiuo inodo esse pn Inla qucmadmo-
dum in iiiterdicto quod vi sut rlani coniiinctio
(aut) fM-o (et) apjKTtissiiii;^ est pouita. In q*ik
cait'ts for civile res}H?ctis ll.-c inipmpriatioun or
the w ord (aut) is in vse Ai;(l \ airfoir far rather
aucht ye samyn to haif place in this caice
qr' wiUiout tlle!^anlyn the act of parliament in
the wordis of ten sera ritie can nocht reosaue ane
iiiterprptatior.n accctiniing to law and cqnitie
And yat ihe wt>rd (^r) cvin in sindrie aciisof
p'liamcnt dois not so sep<rat the words bctuix
quhilk it is put as that thay snuld have (htitrent
sens' in substance Jt is cleir oat of the act of
^'i;a.n<mft ^^^ qf» ^^^^^ ^q g^st dittay waa
ISl] uptm « Pr&crn of Eirer*
coDtrollablie observct and inaiitcnet l»e aU
'i* wry ting ^potie the caicc rif comuiis*
A.D. \6%\,
[ISt
of crytnes autl luvw tiie same are pu
BewcJKwble ' It k cletr iliat in cnmes ilie pu-
B«]«cbliient qr^of is corporali quhld<ler capitall
or not l*liat i>c»/t^ that is ,the frie will and
itit«uttoart of ye eomroittcr ia r«qi»iret As tfi
the grittesi of all crymes in Crimiiie fese
iiiaie«Uti$ per totum tituUim tf. ud Lep^fTn
» JuJiam Maiestaiiit ihair is ever mtuiiuim
maid of Dole Bot chicflie Lt^re 4 . foc/mi tUuh
' BDeut supplting of reirellis q1k caice in the
same ivith oures And rnair iVi ciusve opera
dolo main Uostes popiili Hnnmai couicatu armis
tdis eqiiis pccunia aliave qua re adjuti erunt
ct nisi iniervenerti doJus in cofiinu»&icne cri-
mrnis reos onlinarla pena non est punicnduij
Julius C'larus Practica Cltoitiiilifl f . tinali quest.
8-1 nutn. 1. Antonius Gonilsius variaruin resO'
lutionuQi Totno. 3, De lioraicidio nuui. 13.
€*rimen eiiim commimutu «iae delo quanq^m
itl sit materialiter quod revefa es§et erimeu si
ad fuerit dolus in quo consistit forma et essentia
criiiunia cosiissi qua enminis Me tamen doli
CDmmissum coaiuittieiiti uti'quam imputatur
dnUm attteni adeiie dicitur si voluntas eonimit-
leodi cniiieti vel d^ietiim reus Jiabuerit, Lege
^.Cod. dcHicani$ ibi Ri quis sine animo occi-
^IpMli occiderit eum nun puniri. et Lege 14. tV.
^^nr/i 11)1 Divus Hadrianus in hec verba
HBRripsit in male ficiis voluntas spectatur oen
txitiis, Tbe reaaoiib qr^of is ge\iii lie Fhart.
que«t. 87 inspeciione prima num. 5, Quia
sine dolo et tinimo di liuqivenrli delictum tion
Qommillittir et^ ne€ pnniturf non commi^lUur
iiiquit quia animus et proposirum distin^uunt
mabilcia et in dtJictis et malefk'iis vttluntav
•pectatur et non exilu"i. And uTuiidis bimselff
vpone expn^'s JrnTis*as Lesfe 1. § 3. If. nd Legem
€ioroiiliAm de Hicariis Ibi cum qui liominf^m
si non oecitlcndi animo a<Uiiistt absoh i
k*et \f^^^ ^I3a, in priudj»io f^^ furtis.
ibi qui iniurie causa jaooaiii elftcgit qnanivii^
iode per alios res amoti gust oon tcnetur furti
nam maleficia totuntas et prepositum delin-
quentis distingutinl; et capile ebm voluntate de
Miitentia exoommuniiUktioum cum vohmiate et
pfopof^ito mrilolicta distinguuntnr excommuni-
cationi.4 senlentiiKm non inciirrit qui e\commu<
nieuto in his qui ad a1i«ohtti(mem vel nhas ad
ammse »«dnrrni pertinent in loctitioue pai ticipai
Licet etiam alia %'ert>a inridentc!r intrrponat.
ita sentii* 3iiutM:hiu>« de Arbrtrariis Judicium
t'iiHui^ii. num. t» l>um ait veram ei divinam
«Kie omnium sentontiam iletirtum *ine dob* non
puniri And th.it mvca du rrquixitione duli in
«fimmibu«i is so inlair^^cd be all tlie doctors
that Ibay IkjUI it mm quhtifr it is protiitit l»e
ooy statute simplV 'I'bat \e eommitter of the
cry me saH bc> puneisrhc-t m.* death. Etsta-
liunm intf^lbi^ecidum si delictum sit dulo com^
Iftissum qnii* sitatuia reeipiunt intiTpretaiionem
passiram a Jure communiuequis damnum in*
liebitc patiniur. glosea 10, l^ge. 2 Cod. de
Nox. act. Jas. Lib. in actinmbua num. ^6, if.
l>e Litem jurantia Ibi tent,. n!e cou-
lrarimi» Idem Jas, in ru^ tie lege
nam. 19, el iO. Ant. Gom. Varioniiii reao-
lutionum Tom. 3, Cap. 3, onm. 15. Paul
de Cas, in rubric. Tit. ff, dc lege num. J9-
Alexander ConsiJio 140 num. 4, toIh. £» Et
per tolum consilium vbi congnJuit eum qui
[josuit oHendiculum ad feiie&tram c&iiaa ca*
|)feiMli fbrea noctu aecedentes non teneri de
ocdso fd contigerit ahquem vol en tern per so
vestram ingredi mediante oflVadicitlo precipi*
lem Irtpisum in lerram et mortuume&«»e uoqiioA
qui oliendiculuui posutt anuiium occidendj \
habuit. Lt coui>jUo 38, ti>I lo uht con
Itiit locum case Jure repr^ > in suo
e^^iiiuihuH uoo olmtante - 'taute ad
sueoes!»iouem cognatos proximtores in grado
quia per hoc non excluditur Jus rfpreteDta->
liontK. Tira. de Jure primogenilorum quear,
40, num. 2^, el B9. Pbarioa. de dehctta
carnis, quest. 345, num. QJl, et num. 159.
Alias SI statuta interpretarentt»r sequere-
tur maximum absurdum : Nimirum quod esor
homicidio casuah quod sine aliqiia cul]ta con-^
tigerit quis decapitaie deberet quod ecset vaidd
Injquum. Idem Paiilus m Lib. 3, €3od. d^
£pi.s. Audientia Jure secundum iua com-
mune statuta judrx interpretare potest quainq'ia
ea serfarejitiuverit per eius emm Jutamenluat
uon loUitur arbitrium quod ei datur a Jure muk
muni dictus. Pauhta in lib. 3. Cod. exqui
Caus. in lamia irrogatur vbi ait se istani causain
habtii^e de tiioto et i|uendam evasi^ise a pcB»
mortis imo verba skituta smit potius impropri*
and in civilibus et etiam aUquando pro super*
liuis Liabenda quam lerant sensum jure com*
muui contrarium et pafiatiir quis damnum in*
debite, Joannes Tugona singular, suo 16 mini*
7, Hipp, de Mar. singulnr. suo 640 num. 5^
Ergo niulto inagiii in criminalibu^ ne quia
damnum vite indcbitum eiusquc dispeuditmi
pat ia tur.
Turn autem maxime stati^ta crimifiibtifl
|jcnam capitalem imju^n'^n'm viinnJiciter sine
vita do!i meutione i » a Jure
comrautii teeiperedt^i , i»"llii:antur
mode crimen dolo sit commissum, quando sta*
tuta hi^ verbis vtnn tur, ne quis audeat vel pre-*
liiunat, verba autem audei^ vel presumere no*
turn animi et voluntatis presupponunt, PhaH.
in quest^e 87« num. 33. et audere vel pr«-
»uriiere ex alicno ^ecunda t>arte pru^sump*
tionum Num. '^ nihil aliud stgniHeant
quam prt*«»um|»4ive et suprrhe aliquid agere att*
ihoritate pi .:< niptn sujKTtom amho-
ritatem ; * clium et supercilium ia
animo et lo.iiinuit iiiibtnt. Ita AlexV Coa^
<filio l!23. num. 9. vol. 4. ifor ony stafule er ncl
^9 fxrmpt* e,rQtta The act nf nulJuiTaeiit ini
anno 1592 aganiH inter* . bt'iring*^
tliaiseword^ That naue p i iik'Tpone-'
hand ayer most be u'idenitand to speik of'^
crymej* committed an mo tt pntpoUlo tom* {
mttteutii or ell is the said is aetis sal be eoa«
trair fo the commoun taw that puneischet
na ci-ymes capilallie bot crymes eommiltit off ^
wilK and tniiutioun And also ye saidis actiy
sail be conlrair to thameselms and imply
aue oontradiottcmii m tlie commitler of the
Hyj " 5$CnARLlSn. Pt^etedhgiagdhntAteM.SUiraniotheri, [Ifl
€ryme ^f tbfty tta\ he vnAlnUud of theaee
^uha coitiDiittis aay allegit t^r^me " ffiDe
proposito et animo dttincjueuJl'* quimo zit thay
a^ieik only of ibtas« quba sail presume or tak
rpone h»nd to commit the crynie That is quha
conl#mpniikijf the ^upreame amijoritic in vair
myntJis Qttempllito doein the contrair or ye
■ame and ta (wrtietrat ye «ii^rae forbidden
quhilkis lua quatiteis Ttz, to commit any alledgit
ei'yme ** sine ajiinji> commiiiendi,'* and to
cominit the same ** animo presiimptuoso et
legeiii spernente** ar oocht compaiiWe "' eotlem
tempore el actu." And nocht only of the law
is this intentioun callit doin* he the doctors
naikedlie requiret to intervene in ye comuiis'
fioim of ony crime l»ot the same is so stricllie
ezmctii and link it to thai gif be s<ime gross
i>eg:gUgt^nce el lata com mitten tis culpa quod
crimen ridetur committJitur, |>cDa iameu oriii-
Daria com mittens puniri no n potest quia puni*
endiis venirct si ex propositoatlmittniiir crimen
^uanqnam enioi in ci%ilihu& bita culpa doio
eqtujpareiur non tamea in criminal ihii^. Lib,
T* n. de sicarits. Ant. Gom. dicto capilulo 3,
Num. 15 versii ; iroo qucMl ma^iu est quamrili
hotnicidiitm sit comoiissum lata culpa, ifan.
titulo de homicidio quest. 1^5 § 1. Num. 92 et
45 Lata enim culpa non est dolus verus
Bed presumptus. Julius Clarus y dc homicidio
Nutia.4. Minochius de arbitrariis judiciis eas.
352 Num. 12- li'arin. dicta questione 125,
Num. 45* In the ^\hi1kii places the doctore
a.6irmes Crime^i sine dole rommissiini non
ordinaria sed iniliore pcna pleclendum etiamsi
mrlstt lata culpa, dolus enint in tlubio in de-
lictis non prelum itur scd semper vrget pro
reo genemlis presumplio^ ft ea actiia in-
lerpretatio fiat ne quis incidat in delictum
Math. Matbei sing, suo 110, Ja9, in lib. hoc
Jure Col. peoa vltima versa S. fallit ff, de
»ctiaoibus Bart in L. 7. ff> de sicariis et in
Lib. ti adultenuro turn ince^ta § iidem impe-
ritores, ff. de adulteriis tenet abquando in
delictis nollo modo puotri lataiD culpam et
difitiuguit iuter chmina et ddieta quis prtnei-
paliler in altermn committuntur vt bomicidium
ua quibu5 ait Latam culpam eirtraordinaria
puniri poese pena, et inter delicta que per-
•oiiam aiicuius principaliter non respiciimt vt
est stuprura incest urn et Jn nVo cast) ctmver*
satio cmn bauito ; in quibus delictis ait BartoK
L^tam culpam nulliitenns puniri. QucMiauteni
de delictis capitaliter punieudus dictum est re-
qoiri voluntatein et propositiim delinqucndi
sauo sensu est inCelligeiidura ; lia vt voluntas
•it libera et nou caacta neque vi neque itietu
iufcto; justo nitnirum qui in constautiiisrtnum
nomtnem fadere pHest, voluntas enim est
mavr oogente ad aliquid non irai-
Un uduui.hoc est non faciendum
vel tacitndum : Cnp, 10. Cas* 15* qu€»t, J a
Uccreti 2 parte Pn>inde si quls vi co«mHus
f^ ti "' iiti jiuitn aJiiTuid tecerit vel per-
«ttr riau tuuto hanetur in civihbut» et
in cuiMitii«iiii>a« } precipue in ils criminalihus
altaiyi pcriNIOftm principaliter non res-
|pn> ttOtt crimine ii«hbetur
vt in civilibas passim baWri est : per UHtoi
titulum fi\ De eo quod metus eau^, ei qu<
vi et vi armata; »ed precipue in L^ege Cics
tf. de publicis vbi cum Cetsar insutai
Creten locarcl Legem ila dixerat : tie qui
preter reilemptorem [tost i*tiis martia*^ cDtcm e:
insula Crete Ibdito neve ejcimito ueve avellito j*
cuiusdam navis ante idus martias et»tif
ouusta ex porti? Crete pfoferta vento relata in]
portum eiTit, dein iteruui post iduj* l^larcir-^
profecta erat, coniudebatur ntini contra Le;^
factum quod post idus Martias ex uisuta C
cotes exiisise viderentnr: Hesponsum socuil^'
dum casum propositum viiieri non contm
Legem factum; ideo quia relatus erat niiutx
ternpt^tate, et sic in Lq^era latam commits
coactus involuntarie autem hoc*, est concts
voluntate commissa non punicntur. Gl
Gotbofred. in dictam Legem. Ergo intil
raagis in criminalibus quoequis vi relju»to
c^Hctus ill Legem cominillit vel statutuns non
puuiunttir quasi contra statutiim facta : sis
statutum prohiliens rem mobilem alienari sub
pcna in forensem Lacuna solum habet in alienn-
dcme vohintaria non necessaria, Clarus
tiuali quest. 82. staL 2. Num. 4. sic
reccptatoribits coaciiSf recipientes banitum noii
voluntarie sed coacte quia plures sunt banii "
simul et eis erpellere non potuissent sine
periculo pena aliqiia non punitinlur. Ita
Barard. in add. ad Clarum quest. 90. Num. 46.
ibi ait tales receplatores non teneri bamlo«
in doiJio relinqtiere et recedere, Justus autem
niettts ^ est et talis qui in constantisskmom
boniineift eadere pot^t : Est terror armomm
etiatn absque eu quod arm a habentcs iis wti
fuerant. Lege 3. \ qui armati 3. ff. de vi eft
vi armata. Alexander Consilio Lib, 5 coa^
si ho 156 Num. 3. et Lib. 3. Consilio $8*
Num. 2. etiam absque ulla comminatione vel
percus^ioue ^ufiicit terror armorum. AleiC^
ander diet. Consiho 98. Num. 3, Kt
quamvi^ qui cutn armis accessit amja de|K»*^
suerit : Glossa in diet, § qui armati, et Alax ^
ander diet. Consilio Num. 5. Sufficit eiiim^
inquitdictus Al^^ifander Num. 4. et 6. ibidem,'
solus limor violenlie infereude ut sit iusti
raetus modo subsit Justa causa propter quacn
futuram violentie impressionem timere de-
bemus licet violentia neque fuerit secuta Imo
tiequecomminata ; non enim debet quis periculo
extremo sese subjicere: vnde Barard I
supra cilatci receptatores banitorum eos
fie 11 at coactoa qui banitos cunti plQre«
simul receperuot eos expellere non valentf
sine periculo. Item de Jure deterii>iu»tum
est, qutMldicatur metiLs Justus, hoc est viri con*
stantiasimi quando subest metus mortis vel
met us cruciatuB corporis Alexander Lib. £1,
CO nsiliorum, Consilio 99. Num. 3. L, sed el
fii 3ff. ad Legem aquiliam, Ibi et si metaEA
quis mortis furem occiderit. L. 3 § d«cimo C
quod metm; causa L. 4. Cod,4.odem L. 13 d«
trunsttctiouiljiis * tbi set) talem metum prubare
oportet qui salutif Hrel perioulum vel corpus
cruciatum cgnhneat, L. 7. Cod« de lits qut»
^i mctusuecau^ gesta iaQt» ibi tovtruineiiium
si
id«
iricuio
■
upom a PtactMi cf EmiT^
i^. IX. \6%u
[lia
rnetu nioHit ¥«! cructatu corpom eitortum.
ilftrthdua diet. L. 3. § an i , tf. de vi el
vl amiata. A nd y'foiV klx s din^ lo llic
lawis and ti^tittioaeis oi liaclo'rs addiicet
heirtoftiiir nil n^ifn^uig wilb e(]uitie and rea-
aotie 110 ij!i - >« And thiiirfuir uochH ye
wftling II Flinty lyheUit agnnis Jamei
'Gordoun \\\v Tust |Kmncll can b« eatiinatto be
ano crytiN^ (Mini'iKrlmf>le l»e death or to cuni
vutler ye a^nipus of the act of p*Iiamt*nt
f^uist mtercoininonem itiflictiujj;' vpunc thame
bo pwnisrhment of deathe cicepl it be Iv-
heWti und vtider^tuid that a6 be wa*; anc vvit-
liiig iotercnmmoiier so he was aae^vilful inter-
eonimoner Tbat \k qubanr be intercom moned he
I hafle atie ire wilt and lutenttonn Fncuactit in
Iha doi n i^ of the eaiiie The p» iin rl lis assyscria
ia a9(ioy[z4jing the said James Gdrdoun from
WttJiig interoomiiioiiing lies naitayes acquit
■oe tf«8{Hiiaouf« agatnca the act made
'againes intercommoutQg and thairfoir are
I not sdcbe asHysouriii a^ftiaes quhorue anc
relevant dittay f pone the act of parliament
'* dt: pena tetuere litiganttiim snper assysam'*
Icstt be rdevantUe lyUelUt for acquitting
Itlie said Janit-a Gordonn of ^jttiugr in-
' tercomnionin^ The said qualtfie of witting
being vndi^rstuid aa in the dittay distinct frutn
the qu.iliite of wilftill intercomtnoninKT "nd
I i^ittiout the samyne vnless my lord aduaca.t
would conjoyne the aaidis tua qnulitieii lu
ihcy artobe conjoynit in the act of p'linment
for albeit they be conceived in ihe same dis-
junctive zit ttey ar to be vuderaiuid copulative
oe atalututn feratsensiimjure c^mmuni con-
^^tratiutii et fubi ipsi. In quhilk caice gif the
' act of parliaipent i$ould be vnderstuid co-
pulative ns of c<{uilie it aucht to be and the
dittay confiuiue thairto carift wiUing:Ue and
Vrilfi!" - '? » hf Heini thai the quulilie of in-
ter< ' uiUuHit? was njiutiye^^ proven to
the ^ . - - .> James Gordo unes depqcsitioun
and circunjsNii»ce.s thairof producit to thfc said
BMynB But on the coolratr it utiuli \n' schawin
cleirbe, tbat out of the aaid u and
n^yV waye« out of the g-emt i inptiua
cariadire of the refielbs viz. tbiit being' despar
I Atlie diiHirdoarit men and haiveing schakiu a(f
the feir of G<mI and bi^ ma'iies lawis and
liaivein^ tntrrt^rysit ane desperat cours' of
' pf»\ 1(1 doune the cuiintrie be publicl
iiost it !£ rncr to Ixi presnmit againea
thaiiii' uijii !ii tuvo*re of tin* l^idrrea qubome
they acddentalliesurprvst That j^if the letcl^res
doe ni»l haivt! conff r*""^ ■ '''■ ^'-^'ne at limir
tticiliiijf lK>t preioe i< i \ tberwayet
thairinal;i is
'ty attetiipl!; ., ^ ir
l>fe Ami also l>y the rel»elliM thaircariudge and
' Aair ttm nrt-idttntail «urpryi>efi of Jmnes Gor*
doiii ' » the uayse it lall be veritietthat
the GordouD foraoy thing that waa
m Jo the at^jadrii waa trcwbe fomt and
irllit to nay mterooQimoniR^ he had with
le rrbeUix and tbat Iw? anejuxt fcir of the
ibunifiT of bm lyfe i|iibiik trewbd xntgbt kaive
bene ane laftit dainffer gif he had p^reieeit ajr'r
to refuis^ to heir thair discourse or to abvd»
with ibnme dureing tbair pleaa^r ©r gif *(he
bad preiccd to haite gone his way or raisii any
hoy and cry to ad? ertyse neighbouris (isfif anjr
was astrewtie thair was nane) to hare appre-
hendit ihe ri*bellis In respect of thv quhilk
alledgance the dittay aa it is declairit la na*
waves relevant.
Jt is alied^t be Mr. Jo* Nisbett aa prolo-
quiior for the pannell that the dittay h nawayi#
relevant couciuiding penam temere jumnttum
soper asaiaom, vpone the alternative concep-
tloun of the act and assumptioun y*upotiu
unles it be vndcrstuid joyntlie and copu*
lativelie \'tr. that wilfaUie be fauo^r and partiall
mtianes and temerariousUe this pauntll ■■
aasysor' hes acquit James Gordoun agatiist
noltoV and manifest knawledge Beeaus in law
temeraritie is nocbt ane cryine ralea it be tu-
dersttiid with a preauppositioun of wilfiilnea
and dole q'lk is asseotiallie requyret in all
cryinesi aa is at lenth enncet in law and rea*
sooe and w^thouttbequhtlk teraerahtie resolre'
i|)g' in ane iiivoluntarie ignorance iucidenl to
the liest^ can nalher be schwnnet nor pvvnei^
in ajs^ysors quba one yair aitbes ar nocbl
obleist to vindicat yair judgment from error
hot trom depravation n be partialietie aa at
length is schawin in law and la constant b«
the 33 act parliament d Jaoo. primi Q^nhair
the oath precsry vet to all judges is That thay
sail determine all canss^ acooirding to thair
cwnning and skill, absque favore odio frauds
vel roUire aUquo juxta suas scientias. And
y^foir gif yis pannell have delvverit accoirdiog
to yair conscience (aa my lord adao<:at hea ac*
know leg it) albeit i^orantUe—thay cannocbtbe
indytit de teoienirlo \el illicito juramcnto. As
the law in the ma'tie spciketh seinp tbay btif
done all that was incumlient to thame in yair
deutie vpone y' oathe And gif thay had dona
vtberwayia without res|iect to thair awb knaw^
lege and conscience, albeit yair delyueraoce
war sDppoaet mateiiallie just thay aotild b#
teyntid with tbnnall perjurie qMk is only the
cry me pwneiBchable in judges in all 1awi«
und in the law of ye maiestie k emphatic&llie
qualifdt w't the word dtjerant aAd ilhcitum
* juramentiini de pena temere jtirantiiim sup«r
asfiiaamq'ik an nocht quadrat to ignorance al-
beit nevir sac gros' Because no nan is ao bias-
phemons as to aw ear tbat he tall not err ign<>-
rantlie And thair is ^reatdiiference betuix ana
ignorant assyaor and ane fals- assyseorf betuix
ifjfnoranceand flilset qlk being the adequat sub-
ject of ye act and rubrick being concearcd
tbua (anent fds assysores in criminaU cans*!!)
nr'iu ihe alternatives ar jovnet, erinceth that
they are to be takin copufativelie for other-
wayis temeraritie or erroV w'thout wiliuhiet
could noobt iinporte falaet in aaiysors becauae
ill law nemo tenetur fattti ni^ «ciena et dob
malo tl\ ad legem Corneliam De Falsia L« 9 ^ j|
et per totum. Et non nisi dolo malo falaom eom-
mittenteai crimini aubiungantur. Co^K eodem
L. %<>* And b« lbs 17 act of tbe 6 pMrtiamcnt oC
187]
S3CHAULES II. Proceedmgiegainai Alex. Blair and aiher$, [128
long James tbe secund officers ami jadges
irespassintr in yW otHees wiUuIlie or only
{iwneiscliable et imperitia in sc non est de-
ictuiD. L. ftiiali fl*. de variis et extraordinarus
judiciis: vU per Improdentiam in-
ter pretaiurjusticiaiu juris qiue dicitiir stukitia
L. si per. imiNTudeutiaiu de evictione et lata cul-
pa, c|ualiB est error iuris et iatua-temeritas, iu
crimiualibns non equiparatur dolo. Clarus
quest. 4. num. 1. precipue vbiagiturde pena
cor^iorali, vel infamia. Glossa in L. ac-
tionibus in verbis oon etiam ob culpaoi. ff. de ju-
ramento ut litem et quelibet causa et le^is I'a-
tua temeraria imo bestialis excusat a duio et
peoa intamie. Farin. quest. 9 per totura : et
Ofunes decores, et oona fides etiam ex
rationibus irrationabilibos et tcmerariis cau-
ntur : Non solum in iis que sunt a jure per-
missa sed etiam que sunt de jure prohibita vt
homicidio falso periurio crimine lese maiestatis,
ibidem. And tbaiifoirtemeraritie in itself can
pot be ane cryme vples it be takin copula-
tivelie witb wiUulnes quhilk is snbioynct in the
act of p'iiament not alternatiTelie hot exigeli'.
icklie as the 27 act of king James ye tlirid p«r.
6 partiall malice or iqniorancie is'takin copii-
lativelie and ar joy net l)othe in the rubrick, be-
ing conceavet wiltoll and ignorant error of as-
^sors and in the body of ye act notwithstand-
ing the designatioun befoir in thaise wordcs
partiall malice or ignorance falset or ignorance
ar y'eAir joy net in ane word the said falset
qubilk is subioynet ef\er the alternatiue of ig-
norance or falset and repoitting l>oth et idences
that ignorance is taken copulativelie w't par-
tialitie and iuipoirtcs only wilfull and partiall
ignorance and falsett and noclit simple ignorance
end temeraritie quhilk in na law is pwneischable
in respect qr' of the dittay can nocht pas to the
kaawlege of ane assyse becMie in ane alter-
native sense, disjoyneing temerariouslie from
wilfullie it is absurd and irrelevant to infer
the payne of infamie, against honest men
quha hes done consciensciouslic albeit (gifand
and nocht grantand) erroneouslie and in
ane copulative sen's my lord aduocat will
nocht sueir that he nes iust reasone to
persen it since he bes dyu's tymes acknow-
{egit that (in his opinioun) this panneli
hti done iuuocentlie and accoiding to y'r con-
science,
It is alleilgit farder that temeraritie is nocht
relevant] ie qualifeit be the allegit iniquitie of
ye panneli is sentence because in law non
qucvis ignorantta aut iniquitas temeritas est,
sed quando jud(>x rcsistit jurt, actum a jure
diserte prohilntuin faciendo, vel eius precepta
sine ratiuuabili caua»a negligendo : doctores in
cap. dilccto de sententia exromunicationis in
sexto i*tqaundo judex constitutionis temerarius
^t violator. Cap. 1. eodem, Et quando
sentcntia fertur contra jus constitutionis, non
aotcro contra jus litigatoris Cod. quando pro-
focare non est incease. L. S. Nee quando
enratur in facto et ex causa probahili, quo casa
prdato Bun irrogatur pena, et si fulmco gra-
Tissimam excommqiucationis ii|iustt strioiieEit.
Decretal. De sententia exconmnicatioDis, cap.
48, vbi glossa in verbo . prvhabili affirmat
errarc ex causa probabili, qui errat in proba*
tionibus dubiis, quhilk the law intorprctis,
quando reus non est plene convictus per COB-
spirans ti>stimonium aut onmimodam oonfes-
siouem facti ct qnalitatcm. Cod. de penis.
L. IG. And in the act oi' parliament 1478,
q'lk is the grund of the <littay — ^nocbt cverie
acquittal of trespassors is qiialii*eit wilfuH and
temerarius hot qnhan thair is noCtor nr ma-
nifest knawlegeof the trespasser; and noobt
with standing yr!of assysors temerariuslie and
wilfullie acquittis tliame Qabilk can non qundnrt
aganis thir persones impannellit becftus the
verificatioun adducet be my lord aduocat wm
nocht of the evidence as importeth in tbe k«
notorietie lieing only ane qualifeit confrMiaia
q'lk cannot be captiouslie diigoynet and ia moir
a deny ell than a ooniesaioun acknowtedging
the fatal itie of the fact, hot denying* the forw
malitie of intentioun. For in law, Notorim
est quod set»e aperte in ocuUmi iagerit et noHa
tergiversatione et causalione celari potcat. L.
sed etsi uu pill us. ff. de institoria et actione.
L. palam, ft*, de ritu nuptiarum* L.
if. De verborum signincatione. £t
doctores ad eas leges : ^t notorium cat euoa
oianes sciunt qiuindo nuUus est locos inocia*
tioni ct cuius vniverste vicinias populusteatia apt;
cap. cum delictis filiis, s. presertim. deorat. dt
purgationc canonica : cap. cum scelus caoa
prima. Quest 1. Dammoderius in praxi cri-
minali, cap. 10. speculator de notonOi per la-
tum. £t quando reus ita iu obiecto flagitis
deprchensus est, vt vix ca que comiserat Be|
suliiciat. Cod. dc penis, L. 16. Et
suflicit quod factum sit notorium nisi
etiam siut qualitates. Et non suflicit quod eon-
stet lejum occidissc, nisi coustet etiam qiml
nulla discussio vtl excusatio cotnpetit leio %M
minus punii>ndus sit, potest enim- fieri vt (
dtTctM sui defcnsionem. And y'rfoire
ye quahteis q^rof the cryme cousistis, viz. .
James Gordoun intercommoned wilfullie i
wittiuglie of foir knawlege and set pur[
knawing the meittin*^ of the rebeUb ana tiyil*
ing with thame for toat efiect was nocht oqa*
staut to the assysors be the paimallis oonfts*
aiouu or vtherwayis Bot in the contrair Iks
panneli James Gordoun excused his material
confereuce with the rebcllis, affirmeing pse^
bablie that it was nocht wilfullie Bot as sin-
drie vtheris knawin to thame selffis- in the
countrey quhair they duell that he was anv*
pryset and necessitat be just fieir qui vaimi
cuderB in constanlem virum it cannocnt he
said that this panneli lies acquit him agahsift {
nottor knawlege and evidences.
It is lykwayis alledgit be the said Mr. Ib'e
as pro'r tor the panneli that the dittay is ea-
way is relevant as it is dcclairct be my loid
aduocat insisting only against this panneli iir
acquitting Jam(» Gordoun of intercommoBiHff
wittinglie because y'r can nocht be a dittay i
error bot ibr acquitting ane uottor tresps
of a cryme as the act bciris quhilk is the |
8
129]
Up«m a PrMtti of Error.
KH. ifiSl.
riao
wi the dltf^: Bot sa it U timt int^rcotnriKiniii^
wit: ' ' ; itiiQi takitt abstrecUie ironie >ei|ya-
tit: [»A9t Ira is nut a cfjnie ftnd id
144} vtrha mmt. That tuuie presume or Ulkl
vpoDe band to recept !fuppli« or iDtercoromci
Ciueae Marie: pari. 1535* act. GO, tcrba tunt^
iuckucii4 Lu dio betvl being Htirpr^^ci ^vitb a ) tending to fiteir liie ht^arti^ of subieclis to
iBUitilutle ot rebiHIiaqiiliimie Umy ktitw : And
noiwitltfcttiniling ihn^ knew tliame may inter-
teioe with ^eiterHU dbcourse and ar nocLt
DbleLH tn imtot tliaine wilbisullaitnes and si-
lence and be a ftKilisb nyccfirs to tentor yair
Ivves And ni la^v wilfumes beiog-lheessennail
AfacAce »f all crynwa cannot be sttp^ieat
A^Ome thattie without irretevancie and absair-
ditie. Ciiifii lualHicia propo«itiim ot volunUi!9
di8tin«(Uit : L. ({iii tntnrie* fl'. De furtis In-
•tittUioiijhus de obli^ttonibtis t And in :i)l llie
rrimin:dl cdtcti^, and iDtordictis of the law nnd
prmj^matikis and itatuiifsof all nationes dole and
wilJ is evir requyret and pwueinhct in crymca.
I>e furtis, L* 1, ». 3, f bi iVaiis. L. 5J vbi Toiuntaa
et prmtoattunif L. 47, s^ 7, L. 2d, •. *l. librani-
la, L, 5, s, Q. Vbi dolus malus. Titulo, si is qui
nenti) Liber jusaus erat corapissc abquid
liminarm rerba sunt si dolo [italo. ff.
de y\ Ixmorufy raptonim vbl dolus mnliis pa«i-
•im. l^% «. 8 ct % L. 4^ a. 4» ff. De in-
cetKliis el roinaf vbi didtta inulua in fronte
«dioti ; et liluji ibidem. L. 3, s. 7 ct 8, vbi
Mientja tt priidentini et L. 19, b. 1, vbi data
opera, fT de ininriis. L, ^^ i. vbi afteetus ex
quocrimeD conutslit, L. 11, vljt do|ii!4, s. do
esli-aordinaniscrinHiiibua %'bi ilaU opera. L. 4,
9i miDius. L. 7. tf. De sepukhro vj^daiu, vbi
d#liia tnalua in Fronte edict). fH. i>i? prevarica-
tione, vbi notio verbi importat doltim. i\\ ad
Lii^em JidiMin tnaiestaus. I>. 1, vbi dolus de^
litiitionem uiKreditur. L. 4, vbi quater rejie-
titor. ff. ad Legem Juliam de odulteriis vbi
acicrttia et dMu nmio jiin^untur. L. 14. vbi
Cunvilinna et dolus raaUis: ad Le^em C'ornc-
liBm de fiic^ariia vbi tlolua nia]tii» in iniuo; ant-
muB, s. 9 ; vobuitas, L. 14t fiiH>nk% L. 10. ad
Legem Cnmeliani. d« folaia, per totals g, ad
Legem Juliani d« Annona. £t ad iJfmtx Ju-
liam de peciiflatOi ct ad Legem Juliam de »a*
critopiiis, povtm. Et ad l.x><^em Juliara di* pla-
gianw, vbi srieiis et dob mailo. L, 6, t. 9, Et
I iuniu
aid ienaitii9-rmisultuni Turpilianoriim. L. 1
vbi mm^% »emper apectantbi, 9. 3, el 5. et in
mmmib^Bm iot«nticriadc»lfisantintelligitiir,aiit ex>
fntelllir : *r qnnrum bononini ne vis *iat, Stc,
^d Aeliumat q'lk is rrimen gcmerkum H mlu
mpm^m^ ^hair ye occurence of ane stmnge
caioB qaadtvtis not to ony perticular faw i«
defyntft <* pea- dolum.'* ff. 47. »it. yO. de stel-
lioiMtu, et eodice, iiadera litulifl supra citatift*
MarcvM Otafiiaf- Cooalio 88, wiinc«»<«9 that ye
^j% «f |nngraietlce» sgainti crymes, et a/r-
€^€t the recTeptingof baukf},issp^l4Jt30a menU^
Of frtlflillie. And in otire awin aetis of p^lia-
:««nt doilfia or \\dfu)Bea li ayer ejq»re9sft or
iinplyit in woii^is, deaotttiig it aa (ihat nane
presume or tak vpone band) ** qusc veHia sup-
[«oniint doltt)0»/' Ginrba C-on!*trio 28. Quest.
m\ FarriBiymii. S8. V ' ' c«dii fi, 1667.
act. 5U Tliat naneiY-c or monteine
«r tryst tfi rtjfrt e#t«et : thu u-niu la ^mpbalick
iJiipoirtiog wiU'iilaca, J<iUi. e, par, l&»i, act
VOL. ;
haitred qubilk implyi? ane wilful inttiulj
Jacob. Ct 1364« act 'l29i verba mn(^ cod ten
tuouadeclyneing of bis bienes judgement H
that nana sail presume nor take vpone band
And in tbe act 130, eodetn parliamento verb
oadem et act 134 eiirsd pariiamenti veH
6. patliatiieoto 10. act 10. verb
^^ 54. parlia. 6. act 17. verhu j
ttHieeiiitJBHaaBmg^ trilluHie: Jacubi i* par.
Cap. 54?%rlm sunt that oane raifie ane fray in
tlie hoiA wilfulbc: J9ci»b« 1, Parlia. 3 Cap. 37*/)
That nane recept or doe fauor to rebel I is wil*
fuHie: Jucobi 5. )«r. 3. cap. 5, Anent willul^l
tyre raising : Jacobi sezli par. primo actii vi«I
ttmo verba eadent: Jacobi & par. 7- octu 97, f
That nane recept or doe tauor to relieltiti wit*»l
tin^li^ or wilfiillic: Jacolii. 6. par. 3. Aelu 4.6*
Agunitt wijfuli umnteyneris of erroniusdoctrioes '
111 lirif* Jat obi 6, par. IS. Actu 164. verba suni* \
' Ml* that recepts or interteneia lilting*
ij' piene jesuilcs : be all qubdk allega/* j
Ifooes It is evident that ncknUa sine doio tt \
htniatein nocbt an eryine £t accipit-nda i
semper ^cientia eias qui piH>hLberi piJit^t ; ft d^l
nuiiiabbussectiuuibus ; L. in dilictiii; Caitfluii; <1#
aii\ilinin prestante ^lost delictum ubi sinemer et j
dolose, ar qiiaJitei^ necessr'lio requyret im\
criinine receptatiums. And v^lbir it is cottstan^l
tiT.tt miercommouLD^^ willinglie without ye qua«*
bte wtifull caa^ uucht be tbe ground oi* an
dittay Nor the ^eqi tilting of i
wttiio^Hef the ucquitttLig of ane trespassor, ani]
\it€ u[TOtiiid of tbe diiiay of ern)r jlnd the al-
tei native coneeptioun of the act cannr^citt ito<*
[lorrt thai lulflipminonin^ wktinglie uithoufj
wrHullie issiJM^Ktt to lyle p^teis of ansea--
pitall cryirie becaii«:tlie quabieia witttngfie in^ ]
wiifullie ar to be takin compicxe as tliay
taktn in all criminall atatutis, and the impro^ <
priatioun of ye disinnctiue is mair vsnale aitd J
to]lerab)e Ibau the barbarua ab^urditie that j
aonld tnsew vpone ye takin;,' of tbarne separ*]
ateHc viz. thai ane cryme sookl be niiboat iti}| 1
and iotenttoun and tfiat Wahn* Hat and otbet
gutd subiactis, becaas ihay hati intereoitt*
moned witttiiglie being tsurjiryset am) lorcet m
to doe for feir of yair lyvcs sou Id be lyable ii|
eafHtall gitilt and puueischment aeetog aliitiilei
ptmientm facta capitaliter requh^nl «k>litni| \
vtmm ii eius naentio non fiat : £t multo magii ^
qnando impoaitur pena pro eo quod de Jura
comuni mm est pttnibile; aa intereommmiinjf
with rebellis ; Et quando de dolo aliqiio moflo rit ,
mentio. As in the act of parliament be way
of altenmliver Far. quest. 90 Num, ^'2. vsqn^ {
ad. $a. Et inteUigenda sunt statula pe*
cundum meutem atattientium. IViascant d«
generaltslatutoraminterpretatiorie; concluston« j
3a. Num. 4. q1k \& argued be (tie motive and
end of tbe legislatonr e\pre«!s»ei io Ibe alaiateft
As in tbe present caice, the reprcsaing of re-
bellis be taking' from th&me all manteoance and
comfbrte qnhuk is not prtiiMifct be iorr
k
33 CHARLES II. Proceedings against Alex. Blair and others, [132
that he was violenced ia his stay with thanM
Quhilk asseveratioun of the pandell beios^ pro«
bable in the generail and in the particular se-
cundit widi tlie declaration of some of y*
number ancnt the violence vset be the rdwlni
in schootint)^ the durris and kei|iiDg' in James
Gordouu sould haue preponderat ony slender
and remote presumptiones adducet be my lord
aduocat to infer the qualiteis foirsaidis. Quim
in criminalibus probationes debeant esse luoa
meridiana-clariores L. iinali : Cod. de proba-
tionibus qus reperitur canonis causa 2. quest.
vltima capite sciant And some of the best
criminalists maketh scruple to condempoe
vpone presumptiones albeit yaur war nevir so
niony and pregnant Etiamsi essent mille }
Paulus. de Castro : quia presuroptio non en
Veritas sed veri similitude And q'as the
dittay qualifeis the error of ye senteooiL
be tne notorietie of the qualitie wittiuglis
and that James Gordoun confernt with
ye rebellis knawing thame to be rebellis and
ISlj
occasirmnH intercnnimoniiig'. £t iutelligenda
sunt statuta uiagis secundum intentionem
quam funnalitatftm verborum. M ascard. Con-
c'hisione prima. Num. 9. Et secundum jus
conimune,Consiiio 2. per totum;utrationabilem
seusum cuutineant et ne videantur statUentes
ea ex abnipto siatuisse, etiamsi essent verba
impropriand : ut ne absurdum contineant et non
Judaice secundum corticera verborum, sed
))otius secundum veritatem quam rudem fig>u-
ram statuti. Et ne quis inda>ite daroaom par-
tiatur ibidem et nulla juris ratio aui equitatis
Iteni^itas patitur vt quoe salubriter pro vtilitate
honiinum introducuntur duriori interpretatione
contra eonim commodnm producamus. ff. de
lecribus ]. 25. Et |K>steriores legfes ad priores
pertinent vhi ogitur de interpretatione. L. 25.
ibidem. Et in le^jem committit qui verba am-
]4lexus contra leges nititur voluntatem. Cod.
de Icgibus. L. 5. et exempio graue est ita
l^troncs requirerc et innfx^entibus liat pericu-
liim : Cod. de his qui Latroncs &c. L. 2. in
ilnt;. And y'foir since the common n law anjij that thay could nocht half acquit him of in-
roasone rcqnyrrs willull dolll and omre auin
law be aue act of kii)S>: James the first pari 3.
cap. 37 puiieisches will iill recepting of rebellis,
the nileruative conccptioun of the 97 act of
king James the fiflt his 7 ]>arUament cannot be
takin striollie in a Judaik construction as the
law spcikis dcboirding from the commoun
straync of law and of all crimmall statutes
Aiitt the dittay iiassini'i' frame the qualitie wil-
f iillie is altonriddcr ii-rorefaiu and may quadrat
alsAeil aspunis Walter Hay and the maist
hrivnll suliiectcs in the land as against the most
gdiirio inlorcoiiimoneris.
It i^ fHnler cikit for the pannell be Mr. John
NisIk t thiit the diltay is nawayis relevant qua-
litt'in<r the pannell tu half acquit James Gor-
doun wilt'iiiiis and tcmcmriowie be the al-
ledgot iiuqultie of the sentence Decaus thair
verdict is iK^cht fals and temerarius hot weill and
warr.iutablie ddy^erit In sa far as the ciyme,
y'of James Cordoun was acquit being inter-
commoning consisting nocht only of confer*
f'nce with rebellis hot of a wilfull associatioun
with thame of foir knowle<1ge be try sting or
Ttherwa> is as is constant in law and be the
itraine of the act of parUament and it being re-
mitted to this pannell to try quhidder James
Gordoun had intercommoned wittingUe or wiU
linglie thay delyuerit that he was free of inter-
coinmoning wi&ullieorwittinglieoffoir knaw-
ledge of yr' meittin^ or cumming ffor ony
thing that was provem My lord aduocat to
quhonie it was mcumbent to prove not only
conference witli rebellis hot thequaiitie y'of the
cryme ccinsistis baveing adducet nathiug to
astruct it and it nocht being constant to thame-
sclflis in yair own knowledge but the contrair
in the generall that many guid subiectis in the
places qr' thay duell hes* bene inveglet in con-
ference with rebellis without ony disloyall
intentioun or practise and ye first pannell viz.
James Gordoun disarowing vpone his greiC
tercomnioning wittinglie In respect of ya
verificationes aducet by my lord aduocat and
that it was not deny it be James Gordonn that
he spake'wilh thame and at that same tyma
knew thame to be rebellis It is answeirtt that
yair meaneing in' acquitting him of intcrcom-
moning wittinglie was not that tliay said that
ho knew nocht the rebellis but that thay fand
him ftie of intercommoning wittinglie aa h is
takin in the-act of parliament in ane copuli^tiTa
sens' with wilfullic and as it impoirtis a vdiiii*
tar ingadgeing in the companio of rebellis of
foir knawledge knawing tliame to be rebeHia
And the occasioun of yair meitting qlk is tba
only meaning of the act of parliament and of
v' delyuerauce conforme qr'vnto the coonsdl
jies dismissed without censure sindrie chal*
lengit for reccptinff knawin rebellis Aad
namelie ane Prat and his assolzeit thame of
y 'r reoqiting wittinglie or wilfuUie becaus tfaey
war Burprysitand could nocht resist thame And
^'ras the error of ye sentence is ag^praraled
in respect that vpone the sole declaratioun of
ye pannell they naiff acquit thame and oon-
sequentlie done quhat in thame lyis to infeil
and emancipat all men to intercommoun ypoiit .
hoipe of passing frie vpone thair awin deda^
ratiouu that yau* intercommoning was fortute
and against y'r will It is answerit that albAt
the pannell had nodit dedaret and asserent
bis innocencie thay micht haif acquit him The
cryme and the essential qualitie of it BOcfai
bemg provin vnto thame. Quia actore mm
probante ahsoluitur reus. Aod nothing baiog
vset to verifie the cryme hot bis awin dopo- .
sitions quhilk he qualined confessing intetcom*
moning with the qualitie of fortuite and na*
cessitate quhilk exniattis ye cryme and impltoet^
lie denoitted in nis depositiyones be thaiit
wordis that they come to him to his awin riot
and was yair liot half ane hourflb' and had bo
discourse hot of ye lane of ane pistolet quhilk
Mthe in his depositioncs ony oommerce with . he refuisetand tliat they come to ye hoasaq'r
Iktme and pobnctlie in judgement afirmeiiig* he was at nyne iio'is at night bodin botlit >ttM
upon a Proceu 0/ j
t5fm:*;\vltli ^TTinnnnM and ivith the iiumWrthiit
K» ^lioutdiinrrer oppose iKame All
<J'ii uices iih|K»rtetli surprysi? aiul
rioltiwcii i el iiuius nif'tus qui poleiil liilere m
oolistaiitem virum : q*lk hequalitie»J^'Vfk'r ex-
firesslie in judgment nffirmeinqf vpone Uh ^rii
aatlie that ye lUtrris wjir schoit anti y*ihir
txmi'csisii) qi)ftl»fica|JH hod Mhh ^cinili, Balet.
L. 1. DurtK 43. Coil, rie confessio. FariQ. Qufst
iW. iitMti. 149- et 16a. Mt precipu4» in ii^
vpee noil ftirii jurccomnnirii prolitbita ncc Jia-
Cent contra sejnti • ■ ■• ^ -f qnando
^dlilas atite j bus vel
(Ifesiimptiombus ; 4.^,.. . ..u,^. ;.,>ii conKtal
*le ddictifiqiiafii per conlHsioneni. Q'lk co«-
diliones qtjjKJdraiUs jire^uanttie to thf» present
caicc the qualitin of the surprv&e litin^' i>ro-
Imble in the ^^encrill, tind kimwln to hoirt* ucne
incident to n; ^udiectisuud in tlibcaice
ihecrymcbi . nl no vrhrrwayis against
the pRnndt nor he hh awio conr«i^imni ami
the iledar:i(nKiii of puinie!; vponc oalhe fnay
lie Riit^ ' ' . .' and informarive to as-
sy sonj <'d waiTanlnble be judges
i.d ijn*b'iiniuri) innncentiam OHe in aninio
<5onsiseit. Be ibe law oi God Exodi. cap, 22.
vt*r-'' - ■i-^-tino de furtis Hcfutcr. cap. 21. de
c» r cap. 6. verMi 1% ije uxorc kus-
jK<-,_ l» Mk? t'ivilelaw per tertwm in L,
tbrtr. ?. /T. de his qni nntantnv in-
Jamia ', • crbn innoccmiam : et Decins
16(S ; nil; :::,• i,i -•':r,;.|M;ii iJ ;.•',., r:i (iinil ITei
€Uni jtlf,ii:r Lit'" ; (jinu tlrju'insrsil iny s ,ib ariimo
ttatuf juramentu vm% de cuiu» anirno dnht>
tatar; L. 1. C'od, <le iirani<i et ahis ah eo citatjit.
ICt GfrvttiB Lib. 2do obnTvatiouum cntp. loo.
Im m cafnerd judicatura rcrerl, Anrl
fjuhair as the painmtliR inlcrconimon'mfr ^i^.
Sumr"* Uordoun is ng^ravatit in thai he advt»r*
l*risrd nofbt the wrXrol' ye scliyre of y' being-
in the cunt fit' that he hiui nn licence to inter-
mm mo u n u I » ' • • ' — f f Vn m h i m e an d h e folhi\red
thnnie not vi -I ery It is ans*rit that
the viarrnntl , . ut-e of ane s'reffis i*e
quyrit quhen ane pai'tie <br *iome caus intend -
etb ill riMjfer with rebellis and the irant of nne
^f jot be impnte*! to pairties isnrprv-
«it w:ir no necessjitie to odvertis* \\\e
niAgifiirtidM ot ye fet»elhx being in the cuntrlc
becailA tt WM nottourhe knnwiu that tliey war
maTin*^ up and dmm the cnntTie and the fol-
lowini^r with hoy and try ik incurabeul tn g^uid
jiidg'c« qnhen they ar of that number and
pou'fT as they may oTcrtnk thani Lastlte the
not ' ' ' " ' ' of rebeltis ar
<4ii I'tniu^' quhnir
l^t*MM> J.iiJir , S, .,; **;♦ ^^^1 ,j(;_
fjuitt Amiquhnirn*^ luih vittin^-*
lieand ot iit.r I u .^^ I ,) .,....,. ikbeeou-
■tont Iw and tobtrvidi'ncit
frtirii 111 ^ 1)1 the rebellin ai»4l
*Vr. I ourH^ he had with thame and hiK
iav ;t K'iir)jiiiiir m\A ios.tavintj with
thj !xr, and
Ui« ,ir*to hu
mi^iit I bo prc-
•umit til jctctg' so
Fd. 1681.
neir home hot of inlcntiouo to interc
fhiefiic In the house qr* he utayil hcini; ^nfpe
to haive bene the haHwur and ramlcvnu^^
nhvllis. It is ftus^rit that \m 1! i^l
bcirin^jtheoccasionuoflhairmeitiny, el
and subj^^rt of his oonferenre^ thctuJiu'it r ul the
relieihs and ihair eqnijipadLje and funuior with
armes thcit^ U»ot hia intcrcommr t
lliame was fortuite and |>assitie
- ' *' ConsiUo 36, in 6oe Lib. 3, ^ mwiv.
Ntini,«4. lU'belluH did non |
u^i -jin i»cT nicLuin ant coacte aliquid fadt
talis dicitur rebellio psissiua, \i qnando aliquis
recppit rebelles qui sunt pinres ut non p««6unt
expelli sine pericido. Bald, in L. deHcliii :
(F, de Noxialtbos. Fortheoocasinun of intercom-
moning^ with thame bis depoailioun bein
That it was nocht wittinglie hot he was myt
pryset inexpectedlie with yair cumminar wt4<i
that thay come to hts close and the house
qnhaii he was and the subiect of his conference
ileponet U^ him aneni the lane and refui^ of
I it the first tyme arg^uesthat he inter
I DOcht wittinglie and knawing that
iii IV vvLu- to meit and to cum to his close ¥cia|^ 1
It Cimnot be prtsumet that he %VMkl haif tndHti^l
^ered himseltf to no end and vpone no in teti«|
tioun of irenttie or accessioun to \air pmcJ
tises and the discourse of the rel»eliis th9^
«ecound tyrae in llas«jiewallis overbard b»
tlie panncil impoirtelh nocht iniercommoning
in the stihiect lei be ye quahtie of wilfullie
or utttin^lie For James Gordoun depones
'inly of bi^ liearing^ tliame relaile some of \air
doitiMis and deAig'nes hot not of ony intercora-
mnort'TititHin of discourse and it was nevir*
hard tbnt heirinjj'was ane rrymc, qiihen p*tei0i
dar 1. Its* the dislykin/BT of discourse,
if til ur nioir poweifuU and insolent
and boMiii vviui airmes asi the rebelhs war And
the bcini^ w'l rebeJIis impuirtiK nocht conTer-
siaiionem itiicitamt w^- -.-♦.' - .,..,.( ....^
et stricia ^ al ioq u i si s 1 ^\
non facit judicium .........
Farin. Quest. 52^ num. 19. Item, the plao
of the second meitting qr^in the dittay phicetl
anegritt presumpiiouu ufthe interrounnonin^^
«?ilfullie and consequent tie \vjtlins:lie It its r<*»|
tortit that most of uti the places iHutiir so ncifj
hiti awin house h\» May thair from nyne ho^ffl
in ye moirniog till nyne at nv*t the compantvi
qr'm he stayit his going to 6ed liefoir tlie re« I
bellis and i ignorance of the tyme of yair ryse*
tag eiinces, that his meitttui^ was not witling"*
lie foir intendil aeiiig it can nocht be prei^wrnel
that l>einj^ iio neir his avt in hon!«e he iv}dd half
appoyntcil a mcitUnj^ in so puhlict a place qr
his practi/es with the rebel I is iny*l havt* bene
iltM'Overed and that he sould haif Htiiyil ko fotnj
betoir y^ cumiug' in the com panic* of honest!
gcntilmen and etter y' cumiii^r ^oold haif bensj
•o Strang* as not only to atlord na svtpplic unit
not to l»e maid previe to yair way is and corre*l
ftpondenec nod con^ious of yair randiTons and 1
plaoes of recept ns he hcs ilepotiet Bfit to b«]
i|pior«nt of yair jfoinjf ^ ^»ed and ryseing"
quhitkiacomuiaun^uid fcllowsdiip cau no
iS5]
S3 CHA.RLES II.
be fiCfiimet iroles be Uiil disl^'kit the com*
janie uul mraoget bifustlfF iVonie thame
l^m ibQ Iyii44^ in one c*Ua liner u't rebel lis
fji^m not 8o mui--l» intt^nit h iuh\ f;iuuli»riiit^
, w't thtttne lu tlie si roftme^ kn^^ii)
441 Y^ tiftatysu'rs tuu tmc^ ciin uul l#e
#g)^iivvtiUU trtifii llje {lincii ii^ ^us^ifct to U*^
bttirU>ur iif reljejtis becjitiis it w«» iio' \m vfun -
I iKitid to lite paimrjlis lUa Vi: Ituilfr
' lniili» was !^4.i a Miu^ .1)1 1 II not b
to Ibiiiuesf'ltfis inay c^uld not hiui ik
ground ui prt>tiiiiii(iito«a iiofne it i
vdag the ^>uonel iW^uutt vpuii Uh
Iba* iic kjiL'W uot q'r tLe rd>flli>
tllftt tUc ilOUSC Ol UUn-M*^-
pTf*: .ou^e qr'iltav u««i tu belmr-
'■ tci«|:s ti4^ilk»nMI«*3i
uoir vi'^oit a& ttne
vin (juilt lM.*!ijijs thair
- i'uHt iisaysii* itoi lun
^Hnc M man («)'lk
) and tliiit bf melt
I A lid t \tc A>s V t^' c<^
bmudii ^s m%e
PraeeeiiagM aguiiut Akj. Blair md oikert, [191
boy over quhoroe James Q^wdoiui Ind pilvcr
ntnl qubumtf be micbl liaif Arot fiirih «t aoe
Htnilow nr |n'irat way whence hr niii^i baif
s«*nt him the relndbs niadtrrtan«r#' -vjuI lAiriiii
«>< c-iMuic iir iuiprolmbht* supptmol i ' 'i^
ovMc^mit that yftir uas any wuy in ^ mm
Uvv iii:a iu»e boy niy't Kaar bcor Ivt ibitta «
thrJ lluiir T^ us ony Ikiv ^uboaMr JacU4» OonbllUI
Atui a Qocbl beiti^ f«rc>i»uiiie-
lis who liad »A li^reai rcAsona
ivc* and quhu lor ^mr awM
Hch«>oLe durridt, wokl Uiicbl
uud Ui> noUor cxtn i
and (av*.M.n... .,♦ ,
pri
^vriu conlesN'Oun ii
'Wasdouc m iiw avu:
occasionaihc wilii lit
ku«^vv bini out vi.
fuFQurar and camplici- i>l i*,Ulli& as tiiay wiU
depone %|ioney' great oalht.' and inaisi of ibiiiue
Md II* ?ir twjiie or bard of him JieiA qr' ui
\m tntLrconjiaoniauf u iitui;rhe M^jtiH actie oi
yi^vV tjviMie qaal«;itad in thai
tif" r.oi'ye, bouse aad the
eoiiij^vii -J .1 I he was to 0]»[ki«s43 the
Fcbfib!* Ami < I oi a«e boy lurth be a
privf'i Lvi.i V aiid qu'by gaue Dot
ad I .'ijis \mau^ yiurq'lk hv
my ._ :t.iir goiug lo titnl or eitir
qnhen (bay w«r a&k>i)i at lei«t my't Iiaif oli*
aVau the way (bay hciU and raised I lie mm*
ti-ie It is atis*itt tliat as bis coai^i^ticc ie» juKtIie
excuifrct (jb ^^u^iimi luelutn 4]in p^esi et
debet cad ere in virum otuiatatiteiii ; lii^creV. de
ii» (jui %if metusve cauMi : Cap. 4. And in Uie
laiir ctiamsi dod sit vi^ de facto, aec tiiitiB;,
timor eliatD violentiie iut'ereiMkis jtistuiu iniert
iueUim, et vihub aniioriun, «t^i deleieiia lis
nou viatur. L. a, ff. de viaritiata; Giarba
COD8. SB DUO), 20. £t co{tstiUJ«i trlr eWj^t
jfrudenler luiuus iDaliim, a^l ini^j^iris uinti peri-
culuui evitaJidum: €*?% t "■ ■ ' n in ma*
triinofiii coDiractu inicr 1.4. lie
^riticr roa&uue U\s n a^aitiiiL
thaiiiebe way ofdeid t^ !c Be-
cans ibe iimtgmarie it di<ii.v
is uol in law rtqiiyret ot ^ymd *'
ure nol obleist to titntit God and
lyves a-^Ttinst rcbt-Um rolvij vaiv wur i;ru«a-
tiiiauce ot advaoiaicr! qubdk uas not Tonr
disperaiUc resolirit and lodoublit men ri/,
Alexander Leith and NathaiiiiU Citirtjoun w't
yatr tua men bodin all w't }(wa«rs aud pis-
iutettidlKfin^ loo Mi'iin^' for fuurt? honest meu
w:; nim and unc fiUiinnit trew of sicr-
V. albi'it Janu-9 OMrdoiin bad bene
Iuk ' tt is tiwt c<)u*»!ftntilat be bmi
pii\^Ki ii» winkthamej/irTifcw*! bim
And bj.i.,,. : <.jie mad lo expose tniuselii Ui
fmiii/eae UiG buto of jJiadokttbi i||atie LVem aoe
timd b«
i I iKit^ >%**ybiiii aaa
1- ..u^«M< ..^^it^etitbe ibei
ii rey tti ibilow tbaiuiu %i^lia
i^ti, ., cMf 001 quhat%%"v ih.iv ha^i
La&thi' q> «u» tb« aanyfio'i s ujbtv
tcinv'funoiis proci;doV is c , ao-
quiti'UjL; Jam«'S Ciordoan connair tu yc ert-
fkncre'^ re|}re.s«aUit be ii^y hitd AdtiiHHii aad
vrgtft frame biii a\%in depoiiitioun oo^iorisuf ^'f
\nUi Ukay %iar obluitft ti» bate jud|f«>d uotlnag
boiiig prcidiioei to Yeriti*? that be waa Ibroii
aad ftioaflyfat and that the durrta war i^iooia
It ta :ii I n'r^Lr not i^o injioii
jUil^^L^ n'lrUa. !>♦ act TO*
t iiitnii the KML;li&cbe U«^
1 itifidil not lu ^strict atid
*»M II iJn-1 ijii^uuiL uied^il tte hmi lor b'ia> do
fence be otiy fiber testiiuunie nor tlie kna wr-
it^ ufane a«&yse qr^ vulo he was remitted
and quhan thiy war iuclobet the in'Shiiionir of
tiia t}r thre of yair outu^H^r ud^bt liaiie b^Dt
aiip gfuid warranfl to the rest to acquit tiiio aa it
WAS souie of ihame baveiu^ \«it)i' s-vc-d toyf
Tvsi that they knew pi^obablie of ^it |f
durris ivar scboote and tliat J 1 > iloM
wabi have reteire<l himM^lIf bot u<^ KUiycd bf
ibe tfchooteii4Sf of the durris Aim! idh*-ii ygir
te«ii lUQQie \T aa only ^ audU n ai 1
of tbaise qubo war pra^eot tii
EDay bequarrdlit atKWcil a» Jait
uiilfbt baif bene aue iiiidicienl 1^
1! " - since tbase thai wur pruw u* tj
1 only ^viiqi^' and was
|*uMt...iui, iaiawlegebr-^- '^ ■'■hooy
of asMciaUoun or 1 *niQ^ w,
n^baUis and in the Lv. l^^.^imTuimi
di(u tacit preaumptiofit^iD, quo: opomliir
fiiiii:^ i:»!i?ite probiiiiiU traiisectt in adiMii
in uaifiUBfl
u ewet biic«ip
iuitur. Uia^
a 47^, Viquaad
ie!»tibU!i.
dKiM'iiifi probduonitf, '
mniicntmn Jtid«' js
iibiu!! de a
pi<»i);iiiuMu tiiai. !«i wirtKS^' audi
tet^liinonio of !•< number waai
nicled with tbi> vtkiwiv ^im* 1 ■ 'v ' rebeUts 1
scbo<»tein'^ ail iba 4gc»n:^ liny
knuwm to tinfcm^aelffiii i.'-v .m.. |Moceiilel
M
157] upoti a Proce$$ (^ Errar^
^ftir-nuiiiber AlUeit lhayt>e oibi iyed id law to
yu\gc wUiQiHie MecHudum aliefiutioae* et protu'
iiowt boUi (lecaus lUay nr wjtneis' anil Uecaus
&lbeit in tlii^ caice uuty tbe law n^iikjji a ilb-
tincuoun oi* conscU^ncse oq publicl ixirorfDCt l>e
»Ue^atume!» ami r^ltivftiit pr^ili^tion^ as the
ik|>u*iliuna of tua witness' of a deld aud ane
vlXu?r privai iufurtpet be aoc propper and in-
iBStin^ koavitege tn tcriuio pcctorit As quIiHti
liie juilj^^e knowetU il^t uiiueBs* de|M>DL't and
the ctiutiaii- \& www Ju tiiequhilk caice be is
t^bleiit lo judge iecundum cmtscuniium piM*
^ftm ei alUfiUia in auiHbm ^cveryvies iu crt*
winuitbiii the ItMf is an le^tdvr a^ iiot ti> vrgc
nnyjiid^ U)4klyii«r u{;;a'Hi^t yair c^u^'ieuce
aecitriduiU venpoj|)ioiii'«, m»i mnt tiptoiii
jurM vt conresiiMt tjit-ri irt qurdiUitum^* Ami
thaii'tbir Ui<; i^iuuialbn delyu/er4i)<.'e ia nm^i
ju#t, aud f}roc3c:idis %pone aU posnilUe aiul war-
raatnl^le |[i;;i-iiridi£ qubiiic can be iiiiaj^ined in
anc caice of ilila uiUire :fijfi.^l||p Aual Li icitiouo
of the imnt^lis t^rmi\tmi0fm fgMk m i^L^v^ i«
lodiviiMbiL'— ibe |uiiuie(liB p99ev^^ t ; i m i . t viwmt^
liiti ;;ni o»tUe— ibc* U^tirnouic of
Uiiciiber admifjicled wiib yV au.
in the t^enemll au«ut the fHt^ti^ 4if ye r* beiiis
and iJj uocbt 4>nly omUiMraie |p ye general!
ipouu^J!^ ^t'Uw bot to ye decisWses of ye niMSt
IWutJtis judicMitfifeiii and juritiC4Misi litis in the
Jyk caice ** de reC4fptati£i»e immt/>rmtC' .qlk is
f roquiaitjie occurreut in Uaiio Maritf^ Guiarba
iofitsmea aoo tauQe at}, itMbilk will berve tu
viwlioat the panti<^llis delyuerauce frome bei^g*
io Fniu^tjts is i^beUit JSjK^cies facti vmii
Hier. iiaro in area caropipi uuimni trabeus ctiin
ux^c t't iiUiS bauuitoruiu udventu pcrculbus
cuui fuerit f>biirm4iti* arcis Q^Uo,bauniti lutein m
liortuiu itj^r(j«^^i tiUain butoni^ cum nu^ice da-
|]ftheiidiuit. Hart! abducts infantis metu per
eoisuB bunuitosj uccvi-f^in jub«^tf a qnibus, rt's-
tiiuta liliHt obuixe ri><(»iii^ est vt eos qyidatici
iienuiicio itonaret quippe id euin facultatis a
prorev;e abtitiiiiaie se ce rto «>ctre cbcebant* Ne-
gautt baro bauc lie potestateui A^beri* ; veriAOi
iie ea re »e ad prorei^tjii litcras daturnm polli
cetiir : tuiu deinde eus bref i ciuiia reiiectoii di-
iitiiiit, Cmu in qticfttione crimlnisa tisoo Vi)raiu.<i
^ssfjl, conversation is ni milium cum baDniti^ iaita^
el auikiUi iis^ prf^ttti, pro eu Rrguit jurkci^DfluU
lug tp lull all«>oiiiiofitiu tiavlica cum furaaticiiL*
contarsa^) d^^tuin non indicat, cum ni^i
4imnit tuoplex etacciditfiUilia conTersatio mere-
atnr peuiiii, oec csdtsm »it ratio que iu teceo-
latiniie favore vci aiuaiii;. St^aiindo, recspiatio,
quoi doktta ei vd oittluia fiaann aoq est ; f jcnam
von ipenilur«(qiioiltt«l£iiil4aiiititieris tostitnoriis
let vfif iiig (vripnaii * auikat el prwiumat' qg^ ftop
^nupt. dolum ^ tJt-€ilelinc|uenlem ai>socia^epcr
li•dtbctlUll iMvUi^i :id luaUiQi sit; proindedig^-
lMSfitllaudet|«iiiuali vitcuidi causa banniiDui rc-
OBiftati pix>ciitioa oTimqiie qtiicquid probibctur
oon prQptercei>edad eviiandiuiituahmi uoaiUa-
qucat traoagrefliionctfQ ad iJlius penam,i^i finis
iliiusDon violalur TertioquibaoDitoseoacle re-
ocptat punieiidus non est&iexpellereeotinan po-
liutfdKK|U£iiui penculosquod^innliter contirinat
llMUmotiis, cum uec teacaliir fkiiii(» ced^se el
A«D. 168K USB
illic eotfi reiinquere ; cjuod astruit testlcnooiia e( \
duraute filiuc cartjeratiane : omn' , r -
Hioneia presumuntuTt et justiw < ^
hi iiborubi per^ona^ iicc lis de lacu* rM.t: tu-i^ti,
sed miuit sufticiunt »t cuacte rcceplet, Tiuvpf
nimiruin viakruiit! in fcrendtv infer t iii^lmn mer
LuiHt qtiiu aroiurnni vii»usjimuni ujlcrt inic^u^ti"<
ti si defcreiui ii!»U(m vtatui' et paria »uut coacte
acta a^it tiiiiore Ciiactliinis. Bald. L. ttovissf^
tr. qiickl MiHi tnture. ^Iks gryndls quadr^tti^. J
uppusitelic iu yc present caice and tuore preg*
najitlie becauii tbe cr^tne of intjprcomiuouiu^J
in ifot so gi'cat as the cry me of recept q^lk ^ ]
probibeit in ye comuiin law and iu tbc cuic9 i
rdatcd tU^ir >va!> {ine voluutm* act in ^eiidtii^
fur ibe rebelJls and intertt*nein^ and ^uppbeiuif> j
of tliucDc qiiHuir u^ in the pvej»ent caice ibair
CU1I be nQtltii^^ qualllcid bot tiurpryi>c and iia
tbt^ former caice tTatberlie tetidei-nes is not s#'J
ij|)pr(^s$iu£^ C* tbc feirfoi" ane maiiK uvvio lyic,
it it» al6o fardel" alledtfil be Mr. Jam- '^ m<". -1
Uiat a«ing tbe pannell did convict J i
iliinn of Sbinobter qubilk is auc h< i •
iiKerconirooniniT And y'i *
)i*kiy to tuk bif* lyfc, ite;t[, , ^
suuH*t itat wdfallieaiid jq coninopt of bi9'
aia'Lie tbir geniibnen wald baif claoj^et iiiiH^ J
of inlercomn^unintf q'lk i& & ^^ cry me uqc ,
sluuchttT girtbcyTmct not bene rewled vviihib# |
liebt of y^^ awiu cotisicieuces and vpouc tiulB-r .
ciept inibrmQlious of UU inuocencie. Qnbiik !
iiitorTi);il:iuiin h tbat tbe bail! asby^c at ye ie^^f j
th*' iffittest pairt y'of war inform et be ii^bert
( " V ' ' i^ordwun Jindl||# !
« • 1 1 and be R^oberl j
Jii'iiijjHRr <i! * uHLiiui^: uc jtMiiLit Forbes Jln"Q*
tbcr to ye pei-h^^wp of AueliUnh^ be CoI«
\ ieso u e bn rg-t s o f A In r^ 1 > ' * m = 1 I Hi ce rtanc ? tber
y:ciit«linciiquha >v;u < ; t (Jolkfi*i lum^i
llie ty me of the ranr.^ i ad bcing^ ail got '
ing* to supper at uvf^ bouriv at 6?ia in m
itormie wynlernyU tie r^sbelliti beiwg" airu^iil '
men boddui feir of weir with bagbuttis pLato<T
JetUji and bit^laui) durkis and all vtber \vappou«if
iava&iue ^terit tbe ho|i$e and tmmediallM
eftii- yair£Atrie scbote ike durris sa that y V J
was MatJ»er e^ess iivr ii»gvess And in taikMl
y'«i* ane aerfaiid *d' Bobf 1 1 Celleis being witb-
out v^tm not ^uilet'it to enter ye bouse ibat ^
Di^kli Natber fva& yair onv et llobert Collin
Jm v^rvnndid ^offerit so epqmII ^ ^^ goe out
tityJ mi^te yn>r s^uidis Bol t>e ye contrair tbe
l^id*^ Ti^'i- n »i" r f-^' f"..' ^ i- 1." v%i|fuU Ui-
IwcHu l^t only i« ]
ibi$ pi i,-v,u. ..... .. . ^ i- -, tbat.ny
l^tfd Aduncat <Ud fudicialtie accuse iUe>iBiiJ
Jaii^e!^ (fordcHin Ikii^j ilian ^mi ve pannell KfMmtel
,tbe,p> t all ibut I buif*]
now , tne his ^lva^u
I ut'o'i kbui be v%aJd bt^il' l»eoe i
k khe reb<'llis t^emg* tbat he couid ]
41oU>>u oiit (thay being, mai^terriid of ve durrts) 1
ibnlJiie $taw quveilie to bis b^ii and knew not j
qobati liie reUiUi^ hy doun nor qttbaa thum \
went a M", ay in ye muirnini;' qubilk ifaga||nti
v
1S5]
35 CHARUBS II. ProceedingM agaimi Akx. Blairand othen, [IM
be presumet voles be had dislykit the com*
name and estranget hiniselff frome tbame
Item the lying id one chalmer w't rebellis
argiies not so much internes and famiiiaritie
w*t lliame as the straitues of rovi mes knawin
to ye assysoVs Item bis nieitintif can not lie
•g^ra^attit from the place au suspect to be
harbour of rebellis becaiis it was nocht rcpre-
sent'id to the uannelh's rliut yc house of Hassie-
walbM was :nc a plau: juul it not b&n\^ knawin
to tiiameseltiis thay could not haif had any
ground of ,presum|>iioHn i'rorao it Chieflie
Being the pannel depunet vpon his grit outhe
thar he knew not q'r the rebellis war recept
And coQs«*4Ucntlie Uiat the bouse of Hassie-
vallis was notane boose qr* thav uiet to be har-
bourct Nathercaii theuanneliis&igitiousues
and hi-« not tor corresfionUencc witli tlie rebellis
and fa\ouriiit|r of tliame he now-vr^^et as ane
pre.^umutloull oi hys awin guilt beeaus thair
was luitninrr jnuvin to the first assyse' hot his
awin coutesNiouu that he had slane a man (q*lk
was done in his awin defence) and that he mett
oocasionalUc with the rebellis And tlie assy so'rs
knew him not vtherwayis brandit as ane
favourar and complicv: of lebcllis as thay will
depotie vponey' great oathe and maisi of thaioe
iiad uevir senc or hard of him IteiA qr' as
his inti^rcomiiioning wittiiicrlie a{(;ainH actis ot
narliaiiieij; is |>irt>siiiuptivelie quhleieid in that
tie joy 11 eil not w't thaise of y e house and the
conip;iuie w't quhome he was to op^Kise the
rebellis And convoy it not ane boy furth be a
privat way or window and (|u*by gaue not
aduerteisiiient of ve rebellis being yuir q'lk he
my H haif done befoir thair going to bed or eftir
quhen thay war asleip at leist my*t haif ob-
ftVuct the way thay went and raised the ciin-
trie It is ans*rit that as his conference is justlie
excuivct Ob Justum metum qui potest et
debet cadere in virum constanteni : Decret. de
iis qui vi, metusve causa : Cap. 4. And in the
law etiamsi uon sit vib de facto, nee minie,
timer etiam violentiee iufereudui Justum iniert
inelum, et visus annorum, etsi deferens iis
nou vtatur. L. S, if. de vi arinata : Giarba
cons. 2B num. 20. £t constans vir elegit
pru(ler.tt;r iniuus malum, ad majoris inaU peri-
culuni e\ itandum : Covaruvius dcmetu in ma-
trimuuii cootrac^tu intervcnieiite : Num. 4. Be
<Xrittcr reasuiie his not atlemplintr against
thauu' bs way of deid is moir excuseable Be-
eaus (lie iiua{;uiarin n^solutenes of the dittay
is noi in law it quyret of giiiil subjectis qiiho
me not obleist to tempt God and laveiwh yair
lyvcs a«.;iLinst rcbt-ll.s voles vair war grit us-
siiiauce of advantage quhilk was not Four
disperallip resolvet and ledoubiit men viz.
Alexander Leith and Natlinnitll Gordoun w't
yair tua men bodin all w*t gwnes and pis-
tolcttis huiti'T Loo htronc^ f(»r foure honest meu
wantii.g til ami! aud ane vnairinit crew of ser-
vandi*! Ai;<l albeit Jaim» Gordoun had beoc
fuii-laulic-biouie, itis nut cnu^tant tl at he had
power o: ilie le^t to maklhamej;.'^»Mew't him
And soiild lihTbene inail to expose himselli'to
baif beue the butc of pislokttis iijione Item ane
boy over quhome James Gordoun bad _
anil quhome he micht haif sent furth at i
window or privat way whence he micht baif
sent him the rebellis loadvertaooe and cauiea
securitic ar iraprolmbtie sopposet it nocht boi^g .
con sunt that yair was any way or window sua
law that ane boy my't naue bene let doun or
that thair was ony boy quhome James Govdouo
m^ cht have sent Anil it nocht being presume-
able that the rebellis who hafl so great rcasoua
to be apprehensive and quho for yair awan
s<u:uritii} vset to schoote durris, woki nocht
advert that yair was no privat way or uiadov
qr*by thay micht haue bene surpryset and be
could not haif observet the rebelhs wayiain aiitf
dark inoimiug, thay haitiug gone away befinr
he uas awarris and conseqiientlie tberaiaeiiig
of the cuntrey to follow thaime was noidloa
seuig he knew not qiihat way thay had takia
LasSie qV as the assyso'n y'y vuwarraiilaUa
temerarious procedoV is exaggerat fibr ao-
quitting James Gordoun contrair to ye efi-
dences rpprescntit be my lord Aduocat and
vrget frome bis awin depositioun conforoae 9'c
vnto thay war obleist to have judged noshiyg
being produoet to veriiie that he was forctt
and neot's&itat and that the durris war acbooCa
It is answerit that assy so* rs ar not tK> mucji
judges as witness' Jaco. 6, parlia. 6» act ?0,
ci puisim in our law and in the Kngliscbe law
Aud y'ioir the pannel iieidit not to aatrict and
ver.lid the qualitie alledgit be him for bis de-
fence be ony vther testimouie nor the knaw*
lege of ane assyse qr' vnto he was remitted
and quhan thay war incloset the testimonie of
tua or thre of yair numlier might haue bene
aup guid warrand to the rest to acquit him as il
was some of thame haveing witnessed to ye
rest that they knew probablie of thase that ye
durris war schoote and that James Gordoun
wald have rcteired himselH* hot was stayed be
the schootinug of the durris And albeit yair
testimonie was only de audUu and of the repoiit
of thaise quho war prsseut thameseltiis and
may bcquarrellit alsweil as James Gonloun it
might haif bene ane sudicient inlbrmatioun to
the assyse since thase that war present thame^
siitiis could only witncs' and was nott to thw*'
panoellis knawl^e brandit with ony suspilioqa
of associalioun or intercommonio^ with the
rebellis and in the law Testimotiiimi de au-
dilu iiicit presumptionem, quie operator lit
onus plene probandi transeat in aduersariwn,
et si deuide aiiquod adniiniculum acoestent
plena resultst prooati'>, prircipuo in iis quie sunt
ilitfioilis prubationis, quaiu uutem esset hoc ad-
miiiiculum Judicis Arbitrio reliquitur. Mineii
chius de arbitrariisJudiciis, casu475, vaquead
num. V2, et omnes doctores de testihus. And
y Yuir spring assyso'rs ar not tyed preceialieto
the strict rculis of probaiioun Beeaus yai -ar
probatioun thameseltiis and witness' and Ah0
testimonie of some of yair number was irhwi-
nicled with the vsuule practize of ye reb^Ua ip
schooteing all the d<M>re8 qubair thay <
knawin to thameselffis thay haif
wanantabUc .vpone the tcsliuooie pf j
upon a Prucnt af Error i
inl^rcomtnonct wiib tiie rcljflliii at tua s^ucrmlt
tytiies b^ bis it win confessbun did nalher gcve
ftigne of EiriscaDl£tilaieat the t>me of Im
eumiagf nor made ony wairaeiiit; to his lua'ties
Id^es And zlt tins James Gordoun quhm
waapnunellit^ith fmrenianent iuLlovvis Vfione
the tbtirt of August and contioewit lo the
morne All the rest were convict and fyltt,
tnd this Jamefi Gordoun was be tUe iiaroe as-
ivs« (f|idia in>ijvictit all ye rest) clangtt For
the *iu]iilk the cotinsall did oirdanc the assyue
Vt he perse wii to the efiect be y'r puneiisch-
lut ht or terror hiH maicstms subieclL<? sould not
presume to jntercoinmoun with the rebellis
1 pone exp€ctatioun of the 1) k ifupunitie As
J a nie^ Gordoun fund !i€ tlie temeraiious pro-
reidjDg Qf the said assysc and quhuir it is
ailedget tbnl the said James Gordoun his io-
tercommoning i^ith the rebeUis was not spon-
taneus hot foi'cet in respect of ye schuitting
of ye durris he the rebellin It is nnsVit fir^t
That this w as proponet in the firfct proces and
• rcpdlit Secuudo thiB elyddis not the first inter-
commoningat his awiii houst- in KnokleUhe
' quhilk per $e was sufficient to infer his fnttT-
comnvoning wiitinglie with the reheilis, thair
bein^;: na sic ailed g^ca nee of force of ^chuititig-
of the dut:^i* at the first tyrae Tt^rtio the
farnvn h ^^trair to James Gordoun his asiln
f\ev< hainthe sctondinterroramoninn;
i in i Us grantiB his conlijri'nce witli
I the rtklliij his soupping with the rehellis his
I lyine^ in ane chalmer with the rebelfis hot
1^ D«ver tk word of "his coaciioun or schooling of
[ ye durris in all the deposit ioun and the assyse
? VfikT bund to eo^osce accolTding to bis aw in
t, confestioun produce! and Tsct agauist him be
bis maiesteis aduocat spectallie seeing* ye said
schuiting' of durris was proponet and repellit
I be the judpfe And quhair it is allcd^ei that the
I assyse hes liliertie to judge accoinJing to thair
«:onscience And that some of yV awin namber
I did atlcBt to thame that thay did heir be ye
repoirt of thaise that war tn the hotise that tne
I rebeHis did schoote the durris It is answeirit
i that albeit qV na probatioun is the assyse
' may judge accoirding to their pnvat con-
L*dejiccs» zit quhair probationes ar vset to the
■M|yse in judgement Thay ar tyeil to judge
HBiDirdiiig to the probatioun led and producet
^in judgement andean pot judge against the
ajmyu vpone pretence of privai knaw!edge or
ioonBcieiice ffor that war to destroy all justice
■yofiiUe 8eeing be the I a wis and adrg of par-
Immcnt all probatioun in criminal canss^
i is or dan it to be vset opponlie ^nrl in fac« of
judgement and the privat knawkdge cpihilk
! they allcdgje to haif had be the depositioun of
! some of yair number can be no excuse iQ ihatne
; first Becaus it is ^raotit that they deiK>nit only
I «r (tufiiia et non f j- risu Nixt becaus the»s
' 4]tiha defionet ti nuditu declairet yat they hard
the samyu fronie Kobc^rt Colhe quba was
maister of the Inne^j Hnb^^rt Dempster o4*
Cuschnie and Hobett Forbes brolbtr to ye
persone of Anchterles and fra Robert Colliesone
i^urg^rs of AWrdene und certain Tthcr gentiU
A.0. l681. in%
men i|uha war in Robert Colfies house the ly m«
of the rebellis incuming qr*iipooe bis ina'tei^
ailuoeal takis instrumentis and ansVis that Uie
tlecla rationed of ye said is peraones being lub
todan renin be intercom muning with r^ielli*
could not be ane wammd to the assyse to
clang e James Gordoun As it could nocht be
ane warrand to clange thaq|CSclfliB gif they ^
hade bene pann«lllt spcdijpptipg tlie said
house of Tlasfsiewallis q^rof IfliVtd Uobeft
Collie wQs maister was ane verrie suspect
place the samyn being grantit be the deposi-
tioun to liane bene vnderuie raarqueis of Hunt-
lie within i|uba is boundis tlie rebellis presumit
to find fauor Lyk as the said Rob it Collie
maister of the bouse and Robert Dempster fra '
qubomeit is deponent thay hard the said at-
testation n war both denuncet with the said
James Gordoun rebellis at the instance of ye
laird of Frendrancht for not compcirancebeloir
the justice to vnderly the law' for soirning and
opprcssioun committit vpone his tenentes quhilk
the said assyse could nochi misknaw thav
being denuncet robelii(» be the same IVez of
hoiming quhilk was j>roducel to teriHe thai
Nathaniell Gordoun and Alexander Leith war
denuncet rebellis And farder the h&n\ James «
Gordoun snd all the remanent geotletncn
being in the Innes at that tyme war altogidder
inexcusiible because it is granlit that they war
to ye number of fy^^ gentlemen nominutim.
by Vther geiititmen qutui war in the housse and
double number to ye rebellis And sua soulU
haif concurrit togider for rcFerence and obe- '
dicnce to his ma*teis kwis aitber to haveappre-
hendit the rebeJlb or to baue made warneing to
the cuntrey to apprehend thame The place of
HassiewaUis bemg within the parochin of
Aucbterles quhilk is ane inland pairt of ther
cuntrey and populus, and ane number of gen-
tlemen within the samyn quha aucht and-
sould haif concnrrit with thame for that effect
jyk as bis ma'esteis aduocat acceptis that p^rt
of the alledgeance quhilk beiris that a servand
of Robert Colleis being without was nocbt
sufterit to enter within the house that ny't
quba beinif fric of ony violence roy't bane
bene dircctit ayer be Robert Collie maister of
the house or be James Gordoun or ooy ane
of the rest of the genttll men to haif maid
waiming to the cuntrey Lyk as tlie
said James Gordoun and all the rest of
the gcntillmen being w*tin ye innes that
ny't ar altogidder m excusable because al-
beit they pretendit the schuiting of tha
durris zit efter the rebellis went «o bed in
ane seue-rall chalmeri thay war obi cist to tsc
exact diligence cc»n forme to the act of par-
liament Ik some meains or vy Vtn hulf ceasezed
irpone thair airmoV quban they war sleiping
or to haif ramforced the cb aimer durr with-
out till the countrey fsould haif beine ad«
verteised at the \cht sould haif waimet the
cuntrey in the moirning quban they went frirth
bol nane of tliir was done And qV as they
pretend Tiolenee thay can not be hard * Quo*
* oiam nuJluni fuic lignusi resisteticie' and.*
14S]
38 *C M ARLBS 11 . Proceedings a^ainai Ahx. Bhirand othcn, { 1 44
0f ttie Jaw * Mctu« nwi e3rt?u»at niai mefiif
' sit jostoimus, noi ettitn probnndu!i est/
Aod ill the crtmitialtfts tmtdes ^* quod conctiio
«tiftm prubula nmi oxctisnt niii slatifii pofet-
<]iiani qiiifl liberiilii* «st t» vi coAeliVa denuri-
cmvcrif* An U hn^netWxe c<mdu*Ut be Fario
qiit ' r.3J*, 39. -10, ntifi 4t
«Ai* r'i na moir pnnlr>neutile
Hor ' ^'1* \iQ^ uf
ib^r :ir*reof
tflt^%CJT «fl |r iriJi-v •■• kjHtlilk out
of ifiicfstiouri yak will nntl uf ane
tift^> f.t,fl .li^^! Am! 7\t <urhc as i«
pi J 2iDd a(!lis uf
p'h I iL ^ of all tf>ir
pretcnccfl JamcB Oontonn wns tnnist t^iiltie
add ecrald net hatie bene clatig^t be lb<' satd
a«T$e Nuther uf his tirst iuteirunmjonin^
agailist ye ijohilk yalr in nathing' alled^t bt*
iwahl i^'foirknawled^e q*]k can uocht ^cuise
liim of the law qnhilk only ref(nir«j knaw*
hi]' r* vR seciftid inter-
eiiL vvitliin ane niyl«
to I ■:-■,■.:-], lU<?
•ftrr <;r rnairl ni takirt of resistance
bot idl u^i^.. . - L wi!lin|;^i{?« fatniliaritie ami
. ttfectionn and mnin\ na intematioun or vndr-
9ien\r t(i the coaatn^y and Iveing a pcrsmte
aitspectcd and cakin he the marqueis comniU-
tjoun »8 suspect iMM nocht haTcbene clanget
^f mtercomraoninjsf qlk he himseW cotifesait
with all the cpinliteie and circtira '-lances aftnr-
Wd And {Tit the wilfiiH and tememrinns pro-
Aiding ctf ^le aaayse in clangeing' of him be
tmi pnnenfched lit alloi^ed and appnyvio it
Willimpo^rta heaviepreparatire to the tirein-
dice df ye ptibhct p€ac« and to hh Imdett^rs
amtnjfiue and oah'eie with it a prfK^lamtttioun
6f a fieirftdl lit»ertie to all his nm'l^ts subiectit
to fmenvQinniotlin ^iih oppm rcMIes in the
Bfligt ^blicit rebelliouD qMk eYetierad aqbiect
imild Mktt and dt^taist m re^piSt iv'«f aU
ilf» itidif fllMireinces cucht to be t^lH aad
Htm dMgr ItMd r«leirant and proven Le the
Wflll (iMtucei^ttd yeaamjii dtttay reft^rrit to
Die kiKWl^dg^ df tivenlib |lersoric« accoirdhii^
to ye a^ of pariiainefit And that allanerlie ana
Ikr IB iii« mmkytt o«n]»iatia inf^cto quhilk is this
duly poytil?]^. Ttm the ^ rttih y' probatioun
iiledgfd in ye dfU^ to half bane proriucet in
the first proces for verifiootmuii of that dittsy
a^inst Jamca QtmliilD was dr J net a prodiiast
at thift i> iw agfthls ym\ for that effect*
Tii# >o^ioe evMAewia thia dyet to ¥M^J
iMnir t)ie]c?ui of DflDember
cHinft the [If rtooes an pamidl la ifid wm*-
kmn fcr y> re^trioy^ aaiM Iff iday of Dtt*
mat j\
etmiher imtant rik mfmmw
•he tliou!iand tnmia For «ibf«fi€im ^t'iif
iSdfitptiint James Ch^ne of Aniad|^ mad }m-
«tfti« catftioiin fnr ye htirdsa of Lf^ntork Birkin*
W^f Pctt<'m«:if Mr. Mnffjn^ Inniif!T*den tbe
pVfd Itiaii <' f(k<i erf
Elstk and h. ^ywtttc
GeOTBfc (iJordtnin of Netrti
O^JItie of lilas&iche V*^ i
AWxiMitXer Keith wf l>il4Fii« and ih«? ^
under Kc'ith of Dufltitc betvime eh^
yeeulri^ of yc aaid John Os^ilvie ui»«l lujll
remanent paiwiftea vpon paniicU t nder ye jkum:
fo'rrsQifl*
The ppnsonea of aaayse wamat apud acta
ilk |»c'P0One vndar the pabe uf ana tlioaaaaid
pundts.
ClRU
prf'fi
D. N.
Iteipa tents ia
*^tnbrr» 1635 [•er
uW et Jiicobimi
iifatos.
Uiran'
Amjw'^t^ acxmael «f ErroV ContitMnrit tA y a
MorHethe IQlfistanto.
AUtamhr Irwing^ of Letitfirk.
Alcjrander Buneruwn f^^* Kkirk*
AUxundtr Abercr<fi i i kiaU«ig«
(jcttr^c Ggrdonn, ot ^ u.
TT7//d«ie Sattoun^ of ScheathyD.
Ororge Gordotin^ of TuUiecho^vdiew
itiArt Ogilvie, of Glassache.
Jiimet Scatonfy burges of Aberdeen*
Chnrl^t Steven Lixter, hurges y\^
AtcTfiniierKcUhyoT Duffus.
JIfr. MaUto:o Luuwiiiden buries of ,
deen, ^
Hector Ahcrcrumhit of Fctter-neir.
Dilatiit of ye error oomniittit be thaiiH; id
temerariua acqutttitijt of James Gor^miti
to Ooorge fTordocin of liOgyaltonfl in
5pe*itio ycdittay.
PcneicQr,-^\T Thomas Hope of Ci
knight barrouathis MaVis ^^li^^^cat
Preio^n in tkfenrti.'^ Mr. iames Bairrf — Mr.
ThofiBos Nicoltoae ytmnfor^^^Mr John N r«het.
The panndlis takis mstrunAtHtis u^
Hfttrie and jf'lesiis for y V cautioneris relicC
Itisdnplytthe Mr. John Nisbet » prola>
fifT ye mnineU^tlie reply maid be hk piaias^
ti«« adiioGat lit the last dyet of jis proeet
Tlcgtya Aitt«yis tiatker rdevMit ritw piori*
ttnTm re^mmm Mredi^ AtMueet Atid i|*r ii is
replyrt be my lord atbocac tJict maibing is la
be rvmitttil t* ye a^f'ora bot cnty to cag^
tinsea dll/^fo <|oKidd(^ ^if ^iicti wrhtis ail4
nratotioim xrwt ^bai^m to ilie 6rsl insym ll
bdsplyH that Hie Aetmetng of vg estttttlf in
Hqmmng t«i ninvrofis and noMe uuBwmfrym
h ooot tb^ flMnr io«M *mW eogsoiii «r iW
i|*ik h Tndenyable «tid is oWiniia m^ }txlB«>^
br wKy fam B«rt tlait lb ay aonld try <fii1]i<mr
llbedrfdiaitfiaiMooat fa tbe irst aaVr-^ v- ^f
Ibii cNwiH ta ypona tbame matttlt t
Inanrfwti^ of *n minr»f>ll hu irtiMt <p..
ofeiuis' ^ofie ta
rict »i . it uh^^umi
and r|ii^hi<
thf kiranki
pfT99ifteg gift paouaU ait 'ii€<)iui Wuit^turi
>*
mpon a ProeM cf Error*
A. D. 1
[1«
mlftilliebefaiiorftnd purtmll mcatics For
iJUbeik vpone the smme evidences sctiawin to
ibe fir«t BM^ff? It sMkl be fnml lliat ttiey Hni^'
•isquilati * it tliey finil tlmt
tbiiy hail iie ami tetncrari-
if Mnt poantobct lie ihe lun ni
gif ttisy beperswai ' ' *' ' i!«ey Imu n.»: f. us-
noerntlie and «c^ ynir conscience
aii itiy lord aclni>c. *^s af'kiK»'Al^*!i;^f f
For gif tlmysoiih) ^ mi
excuse ii ^^^ i'/tHu
nochtco
vpoaetlt
excuisei
ol^ tile u*
slrnvne
re ot tern
r l»u the
iiuatinqr tl«al iIk-
gniBtof igouraui en or h Doclit yc j^rmrjt oC
tm^oryaut ooil fault f>f ascyaV^ seVingf aocht-
wlthstiiuling the t' > ''y nxay Ijc
|iat to Hue If fit irns purticji
J^Dling yV fault ar i«- It |i lit :ii : ^ v/-
ted|fe Ami qtihalr as it iK iTplyeii w
«Au I'res et' inlerccjrarnoniutr prtHi"! ri,- iiH
iniii^ witliout di&tiiKiiotni qiiliiildfr
foir knawlecl^e or be Kiirpryi*e And
that ye law reqnyrins^ icimiiam it is imperti-
ncQt to BOperad pretcujitiam $ioce ibir kuaw-
ledge IS only probable be oath of partte i|uha
wald ei$te rodeftme thanieseltlis with ane
Otlh And be y*r impuuitiij to incurradge and
inlioldfn ftheris to ye lyk prartbes And
*ft»tr iUe justice repeliet the <leience pro*
for James Grirdoun that he w«s J*ur-
fryivd and occiuiidfiaihe a^dg^ ivithout
foerknowlfd^? or trystitia^ It is snt'rit y*to
thai ' rlinmetit i5ti7 is expres of
try.^i lo fbrtliie rtbellis And most
intcrpri'ii nu- re:u of the aetis and Vtez mmi
y'lipoiiit seiog without absurditip thny con
tiocht be undenitMid viherwaylg Aud scitrttia
in sens* can not impnirt a cry me ivirhout uiil
and ttiC«titioDti (juhilk ia argued ho foirknaw*
ADd tiocht be suq>ryses of tbea^^e rpilio ar
|M>wprful] Ajad with quhome puirteis nr
ntat to interteyne discourse or ioconsidp*
ratlae or TntihristianJie to be yVawin TnnrtJur*
aha lie imtalinsr robellis and pri*'
eiwiadeatit And the impWDitie f>
tiocht KtiA coiiftitlcrnhle &s the danger i4^^^ati
stibieetk qiiha may be invoWcd Ue surprp^oT
nMlis Its thousandia of thamc has bene in \e
Iftit disorderis Atid yair is not only heir Iht^
of fbe pairtie acciisft hot a pregnant
Bptinun from the rclicllis koawin prac-
^lort-T>'--- '-•-" --».— <is AndyepanneU
co[ti< ihtiv come to him
5» '^ — - , . ,!i;it he could noclit
■>'.' being bodm wiih pi%toUctUfi
< <ntf it is ye only ground of dit-
ii|(n«nf)i bim iiithout ouy vtbc^r eui*
lid nocht ha if lit^ne tati« mm 1 la t lie
Ing^ adrainided with the former pithUiiip^
tiouii And nJi cbrimtiaue juclge can candenine
A pairtie <H)fif«'«aiD{^ intfixtiinmonuig^ a^n^
ypouc
CQtildMiouii Kun qualifci
I flitliklad m hia fay or v
VOL, XI.
^nantUc ad-
1; prcsump*
tiouti and his great oaihe And the jtirf<r<^ ^n*
terlocutoV reprlling tbe foirNaid d»tr 1
l)C ohtruidet Bcvaits the justice b+
jiropper judjje of the rclcv.
ye lelevuncio qi]biddcr or n
ditl^y albeit releiaitt in lh<*
ildcr
s ■ - • '
dyttit of t-i fin
iiilcd^iog' ti ia
his j«ist dclenee and the justice sould remit 1
to ye knawtcd^e of ihe an^ise thea^ qualtteis j
It war absurd to think that he had repeTlii
thaine m irrelevant in law het'an** Ue h^a re- ;
ferrit thame to Ik; try it br ti
And qV as it ia reply it be to
ye quaUteis * wilfullie' or * >nr
takin altematiue confirme to t!i <
of the act of parliament or vtherv^ jms i^ imiui**
imply incr wUlinghe Tbe repetilioun of wit-*
tiiighe war ane 0^'="^' ♦"i»«r.i..<rv> Vr^.i tii^t y«
act of parlia m en t e i ti
dilaitiDgc of ye relj _..:.. _„ , ^. ^ 1 arao
in accidcDtall surpryaes as 10 roeittings pur|«j«
and that ye Urst dittay waa alteniatiue and
thaiae evasiones nocht alled^t and in ane at-
ternadre aense admittit to &e knawledge of ]
ane assyse and conforme jMyrto thair dely- '
uerance wiis altematiue 4^ duplyit for tlia
pannell tbat we repeil v> former oxisV evince- ^
log frome ^n&^ law ainl rcasone the ropulattuct
sens* of the act of pari iani ' ue takiflv
of witiinglie as it presuppo IJie Aoa -
we vrge my lord ailuorat i^u uv muik** in con-
science That parteis kuuwin to half bene stir-*
pry^tand vtolenced f'>r ■• • *- ■ '^ ■* Is evident
tbat mony in ye bit fl ^le force!
to g-eve y> purser; to . -u.. . c . .. sould bo
puneist capitallie for upeiking' wuh him wit*
tinghe albeit it be constant that it was ;tgnini<t
yaif will quhilk is ordtn^ in statutes and in tlio
nctH of jnitliatncot And the tautologie and
'jiitie of wonlis q'Ikia ar nochi con^'
le in wnsidcTatioun of yre cruell ah-
li^a'ditte or jaw sould vtherwayis he bmndit *
with and tlie exact dilligenco requyret be tli^
ui HiaTnent argucth net that ye qunlitin
<i .lid irapoirt tbe cryme utimercom-
li iiout will and intenlioun And the
^ I ne^hgence ami oniissionn of pair-
tii^ ..i.i ♦lib not relevanthc commissioun and a
i:T\me qnbilk cannocht 4io without a wilfull
ftpri vnu vfrrui* intentioun previous and inier-
I te act of cry toe ChcilUe seing th^
«u , J the rehi'lli,^ waft fmiecci«ar elilof
protcriptjoun and yuir recept and randievoua
HI Rolhiemay waa nottoV to >e magistrtiitii
And coii5(« quWitlie yair being hi the cuntrey
ncridit not to he tfvtiiiiul hxhtWe the aUematiuo
conceptiomi of the jndgcs ' ijf and of
ih^ abyyacss delyuQran^ be u** t/i iha
act of parliaineiil reuJht^fc 1
lioim / *
"as'
147] 33 CHARLES II. Proceedings agalmt Alex. Blair au J oiherM, [148 J
conscience tliay thopflit thamesclfiis obleist to j
conceive it And vpone thair conceptioiin of it
to ucqnit James Gordoun of iutercomniouinj^
uittiu^iie as it im|K>rlcs a crymc and the noclit
pro()oncin(|^ of the foirsaid defence v|K)nc the
disiunctive* sens* of the act of parliament can
not he obtriiidit Becaus the (littay ^vas con-
ceavcd of intercom moning g^DcraUie without
thease qualitcis And it was vr<^ct be ye said
Mr. John Nisbct as prolo'r for ye pauncll that
it was imtlnvant nocut expressing thease qiia-
liti'is proj>oscfl be hiiu copulatiue as (ho proces
will schaw and it was nevir doubt it that it
could be takiu vtlierwayis And (["r the dispa-
/itie of Waiter Hay his intcrcomnioiiin«i^ with
James Grant is reply it frome the difturent <pm-
liteis tiie aiic beinj; ane passen^^er the vthcr
resident in the cnntrey anil a Gordoun pre-
sumet to i'auour the relrellis of his name and
IV'alttT Hay bein'^' ane honest vnstispect man
and knauin vnfreiwl to Januts Grant and James
Gordoun knawin to be ane ilai^^itious man fylet
be thnmcselftis of slauchtcr and pcrsewit be
the loird of Frcndrauclit and put to ye home
for non vndcrlying ye law for soirniiig and
denuncet rei>ell and c'tcnit in the I'rez producet
to vtM'ifio the rebellioun of the rebellis with
wliomo he intci*commoned and tane be my lord
inar«picis and sent in choyncs vpone dilatioun
inaifl of him as ane perturber of the coinitrie
It isduplyit y'to that ye parrallcll of the tna
caices is i'nstancejtix) evince that the best subiectis
may be necessitat to intcrcommoun wittinp^lie as
>\ alter Hay without incurrin*f ony j;u;it or
pwnischment and y'foir the (jualitie wittinglie
without ^lillinj^lie cannot reJevantlic infer a
cryme and thaisc disparitels was nayer vrj^tt
nor constant to ye assyse And as for the dis-
purilic in the poynt of aboid the ane beingf bot
^iie passinirer the vtlier ane resident it is not
considerable tliease that ar resident i)cintj^ als
obnoxius to surprises as vtheris and the lust
fcir of residentis beni'j^ moir impressiiie and ex-
ciiv:tab!e Not only in respect of the imminent
\ iolence ^if thay had untymouslie bewrayed vn-
towardnes bot in respect thay souUl haifexposcd
lhaii!r«:e!flislolliediiyl:epray ofreliellis And lor
the dispwritic uf yair lyfc ar.d probilic it was not
vr^^rr ai;il liie panneiliscoiivictioun of slauchtcr
as it v.'i..!i( atis the assy so is frome partialitie
in rrspi ot thyy coiiviclit him of ar.e mair ca-
jiilall cryme than intercominoning sua it can
found a presnmptioun cf ane cryme altogidder
diO'erent seiisir the reuiibsiuun'of the pairtie
interest and letter of slaucs producet to yeas-
s,> se seliew tliat (ke slauehter comittit lie him
was rather be fatnlilie and surpry^e in liis de-
fence as it was \T:i^et be the sui.l y.lt\ Jo'n his
prelu'r than vp^nf^ toirihui.'.il fellotiie Ani his
former l\ie beiu^ vnknawin to thir geutilnun
Jiow i^ipannellit as they will depone vpone y V
couscieiiees and nocht iK-jnjy traducct be my
lort] aduoc it couhl not vncharitairiilie be pre-
suniet to be ilai<:itious and the IcUcr of lioirn-
iii£; .conteniiijT James Gordoun liis denuncca-
tioun was not vrtret and coateins na sic thinpf
uatbcr cau Walter ilay bis fgibaequeat loyallie
and dini<^nce in conVooating people to persew
James (inint expiat his witting^ iDtercom-
u)oning {^if it be a cryme as it is not nor Jamei
Gordoun his ne£r!i]crence to doe the lyke be tna
ag^ravat seint^ intercommohin^ with tbe re-
bellis and uocht apprchendiDSf of thame ar dif-
ferent crymes And James Gordoim was only '
indytit ot' intercommoning' and his omissioaa
in noclit deluiting caii not be rcspectit dler
notto'r kuaw ledge of the rebellis being in ye
cuntrie and harbouring^ in Rathiemay And
qnhair it is replyit that the defence proponet
tor James Gordoun that bis intercommooing
was not s|ionianeous bot forcet cannot be re-
8[iectit becaus it was repel I it in tbe firet pro-
ces and because it (luaurattes only to pui]ga
his secund metttin(>; othair bcin^ na act or tio-
lence condescendit vpone at hLs first meittin^
and becaus it is contrair to his denoaitionei
qualifeinjnr pre^nantlie nocht only tiis will-
in^ies bot iamiliaritie in bis conrarenoe stay
souppin^ with the rebellis and lying w't
the rebellis in ane chalmer without ony men-
tioun of \ i (deuce It is duply it as of beroir that
it uas re|iellit as inept to stay the pannell Itoiim
going to ane assyse Bot nbcht to vindicat tbe
pannell beinqr fundin eiler tryall to bait* bcaa
violenced seing in law and nature Ju$lut waiu$
is ane irrefragable defence admitted in the
most bluidio inquisitiounes and amangst bar-
bares And his first meitting was purgct be ye
said Mr. Jo'n Nisbet bis prelocutor in respect of
his surpryse and iustfcir quhilk in law and
conscience '* non solum potest sed debet CA-
dere in constantem virum/' Decretalibus de iit .
qui metus cansa ca|).4 . Itequires not neceaiairilie
a present act of violence foot is defynet in law
'* nistantis vel futnri nericuU causa metus trepi-
dctio" L. 1. if. quod metus causa As h at
leuth evincct in' our former ansV and in tbe
pi*esent caice Ifonre rciloulttcd men armct with
pislolcttis micht haif quelled the maist coo*
stant and loyall man being alone And lastlie
the pannell *his last meitting is at lenth tIb-
dicat frome being wilfnll as is cleir be our ana'rie
And quhair it is rcplyed that the assysoni ar
tyed to judge accoirdmg to ye probatioun de-
ducetbe<bir thame and not according to yair
prifat knawlep^e seing the act of parliament re-
quotas that all probatioun sould be vaet op-
piulie and it sonld convell all justice gif judges
vpone pretext of yV privat knawledge souldba
licenciat to judge at randome and that the
testimonieof sonie ofy'rawin number being
vpone craleit et ex auditu frome tliaise that war
teyntit with ye lyk gui(t could nocht baiff bene
sntiicicnt informations to the assyse aeiif
Koliert Collie and ilol>crt Dempster fitt
ipdiomc tliay had knawledge was denumxt
rebellis in the same Trez producet be my lofd
adnocat to veritie Nathaniell Gordoun and
Alex'r Leith y air relK'llioun It is duply it that
quhan ane fact is only proven be the vertficn-i
tiones adducet and the qualitie purgeing Ibn
fact and cryme as that of necessary dmnce
in slauchteris constant to assysourea in j>
prirat knawledge tbay sould judge aceoirdi^f
p'
J49]
upan a Process of Error.
A. D, l6BU
fI50
to yair awin |»rftppcr kuai»le«lge since lliay ar
atlestet »s witnehs* anil lUair leHtioiuuie is
€omp;ail4e will* itje verilicatiout^ aclUucct To
atlii'ini: lliaL tjit a jiairtie convict be ijie depo-
•itioneiior witnes* of slauctitcrsaulil relbr liim-
■elflo ye knawkd^e of ane as^yse viz. that
W iiad eomitiitlcd it being luriuus or in bis
jiwiii ilefence it war absunl to afliraio iliat aoe
assyse in»y nacLt a^quitt vpooe yair avrtn
knaulcil^e of thcase cxpiatorie tiualileis And
the act of parliament ref^nyremgp |>robatiaun to
be diMl licet ojijiinlie disbatjfes nnl assysoures to
tiitncs tliair knnwledg-e qulian tbey ar in closet
bot ^irovydes only that all inlbrniulci ies to ye
assyse aitdncet be yair paifteis souUl lie rfeducei
pubiictlie Item llie teslininnip of the assyson*
albeit super nnilita my't haif ane ^u\d and
warantuble informative be ibeassysoni consci-
ence quha :ir not tycdtn extraneous probalioun i
And ar [irolialionn yamesclffisi aiuHtie rebf lliouo
«f DeifijistcL- anil Collie cpiliilk iny't liaoe rao-
dered yair tLiilimonic sospitious was not vi^et
to ye tirst assy^ lie my lord adtioeat and ye
dispute be ye panncfl his pr*j*r bcires tlmt
tbey war vnsnspect iiicn and Ibaii war not
braodit (o ttie paiinifbis kna>vk'dL''eant) yclVez
ibaii prodnuei bdoir tJtanit' boirnubic tbin^
And qiihair as James Gordoun b!»Todetitifu]ije:(
is atj^f^ravat in respect be joy nil with ibaoie of
ye bouse it is at It-oth ansv**eirit M'oir and i|*r
as it is vrgel that aii^ sen and of the house be-
ing scboie furih iny*t liaue bene direct it be
iames Goi'donn to aduertr-is the eimtrey hh
«hijdyit th:il beintr detenit u'lin he could not
haif penetrut itic durto ^e\(Mlirectionn .Ind
CoUiet^nnm bis fait can iiocht be imputed to
James Goidouu and tf r it is reply it tbaf*- nul •
luiii fuit si^niim viokucie et' resistencie et
qnod coactio uou libtftat n'lsi denuQciaito se-
ijtiaiur'* It is ans'rit that in law nocbt onlie
viz* (]ulvilkiE> relative to ret^istnnce Bot ^* Jnstus
luetus e^cusat quod metus caum*^ qubilk is
not only ** oh presens nericulom setl foiurom*'
And tlie instance of blak itiaiti in rbe paying'
qr*of oaiitciy albeit violenced ar eiccnset isooclit
€onhidemb!e bec;ius ibepayerisof bbk niajll
inaketh ane illie^a and voluulai fraciioun with
rebelbti quhair a*i tbey may schelter ihanie
selffis IVome yair viuleuce be a retftit ia ike
cmitrie xlntt implore the protection of the king-
and counsel! and tbair is great oddls behiix a
pi-eseot surprymnjr and imminent violence
atid a vohmlar li^ witU relidlis and a *>ufferring
of thauie tn reave herrie and oppress tbair
nichtbor*s with yairknawlc(f;:c and m tbair si^lu
w*lbout resisiancc or contrudictioun as ibe act
of pariiament anent blak maill btirls and payeris
of bbik maill ar lyable as suppliearis ot rc-
beilis be aue has' tribute In respect q*i' of
it hi evident that the diltay k nawayis relevant
oocbtwitb standing of the replyis maid be the
lord aduocat and the f|ualilje v^'uiiigbe wiiboul
viJfullic cannot impoiri a cry me Kpeiriallie se-
ijilj' wiuiny:lic is liot anes meniionat in ye aelis
of parliauient viz. the act of kin^ Ju. the 6
par. 7 id anno 1540 Qnbair tt is joynel with
the wot'dts reccpt defeud sapplie maateaxie or
due fiiuouris, and not with intercmnmornDt; in^ |
the actes |jrohilicittin^ inlercommonins;^ q'lk
re<|uyres wdliilnifs and iutentioun be ye woriU
presume to take vpMin haniL as is alreddifl
scliawin And the act of pitrliament of king
James the fu'st his third [iMiuisient qubilk i>s tha
ground of all the rest of the actis a;»'uiuj>t i
ccptcris and manleiaeri« ol rebeliiii iM^jres tha
ua man sail i-ecept or manteane retirllis wilfnllifl
and makis no meutioun of wi(iiii«i|ie And
y'foir seing ** posteriorcs Ie;;es ad prinres |»er«-|J
linent vbi ag-itur ile interpreiiitioue^' ft', de I
gibus L. 28. The foii*<aid act of necessite n»o<fJ
tnler|)reii all the subsequent actis of that na<^
tureiii a sen's consonant with the commou^J
law iriid reason e.
Tlie J nstice c*tioewis this dyet tn ye morn*
the 11) instuutis and uiditnis the pannell to tin4 j
cautioun fur y' reeiiliie vnder the panes Bp'cit
in ye former actis set doun hL-ir<aneut.
'I'lie caiilioneris foirsaidii« t noil be ye panncll
ilk the hisl act beings personiiallie pr'ot becaui*!
cautionciis tor ye pannelli* re -en In e ibc saiil'j
xi\ of Dec^ember inataot inder ye panes futr*
said is.
llie persontis of assyse watnit apnd act^
vnder ye panes foirsadis qrSpoue my lord ad-
uocat ask it innlrvmenlis.
Curia Jlstiljarie, S. D. N. Rej^is lentaiu Pro-.J
toiio de KdV decimo nono 1 let'em la i«!
lo33t l*er Mai^ros' Alexaudi inn Cnlnile et
Jacolium Rubertoun JuslicianosilepnUtius.
Contiaewit to the saxt of July nixt 1036.
Iniran,
Alcvander Irteing^ of Lenturk:.
AlcjiiHiicr Bancnmm^ of Elsik.
Atevantkr Abetxroinbie, of Birkinlioi^.
Hector Abcrcrmnbic, of Felterneir,
Alcxutiiter KeifftyOi iJiiffus,
Witlinme. Seatoun^ of 8cheathyn.
JohtvlfgUyir, of (f lassache.
Gcorgr GorJtmn^ of Tilliechowtne,
Geor^f' GordoitJi^ of New toun*
Mr. j\Ia(how Lumwkdcn^ burgees of Abcr*
dene.
James Seatoujjf burges yair.
ChairlcsSlevin Lit^fcr^ biirges jair.
DilajtH of yeerror commiltitbe tbamc in tba j
temerariMs and uiU'nll acquitting of Jamtj t
Coi<l(iun of 3e wilfull and wittin|jf intercom-
iiionin<^ with the rebi'Uis c^tcnit in bis dittay.
PertfTiur, — Sir Thomas Hope of Craighallf
knyi^ht, bis ma tics ad uocat,
Pmhculon in Dejlncc, — ^Ir, James Bainl,
Mr. NisLiel, Mr, Thomas Nicolsone younger.
July 0. The justice with advyse of ye asses*
^rsaiid ofi'oiisent of ye pei'sewur cciniinewis
this matter (ulhe tirst \Veduesday of July nix to
cum lieing the saxtday ofyesabl monetli and
ordanitthe pannell to find cautioun lor yair re-
cntrie and comprirance that day in the toU
buib of Edinburgh in the bo* r of caus^ to vndci ly
the Uw tor tli& cry me ibirsaid Ilk persou«
35 CHARLES IL ProeeedingiagainH Alex. Blair and others, [IS»
Curia Justiciarlb, S. D. N. Regis tenta in
Pretorio de Edinburflrb octmoo Jalij 1656
per Ma'eros Alexaa£rain Coluile et Ju90«
Dum Robcrtoun.
Intran^
Assyse of Error c^lenewit to ye XT instantif.
Alexander Irwingy of Lentuik.
Alexander Banerman, of Elsik.
Alexander Abercrombie^ of Birkinboi|f.
Hector Abercromkie, of Fetter neir.
James Seatoun^ burges of Aberdeen*.
George Bmcct saidTer burges y'r.
George Gordoun^ of Tilliec'boudie.
John OgUvie^ of Glassak.
Alcrandtr Kcyth, of DufTus.
William Seatoun, of Schethyn.
Chairlei SUvin LilsUr, burges of Aberdeo.
3Ir. Mat hew LummitdenthurgcB y*T.
Dilaitit of ye errour committit be
ye temerarious clangeing of James
sune to George Gordoun of LogyaJtoun.
Persetcar. — Sir Tbomas Hope of Craigiiall
koy't barronet bis ma'ties aduocat.
Prolo'rt in Defence. — ^Mr. James fisird-*
Air. Tiiomas Nicolsoun younger.
The Justice coDtineviriB iQterlomiitor tp js
fyftene of this instant moneth or July - Ami
ordanis ye pannellis cauteoneris to stand ob*
leistfor yair entrie yat day Tuder ye
c'tenit in ye former actis.
151]
▼nder pane of ane tliousand merkis for obe-
dience qr'of Compeirit James Cheane of Ar-
nnf^e quha l>ecomc sou'tie for ye entrie of the
said Alex. Irwing of Lcnturk Alex. Abercrombie
of Birkioboig Williame Seatoun of Scheathyn
and Mr. Mathew Lummisden—Lykas William
Gordoun of Tulloche compeirand personallie
become souertie ibr ye entrie of Alexander
Banerman of Elsick — Compeirit lykwayis
Alex. Abercrombie of Biikinboig and become
st>ueriie for the entrie of ye said Hector Aber-
crombie of Fetter-neir — Compeirit in lyk nia-
ner George Gonloun of TuDiechowdie and be-
come souertie for entrie of the said Alexander
Keyth of DuflTus — Lykas ye said Alexander
Keyth of Duffus become souertio for entrie of
ye said Georgre Gordoun of Tulliccbowdic
And siclyk the said Alexander Banerman of El-
sick become souertie of ye said CJhairles Stevin
And lyk way is compeirit personallie Johnne
Gordoun of Inner-markie and become souertie
for entrie of ye said George Oordonn of New-
toun And last compeirit John Seatouu baxter
buries of Edinburgh and become souertie for
entrie of ye said Jiunes Seatone burges of Aber-
dene The day foirsaid vnder ye pane abouc
spe'it Quharvpone my lord aduocat askit in-
fitrumentis.
Curia Justiciarije; S. D. N. Regis tenta in
Pretorio Burgi de Edinburgh sexto Julii,
1636. Per Mag'ros Alexandrum Coluile
et Jacobum Robertoun Justiciarios de-
putatos.
Assyse of error coutinewit to Fryday ye ?iii.
Julii.
In I rah*
Alexander Iraing, of Lenturk.
Alexander Bannermnn^ of Elsick.
Alcxundt'r Abercrowbic, of Birkioboig.
George Bruce ^ satdler burges of A'b'd.
Hector Abercrombie^ of Fettter-neir.
A Uxa nder Keil A , of D ufTus.
Wm. Seatoun, of Sitheathin.
JamfsScatounj burges of Ab*d'.
Chair its Stevin Litstcr, y V.
Mr. jMuihozo Lumisden,
Gtorge Gordoun^ of Tilliechowdie.
John Ogilvic, of Glassiche.
Dilaittit of the error committit be thame
ill the partiall and wilfull clyugcing of James
Gordoun, sone to Gcop^ Gordoun of Logy-
altoun. '
Pcrxmar. — Sir Thomas Hoip of Craighall
kny't barmnet his ma'ties aduocat.
The justice with aduyce of his lo' assesso'rs
continowis interlnqnitor vpoun the alledgances
duply is and triply is and ans'ris maiilyr'lo
in this proces of befoir to Friday nixt and or-
danis the i^au'rs fund of beibir to stand for the
defenderis Tnder the paine contenit in the
former act.
Curia Justicurie, S. D. N. Regis
pretorio de Edinburgh decimo qmnto Jolfi
1636 Per Mag'ros Alexandrum Coloile de
Blair et Jacobum Roltertoun aduoeatnitf
Justiciarios depotatos diet. 8. D. N.Rqgit.*
Intran* [as before.]
Error cHinewit to ye sncii Febrnar.
Dilaittit of ye temararious and wilfull cirbr
committit be thame in clangeing of James
Gordoun sone to George Gordoim of Logyal-
toun of ye cry me cHenit in hisdittay. ^
Penewar.^Sir Thomas iloip of CrughaU
kny't baronet his ma'teis aduocat.
Prelo^rg in defence, — Mr. James Baird Mr.
Thomas Nicolsone younger.
The paunell takis iustrumentis of yair entria
and protestis i'ur yair cautioneris releiff.
The Justice continewis interloquitor zit as of
befoir to the xxii day of Februar nix to con
Anil ordanis the pnnnollis former cautioneris
fund be thame sf befoir ?iz. vpone ye 19 day
of December last ^OSo to stand obleist for
ye re- entrie ye said xxii day of Feb'r niz
to cum \'nder ye panes spe'it in ye said act
And declaires that ye compeirance of John
Ogilrie of Glassach and James Seatoun m'
name of ye rest of ye patmeli that day sail to
admittitj&c. '
Curia Jvtenanum H. D. N. Regit tetita In
pretomde Eilinb'r acxii Fi-liruafii i»37 Pef
Ma^'rum Aicxiiiidrutt] Cotuile de Blflur
Juiiicmriutti dcpulaluiiii
CoDlrair the Assyso^n of Error contioe^it to
the xjtii Junii Dixi>
Aaeot Ve criminall dyct and (tronuncemg' of
interloqurior y^intiU vpoue the aUcadga^cfs
and uii(i*ri6 midd in ye actioun and caus per-
se wit be his maiesteis aduoctit for his bet ties
intr^s aganis AleJKiind^r Irwing^ of Lenturk
Alexander Abercruinbie of Birkinboig^ Wil-
liam 8caloua of Sc I leatbyn iind Mr iMathow
Lnmmisdea burifpa of AI»crdeeii Alexander
Baiicrinan of Elsik Hector Abercrombie of
FetteT*neir Alexander Kcy^l of DufTus Ueor^i!
Gordoim of Tilliechoivdie Chairles Htevin
George Gorduan of Nevrtonn George Brtico
tiiidler burgca of Aberdeen and James hSea-
lone burccK y^ Ver ye ailed yfit error com-
luiitii Ijc tbaiue in acquittini^ and clang^eing of
Jtine* GordouD sone to Geoi^e Gordouo of
(ilKyaUolm of 3 e cr^ mc cUeait in his dittay
they being suarne and adtnitlit vpone bis
MByte a» ye suinmond and dittay of yr* wil-
fulf error y^ aueni in tbu sehf proportis
Quhilk intenuquitor and pronunceing^ y 'of was
vpoue llie XV day of July last 1636 coniinewit
|h to thir day And eautioun funds be
y> i ' n*fmes ddenderis for ye entrie antl
com|»eiraiiee iU'iH day and place to ye effect
and vnder ye |>anes spei*t in ye act maid yr*
TDoun cofiijieirit jiidiciallic sir Thumas Hope
hiacnaiesteisaduocat for his hienes intres as
pertewar on the ane pU and on ye vther p't
thejsaidis per«oDea defenderia being oRytoes
calht to haif compeirit perHonallie and enlerit
Ibametdffis vpooe pannel at tbay that fatjd
cantioun for ^t re -entrie and coropeirct this day
and niiice to ye tWect aboue uritteo, cornpeint
]^r.l^)bert !*«'•,,. ivryter in name of ye haill
defenderia ;Lt u And nruducet ane act
ofyebrdis v, _l coimsall daiitit at £din-
byrgh the liaxt day of December last by past
ordanio^ and commanding his maiesteis jus-
tice cl«frK and y^r depuUiti to coulinew ye aaid
dvet to ye tuentie tua day of Junii nijc to cnm
of ye q'lk act of couuaell the tenuor folio wis :
** At Edinburgh the saxt day of Doeerober
sceir of God 1 ra. vie, threttie tax yeirea
anent theiiiippUcatiouu presentit to ye lordi» of
1*^ LSidi be Alexander Irwingof Len-
in ^selffand in name of ye remanent
^* ijiMiirpi wbowarsiimmond rponethe aasy^e
tit' ei'tor cttncerning- JanitH Gordonn foakand
€ntioun That qnhaii- it it nocht vnknawin
the Miidis lordis <|ubat great and heavie
ble ft?»it expend* the anpphcantcs hes sua-
tcnit besydc ihe nt'glect ol yair adocs at home
by ^-air lang attenttance vpone that pmces
And llow ut \Afii efter mony cxintinuHtionen it
WM COnlmeHit to ye liiriHic tua dny tif Fe.
Imiir now approachjng c^Mk ia > me
And to ▼nMsaaannable for tmvelt ye
IKkrtho hdr that it will hr^ ms<m ,^ fg^ |{te
•npplteantit to keip that dyi l i : ^' ct of ti)e
VOU^a
of the zeir q'tk it ever mott Tttteaaoo-
ablo at thai tyme And the far distance of tb
place being abooe four tcoir my lea thmn tb
bur^h the way being 6o delp and fonle wid
tuo itrrreyia and ane number of watt«m and
tnontanen tnteriected As all travelling at that
tyrne will be at that tyme almoat impotBtbl^
and the ait seid begynnc& at that name tyni«
an<l seasrme the ne^lectrng qr*of wilt Tndoelhe
maist puirt of yr supplicant is and aetng tbay
hu»i nevir^'bwQued yr* tryctl but erir oStred
yaniesettiif y'viiut iM ane legal! tbrme and
incLncr allowable l>e the law is of this kiBgdOHM
bumldie dc?syreiug y^foir ye saidis limlb ••
giue oonmiaud lor present procca or vthcrwayf
10 prorogat tlie said dyet till the tuettiie tu
day of Jnnii nixt lyke as at n^air tenth hn
tenit in the said sitpplicatioun Quhilk
re<l hard and cotiaidilerit \h* the satdis lOfd^
and thay weiH ad^ysed ySvith the kutKii wf
aecreii coiinsall ordanis ami * ' V's
ma'teiii justice justice clerk i t
to cmtinew thccrimlnall dyet aoum: ^^ <.iu;ii rdi
tht^ tuentie tua day of Junii nixt ami to di»«
pence wiiii the satdia RopplicanttM ihair
peirance rponc the said xxii day of Febnu
fhay finding new cautioun coniorme to ofd<
quhuir unent thtr preseutessall betothamaane
warrand And the saidis lurdia dedairet thai
sail nu prorogatioun be ufUrwardH gran tit m
this matter ordaning in ye meane time hit
nta'ties justice and his deputti^i with the lord
heigh thejMiurer of this kingdome and rema-
nent attesio*ra to his maiesteis justice to
[>ei*Tse aiMl eonsidder ye pmcet And to get e
furth yair interloquitor ibairaoeot— >Exlra<?tiiin
de libris actorum secreti consilii 8. D. N . Itcgia
per me Jacobum Pryttirois il^ w'^mj
sub meis sigooet subscnpliooe k».
"* Sic SubicnhUmrf J AcoBi>» i m ..i kuis J
Accoirding to the quhilk act and ordlnanrr^
of a«cret oounsalt the said Mr. Ilobert Patrie in
name of ye person es defenderis ulvoue writtin
ik^yret that the dyet aboue tnentiontd ap*
poyntit to this day mychi be eotittntwii beve
justice to ye aaid icacii day of Junii nixt lie
justice tor obodteoce of ye taid act of coaotall
and ordinance spc^rt y'intill continewia tbia
dyet witli all pronune4.'nigof ioicrloqmtorin the
premi&Mia to ye aaid tuentie tua d.i i
lilx tu c u m and ordan it ttautiou n to U. i
dcfenderis aboue fi[}e*it that yai and ilk ^lul ut
thame tall compejr befoir hi^ marcAlief ju».
tice and Wis deputti's in ye tolbuith of EdiQ
burgh the sajd xvii of Junii nixtmnim ut y
houre of cans to heir interlmpniour pt ontmcc
iu the nreiuiasis and to vnderly the law ^or the
eiroralmMe writtin taduriha patust^pecitiet in
yc former actii owid Itt tkliB ff90m Cm-
{M ii il \ utri'tler ya p«rfiouL« r#*j»utictiua fotlowtllC
MlMr.ltV ,df ^
' ttoun tor \i uwia
of Leniurk aod Mr« Muihut* l^imtuHdatt ]
entrie and com|>riraiH^' ye aaidtaday i
to ye effect and vnder the pane aboue 4
CVm|»eintaliO Mr. James CJieyne i
1531
33 CM AllLES II. ProcealitigM agaiiut.AlfX, Blair and others. ^ISG
caxxdoMT for Wm. Leatoun of Scheatbyn and
George Gordoun of Tilliecliowdie and obleist
him to enter air'er of thame ye saidis day and
place to ye effect and vnder ye pane foirsaid
And siclyk compeirit Mr. John Abercrombie
wryter and become souertie for ye entrie of
Alexander Abcrcromlue of Birkinboig And
llectur Abercrombie of Fetlemeir compeirit ii
iyk manor James Keytb writer and become
cuiitiauer i'or tJie entrie of Alexander Keith of
Ditfius And siclyk compeirit Alexander
aaidicr bi]r;>:;>s of Abenlcne quha l>e h[» band
1»roi!uctt \-o Mr. John l*ai
lis proV daitit ye xi
souertie for ye eutrie of George Bruce saidler
And Mr. ilobert Vdnic of I^nkming;toun com-
peirand be his obligationn [iroducet be himself
daitit the tuentie day of Fehruar instant, be-
«ome caution for ye entrie of tlic said Chairles
8tevin Litster the snidis day and place in the
boure oi' caus io yc effect for ye causis and
Tnder ye pauis aboue expncuiit.
wrangus acquitting^ and clanpfeing of James
Gordoim sone to George Gordoun of Logyal •
toun of yc wilful! recepting of ye rebellis callit
the licht horsemen and intercom moning with
thame contrair ye actis of parliament.
Fcrsewar-^lr Thomas Iloip of CraighaU
knyt baronet his maicsdes aduocat.
The persones on pannell askit instrumentis of
ye entrie and conmeirauce and protestLs for
ye cautioneris relcif.
The Justice be warrand of ye lordis of secreit
o - _ , ^ counsall conforme to y' lordshipis act and or-
..IWzouuger aduocat ,,i„^„^^ insert yairin of yc da\t xxvil day of
of *ebr mstaut become j^„jj j„^^^„^ j^^^^j, ^^ j^^,^^ ^^^ j^^j,,^,
minall proccs led and deducet in yis matter
anent ye error simplicitcr Quhairvpone the
pannell askit instrumentis off ye ql'k act of
connsall the tennour foHowis :
Apud Edinburffb vigesimoseptimojanii Im.
vie. xxxrii — ^The lordis of sccreitt counsall hare-
ing hanl his niaiestcis justice justice cleric and
justice dcputis, and the assessors appointed to
them be the saidis lordis for advysein^ the procei
led and deducet at the instance of hn maiestics
aduocat ajranis Alexander Irwing of Lcnturic
and vtheris gentilmen ivho war criminallie
convened for anc assyse of error And liarcing
considcrrit the opinioun and judgement of the
said justice and assysors foirsaidis tuiclieing Ibe
relevancie of the lybell, and of the pxccptiones
and answeiris maiii y 'rto in behalf of the pan-
nell And being weill advyset yairwith the
saidis lordis being lothe to (f^ve forther in this
bussines ordains his maiesties justice justice
clerk and justice deputtis to desert the dyct
appointeil to ye said laird of Lcnturk and vtheris
mentionct in the crimiuull Prez and nocbt to
proccid ouy farder thairin Dischairgeinc'lieirby
the justicre clerk and his deputtis of all directing
of only Trez at yc instance of his maiesteis ad-
uocat againcs the saidis personis vpoun this
ground and caus iu tyme they re*
ceave ordour thairauent be a publit.! delyvcr-
ancc from the tabill rpihairanent and
the haill prcmissis, the extract of this
l)c to the said justice justice clerk and thair
deputtis a suOicicnt warrand — Ex'tractain ds
libris actoruui secreti consilii S. D. N. Regis
per me Magistrum Gilbertum Prymrajs de«
riciim oinsdom sub mcis signo ct siibifcriptione
niaunalibiis.
Sic Su bscribit iir^ M G . I*R Y m rose.
Ci'RiA JusTiciARLE S. D. N. Rcgis tcuta in
Prctorio Bur^i de Edinburgh, vige&imo
sccundo J unit 163 r. Per 3Iag'rum Alex-
anulrum Coluille ct Mag^rum Jacobum
Kobcrtouu Justiciaries deputatos.
Intran^
Continewit to yc 28th of Jnnii instant.
Alexander Irzoing^ of licntiirk.
3\Fr. Mat how Lumisdail/^ hurgesof Aberdcne.
William Scaloun, of Schithiiic.
Alexander Abercrombie, of Birkinboig,
Hector Abercrombie^ of Fcttonieir.
Alexander Keiths of DufTus.
James Seatouu, burgcs of Aberdcne.
Dilaittit of the error comittit he yame in
fl^ngeing of Jamrs Cvordoun sone to George
Ciordoun of LogyuUcun for yc rcceptiug of yc
rrbcUis callit the light horsmcn specifeit in liis
ditliiy.
Vcrseicnr. — Sir Thomas IToip of CraighaU
knyglit baronet his l\lu*tcis aduocat.
l^rdocutor in defence — 3Ir. Thomas Nicol-
sone yoiiMi^or.
TliVjn St ires with advice of his ma^teis ad-
nnt^t cuiitinrwit the interloquitor vpoun the
alloflf^anccs and answens maid in this proces to
^Vc-dncs'.l.iy next the tuentie aucht instantis
the personis vponu pannell ilkane cautioner for
vytli( ryuir rcontrie that day vndcr ye paiucs
spccifeit in yc former act.
Intran^ eodcm 23 Jnnii 1637.
Assyse of J'>ror Dessertit be warrand of ye
Icrds of secreit counsall.
Alexander Irrring^ of liCnturk.
Mr. Mathow Lumisden, burgcs of Aberdene.
Jamei Seatoun, burgcs yair.
Alexander Abercrombie^ of Birkinlioig.
Hector Abercrombie, of Fetterneir.
William Seatoun, of Scheatbyn.
Dilaittit of ye error comittit be thame in ye
[AUhougb this CASK of .VSSYSE of ERROR
is not, under the apparent abolition of that
process, likely to fornk a prcci?dent for future
prooi'LMlings, it seemed to me to be on several
accounts a \ery curious document of Snots
legal antiquities. I ha\c endcavouixN] ex-
actly to exhibit the strange orthography (if
I may so say) of the Record, not only as to
the vernacular language, but also in the au«
thorities mentioned and passages cited of fo-
reign authors. As to the incorrectness of
the antient Scots Records of Justiciary, see
a Note in vol. 10, p. 881, of this Collection.]
157] Proceedings agaimi the Earl of Lauderdale, 4 c. A. D, 1682, 3. [I5S
329. Proceedings against Charles Earl of Lauderdale,* Richaku
Lord-MAiTLAND his Son, and others, for Official Malver-
sations respecting the Royal Mint of Scotland : 34 and 35
Charles IL a. d. 1682—1683. [Now first printed from tlie
Privy Council Books at Edinburgh.]
XHE fullowing Narrative and Reflect'ons con-
cerning this Case, which occui* in 1 Fonntain*
hair« Decisions, throw much Ught upon it :
November 3, 1681.
*< A commission came down from his Majesty
to examine the accompts of the treamry, how
the King's puhlic money hath hcen spent, and
employed these several years byiyone. This
was principally levelled against Ualton Treasu-
rer-Depute, because the most of these who
were named auditors of their compts, were none
of his friends.
* lie was brother to the duke of Lauderdale.
Sec his Case, vol. 6, p. 1025. Lord Halton
appears to have activelj^ co-operated in the
mal- administration of affairs in Scotland under
his brother the duke, as is set forth in the fol-,
lowing two articles published in the Coltectioiv
of 8tate Tracts from the year 1660 to the year
1665, published iu 169'i :
•• Some particular Mutters of Fact relating to
the. Administration of Affairs in Scotland
nnder the Duke of haudtrdate. Humbly
offered to your Majesty's Consideration, in
Obedience to your Royal Commands,
" 1. The duke of Lauderdale did grossly
misrefirescnt to your mayesty the condition of
die western countries, as if they had been in a
gtate of rebellion, thongh there had ne^er been
«ny opposition made to your majesty's autho-
rity, nor any resistance offered to vour forces,
nor to the execution of the laws. iBut he pur-
posing^to abuse ^our majesty, that so he rois^ht
carry on his sinistrous designs by yoirr author
rity, advised your majesty to raise an army
ai^inst your {leaceable subjects ; at least did
fnunc a letter, which he sent to your majesty
V) he Ki(;nc-d by your royal hand to that effect ;
whirl) bi-ing sent down to your ci»uncit, orders
was thereupon given out for raising an army
of ei;^hf or nine thousand men, the greatest
port whcnM>f wcrp Iligiilnnders; and notwith-
atanding that, to avert threatening, the nobility
and tjrcntry of that country did send to Edin-
burf^^li, and for the security of the pence did
offer to cn^iisre, that whatsoever should be sent
to ]iot the laws in execution, should meet with
BO affront ; and that Uiey would become hos-
tages for their safety : yet this anny was
narched and led into a peaceable country, and
did take free quarters according to their oom'
t
May 8, 1682.
" A commission having come down for try-
ing the State of the Coinage and Mint, to duke
Hamilton, Perth, Tweddale, Athol, Soutliesk^
the Chancelk>r, Register, general major Drum-
moad, Gordonston, Balie JSaird, $cc, allenemiea
to Halton, general, and to sir John Falconer,
master of the Mint; they proceeded, while
Halton was yet at London, to take cognitioit
by the declarations upon oath of all the mem-
bers and officers in the Mint ; and it is nid sir
John Falc^er in hopes to liberate himself, at
least on promises that it should extenuate bia
missions, and in most places levied great sums
of money, under notion of dry quarters^ anc}
did plunder and rob your subiects ; of which
no redress could be obtainetl, though com-
plaints were frequently made : all which wert
expressly contrary to the laws of the kingdom*
*' 2. In their quarters it was apparent that
regard was onlv had to the duke's priTate ani-
mosities ; for toe greatest part of tnoae |ilacefi
that were most quartered on and destroyed,
had not been guilty of the field com^enticlea
complained of, and many of the pWoet that
were most guilty were spared upon privata
considerations,
*' 3. The subjects at that time were required
to subscribe an exorbitant and illegal pond»
which was impossible to be performe<l by
them ; that they, their wives and children and
servants should live orderly according to law,
not go to conventicles, or entertain vagrant
preachers, with several other particulars ; by
which bond, those that signea it weremaifa
lyable for every jnan's fault that lived upon
their ground.
*< 4. Your ipajesty's subjects were charged
with laborrows,denounood ridels ; and captions
were issued out for seizing tneir persooi upon
their refusing to sign the aforesaid bond ; and
the nobility and gentry there who have evt^
been faithful to your majesty, and had appear- »
ed iu arms for suppressing 'the last rel)ellion, ^'
were disarmed upon oath. A Proclamation
was also issued, f'orl»idding them u|>on great
penalty to keep any horses above four pounds
ten groats pric<».
** 5. The nobility and gentry of the ahine
of Ayre were also indicted at the imtanoe of
your majesty's ailvocate of very bi)|rlici'
and misdemeanors : whereof some did ^
tre:ison. These indictments wen
them in the afcniog, to be woawmadhj tlN
1591
94 CHARLES II. Proceedingi against the Earl of LauderdaTe [ 160
•WD ff\n\tf did ifo great lengfths to load HaltOD
With misdemeanourii and lualventations, by in-
Tcnin^ihe king's part of the emolumenta of
tlif> S(r<)ts Mint to his o«vn private gain. 2.^ In
the next morning unon oath : and when they
did demand two or three days time to consider
ni dieir indictments, and crave t)ie benefit of
lawyers U| advisi* with in matters of so high
coucemment ; and also excepted to their being
put to sviear against themselves in matters that
were capital, which was contrary to all law and
justice; those their desires were rejected,
though the like had never beeor done to the
greatest malefactor in the kingdom. And it
was told them, they must either swear instant-
ly, or they would repute them guilty and pro-
ceed accordingly.
*' 6, The nobksmen and gentlemen knowing
themselves innocent of all that had been sur-
mised against them, did pm^e themselves by
oath of all the particulars that were objected to
th«n, and were thereupon acquitted. And
though the committee of the council used the
severest manner of enquiry to discover any
seditious or treasonable designs, which were
pretended as the g[rounds of leading in that army
into those countries; yet nothing could ever
be proved : so false was that suggestion con-
eeming a rebellion then designed that was of-
fered to your majesty, and prevailed viith you
for sending the aforementioned letter.
** 7. The onpressions and quarterings still
continued. The noblemen and gentlemen of
those countries went to Edinburgh to present
to your council the heavy pressure that they
and their people lay under, and were ready to
ofier to them all that in law or r'^ason could be
required of them for securing the peace. The
council did immediately upon their appearing
there, set forth a proclamation requiring them
to depart the town within three days u^mn all
highest pains : and when the duke of Hnuiilton
did petition for leave to stay two or three days
lunger for some very urgent affairs, that was
refused him.
*< 8. When some persons of quality hnd de-
dared to the duke of Lauderdale that they
would go to represent their condition to your
majesty, if they could not have justice from
your ministers ; for preventing that, a proda-
roation was set forth, forbidding uli the subjects
tu depart the kingdom without license ; that so
your majesty might not be acquainted with the
liaid condition of your subjects from making their
appUcation to your majesty, no less contrary
to your majesty's true interest (who must at. ^
ways be the refuge of his people) than to the
natiirul right uf the subject.
*' The turmer particulars relate to the inva-
sion of ihc rights of great numbers of your
subjects all at once. What i^iiow, have in -
deed only fallen on some single persons; yet
are siwh, that vonr whole |>eople apprehend
they may be all upon the slightest occasions
brought under the like mischiefs.
<* t. The council htth upon maDy occa*
making the fineness below the standard. 9.
In coining 17,000 stones of cornier moneys
beyond the quantity contained in ins Majesty's
two warrants for the copper journeys: 'all
sions proceeded to a new kind of punishment,
of declaring men uncaimble «f all puUic trust ;
concerning which your majesty may remember
what complaints the said doke made, when
during the earl of Middleton's administration,
he himself was put under, and incapacitated
by an act of parliament. The words of his
paper 8g[ain8t the earl of Middleton are [an-
capacitating] was to whip with scorpions, a
punishment to rob men of their honour, and to
lay a lastmg stain upon them and their poste-
rity. And if this was cononlained of, when
done by the highest court of parliament, your
mi^ty may easily conclude, it cannot be dona
in any lower court But yet notwithstanding
it is become of late years an ordinary sentence
in council, when the least complaints are
brought :^in8t any, with whom the duke of
Lauderdale and his brother are offended.
** Instances of this are :
** Tlie declaring thirteen worthy citizens of
Edinburgh uncaj^le of public trust, against
whom no complaint was ever made to this day,
as your majesty will jierceive by a paper mora
fully concerning that affair. The true causa
of it was, that those men being in the magis-
tracy, that duke and bis brother could not get
a vast bribe from them out of the towns -n
which was ailerwards obtained when they weia
removed.
*' The provost of Glasgow, Aberdeen ani
Jadburg[h were put imder the same sentenoei
for signing a letter to your majesty in the oon-
rention of the boroughs with the rest of that
body, which letter was advised by him who la
now your majesty's advocate, as that wliieh
had nothing in it which could bring them nil-
der an V guilt ; and yet those three were singled
out ol' tlie whole number, and incapacitated^
besides an high fine and long impruonment,
as to your majesty will more fully appear by
another paper.
" Sir Patrick Holme, of Polwortli. btioff
sent by the shire of Berwick to complain M
some illegal proceedings, and t'^ («btain a leffil
remedy to them, which he did only in Vbm
common form of law, was also declared un-
capabie of public tru9t, besides many mcHitha
imprisonment.
*' The provost ofliLuIythgo being complunad
of for not furnishing bome of your forces witk
baggage horses, was called beVore the council^
and because he said they were not bound m
law tu furnish horses in such manner, he. was
inimeiliately declai-ed incapable of public troati
and was both fined and imprisoned. i .
«' There are also tifty of the town of'dBfc
Johnstons incapacitated u|>on a very slig^
pretence, so that its very iutpossible for them
to find a sutiicient numncr of citizens fiur t||%
magistracy of that tovn«
and atkers.for OJfn^I 3Tafvcr8ntionB,
A.0. I
t!61
wtiidj iitruckas machjfnotmore, njainsthiro-
*e]i'n» nm^tcTf than against Halloa ; yet lie pre-
iiuiiu^i biHopeontssaiid iiigffuwty woulih>rOfure
him favour. Wbeu Ilatton came from Londop
" 5. Your subjects are 8oin dimes upon
fttight, and lonietimes upon na groutuN itti-
jiriioncd, and olkn kcjit prisoners many niontlis
and jear«, notliing being objccte<! to them, and
r lire I'eijiiirt'd lo enter themselves prUoiicTS ;
which is contrary to law. It wiis "m die former
article cx|iies*td, that many of tliesc inrsons
declttrod incajiable of public trnst, did ^Uo
DulftT iiiipri»otiiiient I and besides these in-
stances, lituicnt^nt general Drunniiond (whose
eminent loyaUy aiul t^rcM sevtices an; well
known to your majtsty) wasrequind to enter
liini»elf prisoner in tfie cjstle of Dunbarton,
where lie was kept one year and a bnlf ; and
vr^A made a close prisoner for iime utontbs of
that time, anil yet notluniif vias evi>r objected
to him to thii» day to justify that u?^»iye.
** The lord Cardro^s was for his ladies^ keep*
ihfif two conventicles in her own bouse (at
Mnich lie was not present) fiocd 110/. and
hath now b4>cn kept prisoner four ycum iti
Ibe castle of Kdinbur^, wbcix? he still remains ;
ahlioui^U he hath often pftitioned fur bin li<
berty ; and hW Patrick Holme hath been now
a xeofiud tmie ahuo«t one year, and nothinf^ is
yet laid to hi6 charge.
*^ licside:; ttie^e illegal impri.*!oni»eiit^} the
oncers of your fiiaje?jtie« forces frequently
'carry warrants with them for apprehending;
persons that are under no legal censm^t i**'*'
' luira been so much im cited lo appear ; wbich
I hmth put maoy of your subjects an<ier ((reat
' fan), tspecuUty upon what was done in council
tbfve years agr* : ca|jtain Carstair« (a man now
wdleDougli Known to yaui- majf&iv) clid in-
IrapocM Ktrktoim, an onted mioitierf into his
chamber mt Edmburgb, and did viulentty abuse
I him ; and desi^cS to liavi; extortetl some
I jnaiiey iiroin btm : the noise of tliis eo(uin§: to
tbeeanofone Bailey, bi-oiber-in-bw to the
■aid Kirkton, be came to llie house and bearing"
I bim cry Murder, murder, force* I open the
chamber door, where he found his brother-in-
law a4id the captain ^plintf ; the captain pre«
tended to have a warrant o-^ainsl Kirkton
and Uaity desired him tofibew it, and promised,
that all oixHiicnce should be ffiven to it i But
Ibe captain refusing to do it, Kiiklon was res-
cue<l, Tbi»i wa« only i!e1iv**niig^ a man from
Ibehandiiof a roy. ' * naluro *»tihi,'eth
all men to do ; esp* ' u joyncd with bo \
Tic^a relation. Tiie i,ii>iim compltiined of
tbii to the council, and tli*. lord Halt on with
others were apiKiiuttd t ■ -' n^^ tbe wit-
I neaacs: and when it w; licfore the
t-onr,<-il the duke of Ila;u..> ..., . . ; is of J^rcre-
fri^ce and Kinkarden, ihv. lord Coche-
; sir An I»i!^^ld I'riLiiroM', then
kli0r<! hat the rcjiort of the
lemu d ; but fbrit tiot >rr-
UlO^^ r : ■, ■■.,,■.,■.,, .^, v,-/e
VOJL XL
in the beq^inatDf^ of July ^ they proceeded very
summarily with biui^ and ur;^cd him to depon«i
as the rest had done ; he refused, seiing na |
man is bound jurati in projtriam iurpitudinem 1
Carstares did not shew any warrant, nor wa
cloatbed with auv public chnmcter, it was no j
"- waa ^
I«'" lui>i iiiiwi iiJ yj^\jy."'j iiiai iv^ •4Um *\'-i'k. 'OOtf %
piisouer.
" Those lonls were upon that so tiBpre^cnted I
to ynur majesty, that by the duke of Luudcr- 1
dale's? procurement, they were turned out of 1
the council, and all couimnnd of t!ie militia.?
And it can be made appear, that the captaia
had at tlmt ttnic no warrant at all against
Kirktou, but procured it aiU?r the nolence cjm-
mittL*d : and it was ante-dated on design to j
serve a turn at that time. This manner oif |
prt<cc€*liugs hath ever since put your subjects
under H;id apprehensions.
** There is one particular further offered (» \
your majesties consideration, concerning their
way of usinjj pmoners.
*"* Tb ere were 14 men taken at a field coa-
veatich', who without being" legtilly convict of]
that or any other crimes, were secretly and
in the niixht taken out of prison upon a ^vanaiil
siy:ned by the enrlc of Lynlyth)tyo, and the lord
Uattftn and Collioglon, and Were dehvered to
cnfitain Maytland, who had been pa^ to th« i
duke of Laudenlitle, but was then a Frencb
officer, and was making his levies in Scotland,
and were carryed over to the service of tbtp (
French king in the year 1616.
«* S. The council hath upon many ocea^
sion^f proceeded to most unreasonable and ar-
bitrar}' lines, either for sbght otlences, or for
offences where the fine is regulated by Jaw, .1
whu h they have never ixmsidered, when tho
{jersons were not acceptable to them : so tho
oi d Cardross was fined in 1, 11 U, for his ladies
keeping' two cotiTen tides in his hou^ and
cbristmng a child liy ao outed minister without
his knowledge, liie provost formerly men-
tionedy and Baily with many more Were al^o
fined without any regard to law,
^* The conned Lath at several times proceed-
ed to the taking of gentlemenii* dwelling-bouset
from them, and putting garrisons in them*
which in time of jjeace is contrary to law. lo* '
the year 75) It was designed against twelve
of your m^^esties subjects, and was put In cxe-
ct it ion in the houses of the earl of Calendar,
the lord Cardrosse, the lady Lumsden, Slq. and
was again attempted In the year 78, tlte
houses l)elonging to the leirds of Cosnock,
Bhigati, and fcowal, and were posse^ned by
souidier^, and declared garri^ouH, TNor did it
rest there, but ortlern were i»ent fmm the coun-
cil, requiring tl»e countries alx^ut tbo^ohouscn,
to funuih them for the sunMii i^^ u>r. ynd to
vutipty them with ni < try
lolaw. It was again uck
Holme came to desin? a rttutxly ; ami v Jin-
mon juitioe being denied hiiUf he tisei a k^^if
34 CHARLES IL Proceedings agaiiut the Earl of Lauderdale • [164
the rest, that he might knotr what tliey bsd
(Ie|ioneil ai^ainst hiin ; but craved that he might
prive liis juramenium purgationis that he waa
free uf these luisappl ications which the fmup^CM
163}
w1:orc the case may he criminal, Dor to accuse
hiinsi-H*; hut he guvcinareprescntatiunof the
biate of the Sliiit ; they refused liim a heai'ing',
or a si^ht of the process, or the testimonies of
pruteslatinu in the ordinary ferni of law, and
. \t as thereupon kept for manv mouths a pri-
soncr, and declared incapable of all publick
trust, '^c.
**■ There is anotlier particular, which because
it is so odious, is unwillingly touched : yet it
ifi necessary to inform your majesty about it ;
for thereby it will appear, that the duke of
Lauderdale and his brollier have in a most so-
Icnm manner broken the publick faith that was
given in your majesties name.
'' One Mitchel being put in prison upon
great suspicion of his havine attempted to n^ur-
dor the late arch -bishop of St Andrews, and
there being no evidence against him, warrant
was givrn by tlie duke of Lauderdale (then
3'our majesties commissioner) and your coun-
, cil to promise him his life if he would confess ;
whereupon he did confess, and yet some years
after, that person, who indeed deserved many
deaths, if there had hcen any other evidence
af^aiust him, was, upon that confession, con-
v.'cted of the crime, and the duke of l<auder-
dale and his brother being put to it by him,
did swear, that they never gave or knew of
any assurance of life given him : and when it
was objected, that the promise was upon record
in the council book's, the duke of Lauderdale
did in open court, where he was present only
as a witness, and so ought to have l)ecn silent,
threaten them, if they should proceed to the
examination of that act of council, which, as
he then said, mifjht infer perjury on them that
swore : and so did cut off the proof of that de-
fence, wliich had been admitted by the court
as <,^ood in law, and sufficient to save the pri-
soner, ifprovcd. Thus was that man hanged
upon that coiiifsbion only, though the promise
that drow it iVcni him, (loth appear upon re-
cord, and c^n be pro\('d by good and clear
evidcrn-c. Antl from tliis your majesty may
jad;^* , ^^liat cTtdit may be j»iveu to such men.
*' >V»' do not at p.-tsmt enlarge on other
j»arl!c-'ilars tliough of great importance; such
Its inoL('.p<>lios, s( llingplac rs uf honors, lumi/ig
men of known int«>gnly out of tlieir imploy-
int^nts, to which they nad a good and just
right during their lives : the profits of one of
the most considerable of these, being se(]uestered
for i:ome lime, and apply ed for the dutchess of
I^uderdale's use : the treating about, and re-
ceivin«,»"of jrroat bribes by the duke and dutchess
of Lauderdale, and the lord Hatton, and par-
ficularl}' from the touns of £dinboroug[h, Ab-
berdeeu, Lynlithgo, and many others, tor pro-
curing: from your majesty warrants for illegal
im))Ositinns witliin these towns : the manifest
and |)ublick [KTverting of justice in the session :
besides the most signal abuses of the mint
and copper coin, that are most grievous to all
jour subjects. But the uumber of these is so
fi^ *4 the J will require so many wit-
nesses, to be brought hither for proving them,
that we fear it would too much trouble your
majesty now to examine them all : but your
majesty shall have a fidl account of them af-
terwards.
" One thing is humbly offered to your Bla-
jesty, as the root of these and many other oppres-
sions, which is, that the method of governing
that kingdom for several years hath been. That
the lord Hatton and his adherents irame any
letter that they desire from vour Majesty to
your council, and send it to the duke of Lau-
derdale, who returns it signed ; and this is
brought to the council : upon which if at any
time a debate ariseth concerning the matter
of that letter, as being agdinst or with law ;
and when it is proposed, that a representation
of that should be made to your Majesty ; then
the lord Hatton in his insolent way, <^ls to
have it put to the question, as if *it were a
crime to have any warrant either debated or
represented to your Majesty, which is procured
by the duke of Lauderdale or himself; and
this is
echoed by his party, and by this i
any further debating is stopped.
*' There are some other particulars relating
to these heads, that are to ne offered to yonr
l^lajesty in other papers, w liich are not added
here, lest 3'our Majesty iihouid now be troubled
with too long a paper.''
" The Impeachment of The Bake and Dutekeu
of Lauderdale, with their brother my Ltrd
ilatton, presented to hit Majtsty by ike
City of Edinburgh. The matters affmci
particularly relating to the town qfJSdim'
burghf humbly offered for your Majestm
information. Before thematteroffaethe
spoken to, it is necessary that your MttftUw
be informed of one thing upon which tkm
whole affair Itath moved.
*» The citv of Edinburgh had at several times
given con^idei-able sums of money to the duke-
of Lauderdale, amounting to upward of twelft
tliousand pounds sterling, and tne lord HattOQ,
brother to the said duke, being inraged by tint
their former practice, and hein^ arrived to
great height and influence in the administralMia
uf your Majesties affairs in Scotland, did thera-
upon resolve on a design of getting nHoiiej
for himself also from them, as will appear to
your Majesty by the following narration ; bat
the magistrates at that time, and such others
as had then the principal influence in the de*
ministration of affairs m that town, being ho-
nest men of good fortunes, and not to be
brought to comply with his design^he be»
thoug^ht himself of all ways to vex them ; end
knowing they did much value the prosperity
of the town, be thou^it that the first meeae
for promoting that ms design, was to have
them threatened with removing your Miyealial -
165] 9ni alheti, for Official ^Mvfrsatlcns,
prohatio loaded him with. His i»bjecli*ms
a|;aiitst sir John Falcoiier-s df^poninf^ against
hirn ar<j 1. InimtcUia 2. lie is comciui
€rmini$que sticiu$, 3. lie depojit^!; to liberat€
A. D, 1682/
flS
, ^uhliqttc Jttflicahira from iliat city tr>8tcrlin,
and pers evaded hU bi-olht^r the diiUe of Loiiiler-
dtkle to move ynm Majesty to that purpose j
but belo^ disappoiril<^d of that firoject by your
Majesties royal wisdom, your Slajcsiy looking"
tipOD St as IT it were to declare to t!ie woild
tnat yon were jealous of so great a part of ihat
jour ancienl kingdom, he br^lhoui^lit himself
of new ways to accomplish his dcsljijn, f\i\r
which he judged nolhiup^ so proper and cflec-
tital, as to distuHithem in the choice of i!ieir
,iiiag:islrates and tovva-counsel ; and hy nil
meaos possible to get some of bUown cbu'siiiiM;,
lit for his own ends, brou^htiu to the admmis-
tration of the affairs of that crty. Tti order to
which, being^ impatient of any longer duhiy,
he laid bold of what follows, beings the first nc-
j cosion tjiat offered, though a veiy frivolous
' one.
** At Michaelmas 1074, The said city of Edin-
burgh beinsf to go about the election of their
magistrates for the ensuing year, there was
procured a letter from your majesly to your
jtrivy CMunsel commanding theni to tbibid the
iiiajjist rales and town counsel to proceed in
their elections, !)iit to continue the magistrates
thai then were, till yrwir Majcsty^sfiu-ther
plcflsure should be knovin ; tbV reason su^-
I Ifcsted to your majpsty for it, was taken from
this circamstancej Tfiat the elKction ou^ht to
he made upon the Tuisdny affcr Michaelmas,
sud (it happening this year that Michaelmas
fbll to be on a Tuesday^ they were resolved to
proceed to their etecti<uls w^Kyn Michaelmasj-
day.
** Though this was a very saiall maUer, and
upon Tcry g'oinl and prudent ronniderations
resolved, as will afterwnrd appear, yet was
it represented la your majesty &£ a factious de-
iriy^, and an innoratioo of dangerous conse-
f|uence, tending' to create and maiotairi facliori
in that city, contrary to your inajpsties service.
Your majes'lies foresaid letter Ix-in;^ inti mated
* to the magistrates and town counsel, they did
Immediately give e%act ohefhcnce to the same.
r •* They did also represent to your majebties
privy council, the rights thai ihtry had lor
c busing their own magistrales, which httd
lieeo granted to them by many of your majcs*
ties royal aurcstors, and confirmed by many
jiarlinments ; by vertue of which they humbly
conceived: they ought to he suffered to pmcceiJ
iu iheir **le<"tjons.
** They did also represent to your majesties
imvy council, the reasons which had moved
theifi to resolve of making their elections on
the said Ttiesdny, being Michaelmas day,
whicti in short were, that liy their constitution
they were obhj^t!<l upon the Friday bvfoie Mi-
chiielmns, to make if^e list out of which the Ma-
gistnttcH arc to he chosen ; aftor tin? doing of
whicli there is a surcease and vut::tUon of all
and exoner himself. 4t To elicit ilii» deposi- ; i
lion from him ae^ainst Halton, tht^re were pro- *
mi»es of personal favours to hiinself ; which ii ,
the highest degree of bribery and corruption.
ordinary courts of judicature within the l^mTi,
and the whole time is spent by the commuu
j>eople and tradesmen of ibc town, in rioiiu^ .1
and drinking, uotil the elections lie finished^ \ {
which in I his case would have been twelve '
ilays ; which they did in prudence think they ,
ought lo shorten, not conceiving it eontrarv iit ^
the least to the established rules of their elec-j
tion, ,
*' On these things ihey did humbly cnivi*
your Majesties privy council would be pleased
io represent lo your'majesty, that thereby they
might be freed from theauRplcion of any fac-
tious design, with whicli they were charged
by the said letter.
' ** This being, through the influence of the^
lord Hatton, refused by the jtrivy council, they
dispatched a gentleman lo the. dtike of Lauder-
dale, with letters and instructions full of res-
pect and subniission to his g^race.
" The gentleman at bis first arrival found ^ J
duke Lauderdale very kind, and was mad« ,
believe he should he quickly dispatched with ^
answers according to his desire ; hut soma ^
delays having fallen in, the duke of Lauder^
dale felt likewise upon thoughts of getting mo-
ney tVoiD ttie tov^n upon ihls occaiiion, audi
therefore pretending still more and more kind-
niina to the said gentleman ) hu did first by '
some insiQuatiims let fall to hito his expecta- ^
tiou, and at last flatly asked him if he hati not'
brought a heavy purse with him ; whicli
when he understood he was not to expect, ho .1
changed his method, and grew haishcr ; and ^ j
having dctaincn! him live or six weeks*, he th^ ^
said duke entered into consullallon with his old
friend sir Andrew Ramsey, how to order the^l
affair. By his advice he did write a ktter and /j
sent proposals to the said town, That they^f
should give bond and security, that tba
to\f nsmen should lire regularly us to all mal-
ters ecclesiastical in the largest extent, as thO|l
same is determined by the late acts of parlia- ^
ment ; and to keep the town free of all sorts ^
of tumults, either of man or woiuau : Judging .
that this was impossible for them lo perform, J
and uofavoui-able to attempt, and that there-
fore it would oblige them to make offera of.
money.
** This letter was all the gentleman could
obtain, and having gone back to Scotland and
delivereil it to the magistrates, they were so
far fi"ora lieiug carried in the design,"tbat they.]
were glad of that ojiportunity to witness their']
zeal to serve your majesty ; for they did very
heartily comply with what was proposed con- *
ceruing the bonds and securities iteomnded;. j
and immediately urged that your majesties'
officers and lawyers would cause draw sucU 1
bonds and securities as was fit for the purpose ;
uffenng good security for great summs ofu
ney for lie performance. But thii ll^i<. Wvcq
16T]
34 CHARLES IL PracudingM agaimt ike Earl of Lauderdale [ IQS
Tbea he gave in bis defences why he was not
liable. 1. Because be had exom*ratioris and
discbarg^es from his Majesty. 3. Because he
was pardoned and included in the general act
the tbinff truly intended, their ready coni(>li-
ance with it, set them yet farther of! from their
desired settlement, an*! served for no other in-
tent than to cause the lord Hatton to double
his diligence to find out new means to mollest
them ; to which end it was alledged by him,
that tliey hud of old forfeited Iheir privileges
and liberties by some great misdemeanour, aud
that therefore they had not right to cbuse their
own rj.kgistrates, for which he would needs
have tliL'ir ni-ords searched ; and accenliugly
they thL-mse!i es, with their books and reconls,
were in a most unusual manner brought oitcn
before him •mm\ his friends, though they had
not authority for it, to the great di&turbance
and aanoyuuce of the citizens, by beuig abun-
dautly j<'J;ous of their liberties, were with uo
smallcare kept within the due bounds of mo-
deration, by the loyalty and vigilancy of their
inagi>traie9.
<* Thcv the said magistrates, finding how
they were used at home by the lord Hatton, did
again appiv themselves to*^the duke of [jaudcr-
dale, both by private lettcra to the duke of Luu-
derd.ilu aiidhLs duchess, frum some of the most
eminent of them, full of assurances of particu-
lar i-espcct to their graces, and by a public let-
ter to him from the whole town council, ofFer-
ing bond and 8ccurity to him in tlie terms pro-
posed by his fore-mentioned letter. But this
could not prevail, it being c4)jected to tliem,
from some frivolous things the lord Hatton had
scraped together out of their old records, that
they bad lost their liberties, and that the riglu
of ch using their magistrates did no more belong
to them.
** Then did they produce their charters, and
did convincingly clear all mistakes, and evi-
dently make appear that the right of chuulug
their own magistrates did remain to tlicm un-
doubtedly aud'intirely.
*• All tliesc things being cleared and open,
they expected to be restored to the free exer-
cise of tlicir election in their accustomed man-
ner, 'riiey were still kept off wiih delays, ru-
lil the lord Ilntton, in pursuance of his tJebigo,
fell a praeti^ing with some few of tliemseh es,
wha did undertalLe witii his assistance* to get
such eleote<I as were fit for his ends ; where-
upon he writes to his brother the duke of Lau-
derdale to move your niajesly for a letter, and
accordingly the fetter was procured from your
majesty u|>ou the 7lh of August l(y7o ; wherein
your majesty, all.'T rcciling your former orders
in that affair, did declare, that you were well
inforuu'd t-f their obt^licneo to your commands,
and of their dutiful carriage in 3rour concerns ;
and therefore ordained them, the next day afcer
the receipt of the letter, to convcuc thcir*wholc
council, ufier their accustotiticd manuer, and
oat of the lias already made, to elect the lord
ilies, and oSiher officers.
of indemnity past in 1679. — ^Tbis was i
as a decliuing of them; and they repNellcd
them hoc loco^ seeing they could not uindcr
them to enquure and proceedper modum inquid-
« According to wliich letter, thay ^d the
next day proved to theur elections, but instead
of those whom the lord Hatton expected they
would have chosen, they did elect some men «
good fortunes and integrity, not at all fit for hia
purpose (these who had eng^aged to him not
oeiog men of that esteem or inflheuce as to be
able to carry his design as they had under-
taken).
*' The new magistrates and council, did in-
mediately af\er their election, acquaint yoor
majet*ty with their procedure, and gave yonc
mayesty great acknowledgments and assuraucea
of their care of the peace of the town, and oC
your majesty's service in all natters, both ec*
clesiastical and civil.
" The said lord Hatton hein^ ezoeediiigly
enraged at tliis act of theirs, did by advice of
sir George Mackynge, now yoiir majesty's ad-
vocate, send a letter to the duke of Laudmlale ;
to which he procured your majesty's hand
upon the 25th of the same month of Augos^
by which your majesty ordered your privy
council to intimate to the magistrates and town
council, that it was your royal jdeasure that
there sliould be turned out of the town ooancil
and deciared incapable of any public trust in
the said town, twelve* of the most eminent of
the same men with whom your, majesty had
expressed yourself so well pleased, an/i whose
actings your niajesty had approved, hy your
letter of the 7th of the said mouth.
'* This was accordingly executed by the
privy ci uncil, without ever so much as calling
before them the said persons, tliough great
crimes were laid to their charge, as being fac-
tious pei-sons, and misre])ic*sentin«j|' your oioi-
jesty's proceedings, without mentioning any
particular fact of theirs w hich could import any
such crime. And though the)' be threateaed
by the said letter to be pursued for these gnat
crimes, and that your majesty's advocate is
commanded in the same to nisist against thauiii
yet could they never obtain from your maipi- <
ty's privy council that they shoultlbc triedmr
these things, though by a petition signed by
tbc whole twelve, they did represent tlie great
prejudice tliey sustained both in their reputa-
tion aud trade, by being kept under such
tbrcalcniugs ; and> therefore did humbly oflsr
themselves to the strictest and severest tiiaL
To which petition they never received any ai^
swer.
" To make appear to your mijesty
tliese things were done for private ana a
trous designs, and not upon account of tbaill
affocteduess, or factious dispositions of the jsea,
as was pretended: your majesty is hanUK
prayed to take notice of these particolan fiC
lowing :
<' First, There are three of the most
deraUe of these very penNuui n^ hadil
WS]
tind^iertf/pr Official Mahirmikm,
Tken being soniewtmt tlifiidcut of Uie
1lLiti{j*s luJTCicJtte, on the pretooce li<5 was 8oui«^-
limea ottt of tv^n, tliey cuu^oiued »ir Futrick
Hume advoc^iie to hiuit wliu Hiiisa^i^orn enemy
eliftrt^Cil wilii so (^reat crimes, admitted since
tlmt time, hy brilun^' llie thicliess of Lauder-
lUtc, iutoauu&t iji youi' majesty's affairs iu
HcoLl^nd, more emiit^nt aiul considerable thuu
iiy Iryst ttie toivu of Cdiubur^ti can coufi^r,
itie paying otf your lutije^ty'ii foroeiv moA.
^nuioj,^ in yonr uiujc-sty 's excise »
♦» NcL'oudly, Na siiufier were these twelve
ea turned out ol' the tov^n council, but atier
limay ip-eai aiMl cssenu.ii infonaaliiie.^ (with
tbe reciuU of. which it v* ncedlejis to trouble
jottT mjijcsty) tl**y lUx-li'd lor luagistratew
ineti of no ri*|»ijUation, cither tor [nu-ts, eslaiet or
JiOQcfitv : mui though thest: bonds and secun-
lias, which had been demamied from ih« olhi^r«,
and ctin^eiUeiUto^ by theiD> was furtnerl} prt •
lijjidcd to he of grtat iiiiporl.ioi^ Iw your ma-
j^y^i» jjcr\ice, yet they were nut no ntncU as
omx; dernimdcd, k'ith<:r oy the duke ol* Lawkr*
dak?! or l\w lord Haiton, troai Iheia men who
were now ehoacfi.
*♦ Thirdly, These new magistnles were not
long io theit seats, w hen otf comes the luask,
HJuTtbtf trtic desi^ of i^etting money appears.
For by an act of 3ie town council tht^re ii; about
5,000?. ^tefhug* diHfiosed on auiongst tlieir
nameless friends, whidi were the duke of Lou-
dL'rdair^ tlic lord Hatton, and some other of
Ihuir frienih. A ^reiA sum tn be got from that
«Mty, con&idcrtn^ tliat the duke oi Lauderdile
tio^l {Tui bttons thai about Xt^OOQL slerlio^
from ihcni.
'* The duchoKS of I^ii<!erilalef did also since
that time eutltavouf Ui \fiti more moni^y froio
I w raih threaieu the
tor DoC i^iviiM^ htr a
i 11 11 the good sho s«id
liiMiK M. ' .V"ujut^ the fa%ours
: h .M Avr, tuau been pleased to
I, I , <Im L' hy hertitilf.
[ j>our towQ becA abused,
f< > lo^ magtstratea witliout
« iL^e, ia a titiMi wl|«ii the
' iienfiods 10
lit . ..■ liv and ca^
[laciU lu i>uw your ni4jw»ly,"
Iti tbe ** Aecmmt of y^otland'^ 6ricvances
by fwBwm M' the duk«? of Lauderdale's Minis-
trv" iiisf rtP'f \u ilir- <' Siiit,- Ti-ids" (privately
J harles the Sc-
- 169-^) p. '?i>0.
MT^t •*""•'■ ^'-" i^smtje is, tli« ' corrupurin
'*4fe/ IV hereof iny lord
w. LaiMiordale'n brother tf
Ibi* mmigimmik wu gvoundcd m tlie
tnveNiJ itairHiUr of tb« pg^lg ; iKJba bare
f v«#rftl ymm^ tW ilie
^ - "T coiu ia aiMisiMy dimipiiinit,
both m Ai4i H«i|(bt oodrAiitMMi to liiii noiion'it
They
to IlHiton; thii disflatUfled Ui« advoCAt^.
frame the report niiliout allowing' ' <
sight of it; luid sent rerihamltli \
With It to London ; and though the duke of
add to the resentmenti that tlie Kante tofd
itattoti havini; some years a^o tiUed the coun-
trey with a !i^! ' i ^ coiu^ without ohs^^rv-
in;4 either the *\ ' the weight and valtio
pix^ifiliLd, vvu., ii. . . ,i,,t it!a^ hv --i- )• trl Laub-
dirdftlf's mciuis secured and ud r it
i* iiJao rvrn. ni1k*M^-l, tlwit thi :„.... .;; enables
luua to t aion of our iiitvcr coia, th«
ftmcli dii I ^ J d the LeggdollorSf usually
imi*orted by our merehanti^i and current
amonyfut «» at ACt^ per picce» were cryei!
down by tbe duke of Laudc4*dAle'« procurt-
ment to 56(/. for no better reason known, than
that tiicy mi^lit be brought ui lor bullion to th<f
3Imt-hou9efor his brother's benefit : but though «
tliat uU demanded in |iarliament about thiit
mitUY was, that there might be an exaiMii-
nolioa of the coin appoiatied, and an accounl
i^ivcu ol liie bullion which hath been loi^ IM|^-
Heted \ yet tbe nu^monal given in far that
el}«ctwaa Qol regarded: it is true that my
lord Lftuderdale after the I>eceniber adjourn-
ment of thi» parliament, did move hin majesty
to write n kftter, and thereupon bring the bum«
vi^%H to a tryoj Ldbre the eooncil % but iu a
manner m partial^ that I profcv it is my a«l-
mii-ation how iiny man $iioukl have a ivinUl
deuce Ktmn^ ennuj^h for such pructice$.
sidiject of our complaint in the Ati»ck of our
current mony, and all appointvd by his loa-
jestiea h*ilLT, is that there shouUl be a try at
made iij^ofi tile e»!iay boxe^ and the piefee
thti lined: 1 shall not Kay, that the
ov* I tiof hath been altegHbiT in nijr
lord 4JU10HI H „wt, ywmer and Iruiit theaf* yeap»
hyt*tt«l», y«i so certain it i«, that tXm box or
|iixie hatb been of late ae greatly n^kcitdi
that one of mv lorda nonmiimoiieni fl^da ap»
^utad for the exatnen, eoeld oot forbear to
say, • Tliat they were niet to see whether the
' oScerskei tlii: JUint were ae iBuch IbiiWae
' tbey west suape^ed to ha knareat* but not*
withstanding^ tbiti tbe tryal goes on, and mora-
o% er the pieces are not brought to the esaay
sercniily, but the whole (wiili what mixture of
finer pieces coined and conveyed in on purpose
to compense the bascc who can tell P) is melted
down together in one mass, and thereur^in tbe
easay made, and the report thereof with some
wraall hrigots sent up to the king \ which,
pnjfing (10 be sure) according to ihr dp*ig:0(
r the confrivance, his m^esty v\ ' *ci
days M»ndH down a second ^ m
'.viiuiril,js|niilytag htssaliafiMtieii, »tiu vmung
UaCtiHi.anS. i4t real oi' tie aftam to {w ex^
oikemied : bnt wben this letter is fead, it is op.
po«ied Oiat tbe gnevaooe of the l^lint had been
I lublf^I iti u»rh :^ in. «nt, where the tryal sb^
t his lOiyttiM fin
i%la>Neiiia4^ aftte
tllf«r tall^6ed er
c a iprtMittd af ntaaa li'
Oi CHARLES ir. Proceedings against the Earl ef Lauderdale [17f
and put a stop to the coinage till farther order S
aod ordaioed his adrocate to insist against them
either criminally or civilly before the council, as
he saw just. And now since the King has ordered
them tu be pursued beibre the session for restitii •
tiou, of what tliey had intromitted with more than
they had warrant to coin, Halton, on the newi
of, his brother the duke's death, parted that
same day fur London that his sentence was in -
timate ; and a committee was named to go and
close up the Mint- house, and seal all.
November 7, 1682. .
" At Privy Council, his Majesty's Letter
was read aueot the officers of the Mint, bear-
ing, that where he had formerly orderered them
to oe pursued for their malversations before the
Privy Council, or the justice court ; now he
had altered his puqiose, and ordained his trea-
surer and advocate, to insist against them, before
the lords of session ; and in regard John Falco-
ner, late warden of the Mint, was omitted iathe
former order ; and yet from the report, it appear-
ed, that he was as guilty of malversations as
the rest ; therefore he ordained him also to be
pursued with tlie rest. — John Falconer, on the
news of it, died suddenly of crevc'tenr at Uii.
house of Phesdo. And on the S4th November
1682, the treasurer caused put up the ^ifl of his
moveable escheat, upou a report of his having
bexnfelo de se, and g'lUed it to lingh WaUace,
for his Majesty's behoof.
January 19, 20, (J'C* 1683.
His majest}''s advocate against the enri of
Lauderdale, lategcueral of the Mint, sir John
Falconer warden, and the officers of ibe Blint.
To the first article of the summons, bearing,
that they were liable to rcfound the quantities
of the copper coin wherein they had exceeded
the warrants his majesty had given them for
coining turners. Answered, They could not be
made accountablcfor this excess, because his ma-
jesty not only by two exonerations produced, but
also by the general indemnity in August 1679^'
had discharged and pardoned the same ;
neither could the exonerations be termed suIk
repiitious or obreptitious ; and that in law all
such writes and rescripts do tacitely bear thie
clause in their bosom, * si preces veritate nitan-
*■ tur ;' for though the doctors make a great-
noise of the efficacy of that condition, ' si pre-
' CCS veritate nitantur,' yet they teach us that
any of the following clauses take it off, tis.
either to insert in the write the words *• mota
* proprio, ex certa scientia, ex auimo deliberato,'
or *• ex plenitudine potestatis ;* or even the ge^
minatio actuum do evacuate it ; and with us,
by our style and practice, the docqueting of
writes to pass bis majesty's hand, the passing
them through many unices and seals, the
presenting tnem to sundry courts and indi-
catures, the recording thein in their books or
registers, the obtaining declarators upon some
of them, are far greater checks and controuls,
and more fit to purge and obviate fraud oi*-
obreption then these alore meiflioiied inventioMbS -
I71j
York had promised to Halton tliat no deter- i
raination should follow on it, till he were beard
bcfurc his Majesty; y^H a Scots Council is in-
stantly called, who on reading the said reiiort
of the coniinissiou fly very high, as they had
l>ccn tune«l, (Halton not iVing yet gone up),
and procure a letter from his Majesty depriving
him of all his places. Halton, to preVent all ha-
zard from the extremity of their malice, fomi-
ctl an ample remission of colonel Lock hart's
and his brother the duke of Lauderdale's cxon-
erution ; but the duke of York said there was
no present necessity for the passing of it by
his Majesty.
August :i\j 16^2.
" At Privy Council, his Majesty's letter was
read, against my lord Halton, and the other offi-
cers of the 33int, bearing, that he had considered
tlic report of the commissiop named by him to
try the case of his Scots Alint, with the advice
of hh Scots council at London, and found that
th;;y had malversed grossly in tlieir trusts;
and therefore suspended and deprived them all;
Mint officei*s so long as it was manifest, that
almost the whole ot the current -coin is defec-
tive and debased ; and lastly, there vras offered
a bagg of uiony lately received out of the
3Jint office, scaled with tlie officers seals,
which they could not but still acknowledge,
and it was desired that there might be a tryal
made on the species therein contained. Not-
withstanding all which, my lord commissioner
and the plurality of the council proceed and
vote an exoneration conform to his majesties
last letter. Now is not this a noble way of re-
dressing grievances, to purge the author and
leave the thing untouched ? Nay to make the
greatest aggravation that can be of his felling,
viz. The corrupting or frustrating of the
chequer tiie lK>st ground of his clearing, and
all this contrary to the reclaiming evidence of
almost as many witnesses as there are pieces of
his maji.stii's coin ininte<l in Scotland ; it being
ct^iiain that amongst hundreds that have been
(rycd, very few iiave been reported to be
standard."
And under the head of the eii^hth grievance,
^vhieh is ' The mal-ad ministration and profu-
sion of his majesty's revenue* it is said " My
lord lliitlcin hiith got in donatives to the value
of I ;>,nO()/. stti ling ; and hath moreover yearly
1,19(;/. sterling: beside ho hath the profits of
the Mint and liullion which last did render in
king James's time, 1,000 marks Scots weekly,
amounting yearly to 2,500/. sterling."
It may here be noticed that Koger North
(•ivcs hii^h praise to the duke of Lauderdale for
his ^^oveniment of Scotland. ** It is well
known" says he, '* that by the prudent con-
ituct of the duke of Lauderdale, Scotland was
iu a {Misturc not only of safety but (if needed)
i»f giving assistance to the king. No barm
could get in or out there while he was commis-
sionc^r." Ezamen. part 1, chap. 3. sect. 90.
r
anit)(kert,Jitr O^cial Malveritttiont,
173|
vf Uie dodors; and as Ibis proven t|jc vnll-
dilv of tUe exotunilionH, ^o the indcmuily
CfrtAini^ cut* iirt' ihi» pniiiUtt : Fcr ttUHieslieA
of all Ibuipp* Ai*c mtrst sacred, l>ctng land marks
aud s«?ruritifN * rmn lanccndii, lioii utovcuda/
unless hti \y>' uiih tliat blooily Roman
€m|rt?n>ir C: it the whole pe«(>le of
Jloinc roiglii ntire out one nrcU *■ ut wnito kin
* pcrcutrrct.* — See ihc (3 fib act oV paHiuinenl
J 663, and act 10, Parliament ICC'2 } wbicli
are arin i»f iiuJtMtjntl y, and exempt from it the
rueddk-rs witb the public nioncy : B^i' lliis ob-
livion and iad^mnity in 1679/b more ample
tb«n any of tbenn/ being" drawn in tbe most
ample and coraprehcasive terms dcviseable as
moioly dciiignea to secure Lauderdale and bis
party for the highland army that tlicy sent in
wi»oo tbe west io 1678, Sec, and the pardoning
ilie rebels who roB<; at Both w el -bridge was
but a sbam and colour to draw on the other.
The lords in Fairj^ and Klf's case 13lh Feb.
168*1, and in 51r. Jolin Kincaid's Ist March
1683, fovnd that tfie f;aid indeinnity did not
defend against restitution, and the civil effects
of damage and interest, but only from punish-
ment, and that tbe • vindicta j»rivaia ct publiea'
<lf>^^' ""'' 'I by the indemnity diflercd from
1 because i\ie rindicta priritn was
lliL __.:..^,^iion of goods, and I ho puhika waa
the inflicting tbe pergonal punisbment ; which
Iwij w^re only remitted by the net of indem-
nity, but nowise simple rcRtittition. A dis-
*'barge that sir Walter Seton bad got from
the king of hh intromissions as collector, did
not hinder but the exchequer forced him to
compt again ; apd none will affirm that tliis
indemnity in 1679 would defend the treasurer,
ireas4iFer depute, or sir William Sharp as casb-
ket^per fi^om accomptlng. The lords Ira-
ni' ^ ' ^- -.. , Uie parties, advised this
y MformatioiiS( andrepelltd
tU uL.tij,.^,, .» liiid tbe superplus of tbe
coinage more than wa^ contained in the king^s
warniDts, (though it could not be iostrijcted
from the exchequer rolb, or otherwbe, that
tver Ibat superpma was accompted for in tbe
exchequer, or looke«l upon aa any part of his
niajesty*ii revenue,) did not belong to the offi-
cers oi the Mint, but io the king; and that
the cxonenitiT>ns in tiieir narrative were but re-
latireto the wamiflts* and so c-ould not excee*!
them and that tbe act of indemnity did not ex-
tf I ' * procffjs, which was not penal but
/ o onlvt and for restitution. Tbe
^^ ' were ; ' The lords
founded on l\w act
ut ?>j ,iiiiiii-^ V. and t '* ' ' nds
* t ; as also repel tl nee
i ,1 it,r> ,..Mfv» .,» ♦!..-. j,j,. , ,« ., jitr-
, as a part of
?vnrnte insiiits
'■ ' I >f copper
^ < I lie war-
^ rmts ; and repi i thiit aliedjreance ioundcd on
lb*- f xunrrTHirni", and Ihid tbtJtp exonerations
^^extend n'^* in lutbi; (pjuntity allow-
t^ r^ . . . .1 V . H .ud MOt ^ iba tiuilvcnia'
^^^.extend
^^\
* lion in rtlailon to the quanliiy rx^eedcd; aii__
* repel the ailed geanoe founded on the act of
^ indemnity « and tind (he •^finitr iAtuior srcure
* the defenders froth i*lc in rextitntioo,
* * in quantum loci M;h sunt' by tbv
* profits of the (pi niiiiy ot cop(ter Coined
* more than was contuiocd in the warraiMs/ *
*' Tbe king's advocate repitscnled Io tbe
lords, that !iow fi»r tiny Itud rnadc prolli nnd
bencllt could not be the i ule ; for what if it
were not extant, but sptni in livitjg bigb,
or in playing and drinking? when on tba
lords expuniitd these words out of Ibu in-
terlocutor, • in quantum sunt Iocupk»tali j* and
made them simply liable, whether * in rem
* versum' ornot.
** Tbougli tbis debate and it& interlocutors
took up se^^raldays from tbe 19th to 26ih Ja-
nuary, yet it will not be fit to divide it, but to
give it here altogether.
•* It being further allcd^cd fur Lauderdale,
and the i;Uier o^Hcers ol the Mint, that no
more of tbe copper coin coM be adjudged to
belong to the kingbutatwelvth pari, (which is
tbe propot ttoii be has of the Bilver) and tliit
also with dciluction of the price of tbe cojipvr,
the expcnce of working, and the fees oi' the
workmen ; wiiich beiu^ dtfaJked, tbe free
excrescent and superplus profits, over and
aliove all these abatements, will be inconsider*
able. Notwithstanding whereof, tbe lords (bund
the whole copper coin made and lituintx^,
more than the officers of the Mint bad hii
lnaJe^ly*s warrant for, did intirely and in
solidum belong- to the king) without any allow-
ance to be deduced for the metal tnatter or
tbrm« Imo. Because they esteemed it *rcs
* ftiriivaet peculatus pecunite publico?.* — But if
so, then if not penal, yet it was * mixta, partim
* rci persecutoria, et paitem no^oaliK ;' and so in
part pardoned by the indemnity : \Vhich forced
them to run to a secoud ground, viaf. that it
was tbe king's ^'zirf specifitutionU ; the king'i
^anip and character being impressed on it, ne
became * domiuns totius tam maieriie quata
* formie.' But here maUria being poUntior
aud predominant, ^ ct reducibilisadpriorein for-
* mam, dominus materiai* became dominui iQ*
liux, 2do. By the R^mian law in that *• modus
* acqutrendi per speciticatioDem,* the owner of
tbe matter bad an action competent ' ad esti-
*■ mationem et pretium num materieconsequeo-
* dum.' This swcm\' i the prior mter-
locuior, and not beii ^ible in Uw ; tti«
next day, the <^iise iKMUg again called, it fiaa
insUtod for the earl of Lauderdale, that ha
l>elioovetl to have deduction of the mattpr of
tlie copper; for atn^ tbe induction of the
kijig'n irojis and impriMs Inmi^mitted tbe pro-
perty to the king, so that it might not do Jur^
m prejudice of the ^ !"* i* im!m* ♦ d * ud pri-
*orem materiam,' 'uuita iioa«
* pms «t poteutialr' u! sr ma*
* icriam bic* yet it was i\ u
of the price and valtjr i,jr
* rot non dtl>et lorv; ' :% ulu^rtu* ^'
ami tbe tndcmatiy j^- . ^ , . , . rimini^l dtj^
I
I
I
175] 34 CH ARLfeS II, Proneilngs tt^ainsl the Earl of iMuderdah [ iffi
lint^uency in it. The kiii'/s adn»cate being"
beiiteu troiii Ihe notion of «p<rciticalian, ran to
tbat uf Bcce«»ioUf that \\ became the kin^^s
/ure iicceMfOfitf, like a biyat^ j^ieMing to the
picture drawn ibercupon; and he being in
doh to tipply the kii^^ii irons to tnorc metal
tiiaf) he bud warratit fbi% he ougiit not to reap
fecoefit • exsuo delicto.* KepU^,Thai decision
id' Justinian'* wassini^lar * in picturaob prae-
' stanttam artis,* and yet it still went cum ♦ onere
* pr^ii tuhulae/ Vea, bvthe Komanlaiv, * eliam
* in per&oiia praedonis bent^tus vvsum e«t dc-
*4iicere iiiipcii»;u8 lam olile^quam necessarias*
Mri he only lost the Titlnptunrtns ; 1. L 38. and
99, U. de baeretl petit. 1, ^^i. c. derei vimlical.
— TUii lords bemjr straitened, altered dow aright
iheJr Ibrmer intcHoculor, and found the utficers
c€ tW Mint out^ht to have allowance of all
ODpfier stamped by (betu before tlie act of in-
deniity 1679, (for aiter serious coosidcralion
Ihey durst not make loo btdd wUh the loosing^
vi' this act of mdemnity,) but found what-
e?er copper waa coined since the said indem-
liily was the king'a conjiscationis jure^ without
may defalcations ; and ordainetl tlic oBicers of
the Mint to condescend on the auantity
prior to the act of indemnity 3 vhcreby they
designee) to chcit a confession that timy had
exceeded their allowance, which would Ijold
tbeiD in a probation ; as also to prove the va ^
lue of the iK»und or stouof copper ; and would
not allow ibem the current prices it was then
givin^t bnl only what it really stood them ;
and for the expences in coining, alloHetl them
to defalk whatever wagies they were yet resting
to the arlilieers and workmen, but refused to
allow them what they had ahready paid. To
the |vrejud»ce« arising from a supeilctation of
coplter coin marked by me alibi^ we mov add,
r That foreign commodities cannot be bought
with it ; for strangers will not take it. IL 6e^
ingama]) and caretetsKly kept, tlie half of it m
lew years comes to be tost, i,t> that the half of
the turners coined since the king come in, if
Ibey were called in now, are not extant. Ill*
ibe tmrhici or sixjiennj pieces force and tempt
Hite^uy more of fimall commodities than we
wed, anil they who formerly bought a turner's
ivortb of pins, spice, Jtc. are now in a manner
forced to buy a bawbie's worth, the turners
hifing ht com e t ery sea r ct» . A m ongst th c V e -
otliajif, 1 find it is <leaih to apply one penny
of public money to their own private stock or
Hie,
** Then the king'a adTocate inaistfid 00 the
•econd article of the libel anent hi^ refonnding
Uie proUt of the buihon ; and thous^h louder*
dale ajledged. tliat the master of the >jint, by
hum n^oe, gift and bond of catttiou, was liable
fbriltat ; yet i* ^ '^ found th* ' :'
llieMiott«aci of all the f
Hti negligpasce lum 4>[ui^;sion,eqaalU rmu nnu-
cipaUy to the king^ and not only iabsidmri(\
fe5Pr-'T"* *''tu bia rehef, as accoH- — .j-.t*
Ui' and for this there v
^j«Qt 1609« anaiit the l^
I, 9. § 8, D. * de admin, rer. ad civ. (»rrt.* T«thcre
*carator tenetur nomine collegas si prohibere
* eum poterat* Vet I Hnd, LI 11- 12,*ud 13.
D. ad municlpai, make him only liable * ortline
* discussionis prius ser*^ato ;' anil all tautiotiera
for administrators have the privilej^e not to be
couveened in prima instantia^ till the pmicipikl
be iirst discussed. This interioculi>r fiudmg
the general liable for all the malversation?* and
omissiuns of the inferior officers of the Mint,
was grumbled at, fur they had not their com-
missions from him, but from the king; and he
could lie in no worse cnse than a tutor or over*
seer, ^ qui teneriiur tanlum de do|r» laio et Uu
* culpa,* Yet I Hml mandatarii, amonp t%!i«mi
also are contained those who Imve coi
for offices and l rusts, are lialile in hu^^
kvttiima; but tliat must only be undttMooJ
of their own, but not of the culpa Uiwtma iti
these under him, though they be auswerobto
also, ci- i/ua&i delicto^ for iheir faults: And m
this rule, masters are made liable for tilde
teuiinlB and seifrants, and sberirta for their de*
pulies; see Statula Davidis 2. cap. 30. parents
and husbands for their children aud wives ia
some cases. The general is made llalde for
the inferior officers malvcrsatlous, not only be-
cause his knowledge, connivance and command
is presumed, hut Tie should have impe*icd and
discharued lb era to have coined more tljan wa*
in the kfiig*t^ warrants, and two copper jour-
BCySi nnd Bhouk! hare rcvenled and not con-
cealed it and divideil the spoil betwixt thero|
and * per tit, c. de Iklsa moneta, cliara cunstt^r
* puniuntur.' As to the point of rdief amon|^
themselves, if they be all pmven to l*e delitt'
oueuts and in dolo^ and to have malvcrpeil i
their tnist^ ; this ought to cut off all relief,
is elegantly decided in the case of tutors, I, i,
§ U. D. detut. et nit. distrah. and if one
ibem be dead, (as here in Mr. Jsmes P:il:
cooer*s casc, wht> is convccned for his fatki
the wardens malversations,) «ucb actions ' de'
* dolo qutp factum puninnt, non dantur cootra
* heeri^des,* where it was not established, «f^
litis cou tested aguii^st the defunct in his ow^H
lifetime. Vet 1 find capers, though decerne^H
to restore ships or goods unwarrantably sei»|^|
on and taken, have relief among tliemse!ff%^
though all tfccerned in $olidum,
*' Then the lords, after the debate, adrts
the seventh point or article of the libel, abou
thd profit they had uik)ii the exaltatioti
Crying up of the merks in 1680 ; and it
for aU bullion, silver coined or uncoitiedy ]
had lying beside them in the Mint-liouse {
time of that act, there was due to the kha{^
eight pennies they gained on each merk oT
and ordained litem to restore it ; and for wh
I 1 Tin they got in since the said act «
4 they gave the merchant fifty
\iw;;^s and ten pen ' ! '
they brought in
*' : eight |>tHJhrv-< :*in« r vu.n. »<tt,
' accomptiiblfi to the king for no mocn
•>am of ux\las ihe kinj^sl
• 'j«m jTOV«aaiUHiue i;^i.. ;., <^L .; , ^ut- ^am 01 y4utu(,>[t lue kuij^s^
^«si«ri)i M Will M Che toflitcr I snd 1 vocate can prote ihey compounded i^ittith
Bmdifthfrs.for €>fficial Mahtnaiian^
16BQ.
banU, for \cm thnu iIm* sM fi% tt^^lit
fwliinir* atifl rvjUt peinHCM^ anil whfUevef ihey
gol Jowii of it. tin»l it belonjjs to \Ue kinsr.
*' Then ilie kijijj *s advocntc ant] sir Pa! rick
Hmni* iiisiHti'il on ttie er^itih iiitk'te, ani'iit the
mal^i* iiuUiun of; Uip lottl?*, t»f*twiilistan«linp
ftet 519, [mrtMiikent 1507, (which they found
in clesutflinh^ na to the current coin, 'though
foreign «) found, rhai tliV inviting: Jowii nf <1<J-
• liirs, was unuaiTatitahtp u6 in//(<>; utid of du*
catnous, on) y »inre thev were <Tied un, as p&sa>
ing money* in 1080;" and timt the king- mnst
• hate the same jiwHt on them, as he vroiihl
IHto'e had of im parted hnllinn* tiz. the l!?lb
npN; though Luuderdftle nlleii|;j:od it wa& only
] the ;iOth iiofl: And found, that not only the
coin bearing the king*i» impress, hut that no
foreign coin that iiassei as current, ought to bo
melted down ut alL
•' Then al>er <lcbjite on the articles anent the
remedies of Hnes tind wei^lit, the lonk found a
^imin aboTe and hchiiv the Mandiird of weig-ht,
" and two |2^ruiii!>i above and btlow eleven penny
' fioe^ as tiie standard of the inlrin<!ic value and
fineness, were albmed only as a latitude "^to
' work on, where cAsually they fell ab'ivc or
under, because it would'lie «n'i(i>snjH'rahle la-
i>our to be precise ; hut found thtni culjwible,
the ktns;*« advocate provinw" they wroucht on
li»e remedies In^ncath standard^ as a coniitant
iidvanta|;e, so that wheti they came to trone,
or weti^i a mcrk piece, if ihcy found it exact
weight, they would part, raie, ur scrape a
^ratn off it, till it came to the remcad ; which
frandulent prachte Ix'ui^ known* the lords
found them liablu fur restitution of these g^-aios ;
and finding the article of John Fjilconer*^ Invnd
to Alexander .^laitkind, was made up of tlur
renieads, tii*?y re«oheil to cmdkcate the said
tnm to the king.
" 'llie krng*s advocate thcreattn' insisted
i AgniuHt Mi\ James Falconer* that he, ns suc-
' cesser * titulo lucrati^o ^MistconfrsKium dcbi.
* mm*' must be liahle for hi» father^ part;
irbich he did urge not only ibr nil deeds done
by his father bm warden, before he gave him a
^ disposition to bin estate, but even for all deeds
lifter, because he being introHtctl by th^i? king j
with his money, he became debtor from his I
firitt tiitry to hm office, and uny di^sposition he i
n^en^ardHtnirkeMorhi^ estate to his eldest son» i
repute ffauilnlfot, and otigbt not to
the kinjj's tacit hvpotherk,t!ll he be I
jNjKj r^i Ins own» which is ogrctuide to la^v, Hnil I
the Fi»ik*« privrlegw; ride Antoii. Peregrin, hh.
G, dejurc Fintn, c, fl. Yet this will exceedingly
decerned already, than all the genefnl atid the- 1
other officers of the Mint, thctr estates are Me \
to pay, if this rigor be not soniewhnt rcmittedf ^
by his mnjesly ; so that they need not insi-^t ]
for atinualrciits, unte!^!% it 1k' fi»r example, anti
to strike terror in other.^ j atui it is impossible i
that any can miinuge the I^Iint office, if they i
he 80 strictly searched. But it will be theeari
of Stafford V case, who wa« found guilty, yet
with one breatli it was declared it should not
be drawn into a preparative. However, Id j
this ca^^e of Halton's stand us a great instancf*
and beacon of the i^iix and inconstancy of all
sublunary greatness.
" The Lords, upon the Cnd of FebrnarVp
168:j, found my lord Muitland, then newly
come home fmra London, liable as ctmjnnct-
general with his father, J hough be tiever loed*
died ; because he ought to have supervised^
and his being adjoined when he was so young
OS not to be able to officiate, was allenarly hitf
fatluVi fiiult. In this case, Halion^s tni>
much debute and opposition, made tlie decreet
tiie stronger ; for, they thought to have hooked
htm in the debate, whether sir John Falconer ,
was Ixiund to relieve him, and to have freed sir
Jcdjn ; but Ifalton smelhngit, declared he hud no
process of relief against him as yet, and would
not insisit no;v. It may he doubtetl, if the chancel-
lor or other lords who were tm t he first com mn?-
sion, and had already given their opinion there
againiit iThn, tnight not in law, have been de-
clined as prejudicjite and pre-engaged, 8omG
of the votes aqiiiniit Halion, were carried only
by the exlniordmary l/jrds, Quiiritur^ ff
such inlerlocutors umy not he suspected as not
nitoginher consonant to Jaw, the extraordinary
Lurrls not hcing bred lawyers? Inthis process,
the Lrti'ds followed the ancient sutnmur way of
advising prrw^esses^ by debating and discuiwtng .
the rcleviuicv of one point, befon* they hcar<l
another, aufl removing the pnrtics (jrescntly,
wit bout wrrtten inf5jrmations, and giving theni
a distinct interlocutor on eac h of thettr.
*' 1 be Act of Lit iseon( est at ion jn this Mrnf-
cause being extracted, the I^ird^, on the yoth
of* February, I68^i, appointeil Cnstlcbill, Boyn
and Onimcairn, to receive the probalion, and
to nernsM» and to prepare it to the whole Lords,
anfl therein to t>ilce the lulp of heutenant*
genenil Drummoi d, tionbm of Gordon<«tt n^
atid rtadie Bnifd. This was thought oUd, to
adjoin asuscssurs to the Lord*;t but the matter
♦ Should Ik* Stratlonl. Slc vol. 3. p. 1519.
t Mr. Hume (Contmentaries on th<f De*
scription and Punishment of* Crimes, vol. 1, p.
man- the commiMce with mich puhli»* olTicers, | 4L) siiys: '^The JuNtice Court bi«run to iv
utid iH on the matter an interdicting of them
•* Then h« in»i*ted for the aimualrcnts of
^^tr sum* arising irinn their tlehnfjuency, utid
' El in not pavinjr what they wer»-' owing, and
efore uunuulrcnt was due here, nmnine
nni €i interrsyc^ tbougli there were ocUhcr
^jjH» nor paction i** infer annualreut ; and this
' K» anotbfvf pri% il(*ge of the tUk ; fide Pere*
, ibicL But there are more piuicipaJ stuns
roLu XI.
cover fffim that ntate of depn*Hsioii into which
it had ftdlcn, and to aspire to the like indepet!*
dence in its prot»er d£*partniei»t, %thicl! the
other stipremc jndjcttturcfi matntnined in theirs »
'['he rcgnhitions of lti72, without <xprts\Iy
furbi4hhng the np(>oiiitment oi a&sessurs, had
in their pi^amble uUudedtolhc inconveujencies
of that wrt of interfercncpr The eotntniKsion
too» of i071, tklWr iuvi'iltug the new cvatt
K
179J
34 CHARLES IL Proceedings agaiKst the Earl of Lauderdale [180
was sonicuhat out of the road. This tedious
f«ruces8 was at last advised by ihe Lords ; and
u}>uii March 20, 1(383, they found it |irovcu
by John Falconer, warden, bis deposition, that
tfifre was 17,000 stone weight of copper coin,
thoui^h there was only warrant for 10,000
stone, ()et it was objected, that John iinmeih-
atcly retracted and amended his deposition,
but they would not write it ; and that he was
only icalis sin^ularis, and that it was not taken
in judicio ordinario^ but in snmmario on the
kiu{4''s couimission ; but it was alled^e<l, that
he bein;^ a party « knew best wliatwas coined ;)
and found, that llaltcui had UiUen (300/. ster-
lingf, from sir Ji»lin FaJconer, to ^et sir Johii^s
accompt of bullion past and cleared ; which
tliey decerned him to pay back to the king* as
caductun^ being' a bribe, unless he condescend
upon another ca«ise of bis ^ivin|^ him it : And
Ibuud the sum they were all liable in to the
kiuj^ conjunctly, was 72,000/. sterHug, for
which they decerned them all in solidum.**
Ma^ 10, 1C83.
" This day there is a letter from his majesty
read at privy council and excheouer, bearing'
the Bnul sentence and determination he &^ve
forth against the oiiicers of the mint, viz. That
whereas his advocate having obtained a decreet
against them before the lords of session for
72,000/. sterling, and he mindintr the eminent
services he hath rccei\ed from his late general
of the mint, now earl of Lauderdale, theraforc
he miti^^ates the sentence against him, and
iinds him only liable in 20,000/. sterling for his
part of it; whereof 16,000/. sterling the king
gifts to his chuncellor, and ^,000/. i»terling to
Graham of Claverliouse ; with this declaration,
that if Lamkrdale and his 8(»n the loni justice-
clerk shall dispone the lands and lordship of
wit'j all iho powir;; and privileges which had
Uloii<;i.d to the jusiic-c-gotKial, justice cleik,
*ihI jubilee- deputes of r!ii, liiiu proi'^eded to
declare, * qiiud anted seta curia jubticrlariu',
* proul per prti'sentes t-st stubiiita, est el erit
• nostra siipren:a curia jiisticii:riu', et ordina-
* rimiM liuiinalc jtidiratorium :* aiidcs;i<.ci:illy
it had pro; Idinl, ^ (|uod nulla causa ad illud
• sptctiii.s ahstralKtur ali eodom. nei: adduca-
' tiiiod ctiodvjs a!iud ordirs.rium jiidicaturium
Miit :>.<!\i.culiunis prcco^niiionis, scu super'
Mpuivis alio prtetexta <jm:cu:j(]ue.' On the
pait (»f tl.u privy council, tiicrefoic, sume of
ll.r abovf-niciitioiiui irn'gului- iiiK /jn -.ition. ,
■ct-lt.-iN tiic naminc of ass;':>'«i'r:u, and il.e re\i-
■a! < 1 ;ii(; procceilings of c«..iirt, wtTf imuK^di-
atilv »ii»-c()!!liiiu(.il ; ui.d iiio>.t oi" the other
hbw:.t. „■' I 'i III." p'ivy co;:(:cil, boucvcr, named
o.-,.'.i.S;«iis ■^» 'it viiili till' ju«!g'v' ;i<ii:iiral, in the
i!(*tr..l tr; .1 '..t (Jnen and olhri*, for piracy and
inunlti, in 17l)oj *Mhon;rh not at onue laid
asiilo, \unv [.ratii.scd howi'ver, afii r this tiine,
villi r.iore k-i i vo, and in a ma.nncr k-ss olfcn-
■ivc to th<' foiirt at least, than IcrmtTly ; and
af\er the UwvokiUou they vamc to b« eotircly
dMUbVd."
Dundee and Dudhope (of which the king had
gifted him the ultimus hitrety ward, marriaffi
and recognition 11 years ago) in ftivoan of tha
chancellor, then he shall be free of the foresaid
sum of 20,000/. sterling, providing he give real
warrandice out of other lands, and ogaiost all
the late earl of Dundee's creditors, or their
consents ; and that it contain all w ithin two
miles of Dundee ; so that Glastory and Inner-
kiething iall not under it ; and that Claverhouse
shall have power to redeem the bouse, yards
and parks uf Dudhope with the constabulai^ of
Dundee and all its emoluments from the chan-
cellor at 20 years purchase; (which somt
valued woith 30 years, because of the g^reat d^
pendance and superiority.) A!i to sir John
Falconer late master, the king fined him in 4
years antl a half's full rent of his whole estate
iiolh personal and i*eal, besides the bullion in his
hand. — He was made so easy, because they
had privately forced him to give his brother
David Falconer a l)ond of 9,000 merks. — ^And
decerneil James Falconer, the late warden's
squy and Alexander Alaitland the late coonter-
warden, in 6 years rents of their whole iiir-
tunes; tliough there was no passive titles
proven against the iirst, and not so much as a
decreet against the second. This way was
taken with thir two, because Mr. James's father
having hangeii hiinself, as was ro|K>rted. his
son refused to pay any composition for his
eschcat,shewinga right* he had long prior te
life rent and all, df-nudiug his father, and much
debt Qnon it : and it was to furce the second te
demit his place of macery. It was said, the
fines of thir threb la^it were given to the two
Scots secretaries. — t)n roadirg of this letter, I
found it likewise connnanded the earl of Lan-
der4lalc to discharge any relief he clainieil or
had against sir John Falconer as master, or the
And in another place (1 Comment, cap. 1,
pp. ^$, 4.) after noticing tliat in Scotland, it was
part of the king's prerogative formerly to
judge in person if lie pleased, he nunitioDS,
"That by statute 1(381, cap. ia,the 3rd parlia-
ment of Charles 2nd, it was attempted tu re-
vive this principle, and carry it into practice.''
The statute was as tbllows, * Act asserting his
majesty's pivrogative ia i»oint of jurisdiction.
Spptend)cr loth, IGJjI. The estaies of parlia-
mciit (onsiduring that all govtruiTient and ju-
risdiition v^itliin this his niijesnes ancient
kiii!;(li)ui ofS^'otland, dovs originally reside iu
Ills sacri-d mHii.'Liy, his Lawful hei.s and snc*
Cc-bsors: And although liis majesty, and bis
rryal pndeccssors, have bestowed offices and
jurisdictions, upon sevemi of his well desert-
ing snl>iv.cLs, ytt tliese are not privative of hia
jurisdiotiun, t.'icy dotherribrc, in a dutiful,»DMl
humble recogni/ance of his majesty's royal
right and prerotrntive as to this p<)int, declare.
that notwithstanding of these jurisdictions and
oiiiccs, his sacred majesty may by himsell^
or any commissionated by him, take cogni*
sance anddecisioD, of aoj^ cases or cauaetlM
pie -
181]
m^i oikeripfor Ofieial Mtdwersationi.
A.D. 168?.
[182
other iDierior ofBcera of the mint. This was
a miserable reverse of fbrtyne upon my lord
Lauderdale, ibr all his services, and a flpreat do-
cument to all statesmen of the lubncity and
instability of their offices: and it was no won-
der to see the lords unwarrantable and illegal
decreet restricted, they having decided supra
ftome very odd and irregular points in it In
August 1683, the cl^incellor and Lauderdale
agree J and he accepts of the half, viz. 8,000/.
sterling; or 10,000/. Scots, and '20,000/. Scots
farther when they shall be able, and whereon
they gave him sir William Sharp, Cockbum,
9c6, cautioners ; and having gotten an assigna-
tion to the chancellor's right, they offered to
Claverhouse (who resented the chancellor's
transactini^ for himself, and deserting him, and
•ntering mto friendship with Halton,) the
house, yards and old park of Dudhope, with
the constabulary of Dundee for 90 years pur-
chase, as he was to have paid to the chancellor,
in whose place they were come. And they
being debtors alternative in 4,00Q/. sterling, or
that offer, they elected this last ; which he de-
clined to accept."
July 4, 1683.
<* An act is made anent the mint, closing it
up, till the parliament sit to give it new regula-
tions ; and ordaitiing the Spanish Ryals of 14
drop weight to pass at 66 pence. Some mer-
chants think this way of crying up and serving
ourselves with foreig^i coin, is an easier way of
furnishing the country ; which custom Poland
and some other places use ; but it is not so
creditable."
November 7, 1603.
** The earl of Lauderdale upon a bill to the
lords gets a stop to the charge of horning given
him by Claverhouse, the high-treasurer, and
Hew Wallace cash-keeper on the decreet aucnt
the mint, in regard he offered obedience to the
king's tinal determination in May last, and so
ought not to be charged for the whole 72,000/.
sterling contained in the lords of s^sions
decreet.
December 13, 1683.
«< There is a letter from the king to the chan-
cellor, stopping the procedure against the earl
of Lauderdale on the decreet anent the mint till
the 15th of January next; and recommending
to Claverhouse and him to agree about Dudhop
and Dundee, and each of them to nominate two
privy counsellors to endeavour an accommo-
dation between them.
January 1, 1684.
** The juncto of the council met on Argyle's
letters, and have got Gray of Critic, and Mr.
Geoiige Campbell to decypher them. , They
first touched the earl of BaWarhoute, as he
who was touched with the hieroglyphic of D.
and «s above the head of the D. and of H. i^
— When the lady Argyle found her own son
tbas touched, she then said, that she now re-
membered that D. ^ was only a relative par-
ticle in the key betw^n her husband and her,
and so roeaned the L. M. [Lord Maitland] im-
mediately mentioned before; which inferred
against him that he was corresponding with
and receiving lettoi-s^ from Argyle, a traitor.
The juncto upon this sent fur the earl of Lau-
derdale, and sent with him captain Graham,
and sir William Paterson their clerk, to seal up
all my lord Maitland, his soii, (ihen at London)
his papers, trunks and cabinets, till they should
sight them.
January 24, 1634.
*< Colonel Graham of Claverhouf^e insisting
against the carl of Ijauderdale, upon the king's
letter, to dispone to him the house yards and
parks of Dudhope, with the constabulary t>f
Dundee, he paying 20 years purchase for it to
the chancellor, to which 20 years purchase
I^auderdale on his transaction with tne chan-
cellor was assigned. It was alledged, Esto this
were the king's 'cause, yet not being called
within 48 hours after the returning of the pro-
cess, he behoved to have 15 davs advertise-
ment, conform to the 16th act or par. 1679,
ratifyinfif the regulations; which he had not
got. The lords repelled this, in regard the
kingf's letter mentioned supra 13th December
1683, recommending to them to agree' was a
medium impedimentum ; and there %vas but 48
hours between the up-giving of the tryst and
the calling, which satisfies the act of parlia-
ment. Then alledged, the sum of 4,000/.
sterling of the Mint decreet being gifted to
Claverhouse, the king was denuded, and it
came to be in the case of a common donator,
who had not the priirilege of a sumraar railings
but behoved to abide the course of the roll.
The lords find the letter made it still as if it
were in the case of one of the king's own
causes. AAer repelling thir dilators, then
Claverhouse insisted that lord Lauderdale
might either purge all the incumbrances that
aftected the house and yards, or else give him
real warrandice out of' his other estate • the
lords delayed to answer to this; seeing the
offer of absolute warrandice may satisfy ; for
by an inhibition served upon it, it may be made
more effectual than real warrandice, which is
restricted to a particular subject out of which it
is given ; whereas an inhibition stops the dis-
posing upon any lands within these shiree
where it is served and execute.
February 28,
" Claverhouse's cause ajjrainst the earl of
Lauderdale, was called ; nnd th(» I^rds found
they might advise it summarily without inrol-
ling, it being a part of the king's cause ; and
that tHey cannot obhge sir John Maitland to
consent to his father's disposition to Claver-
house; but ordain the clerk to mark on the
process that he was cited ; and find by tbe
probation that the twenty years purcha-e of
Dudhope, «Scc. comes to 6,000/. Scots-; and on
his paying thereof, ordain the dispoiitioo to ll»
183J
34 CH ARLE8 II. Procuiingn agaimt the Earl of Lauderdale [ 184
delivered up to bim before tlie SOlb of March ;
betwixt and which time Lauderdale may obtaia
uiv loixl Maitland and bis lady's consent;
otlierwi!>e ordain the decreet to be extracted.
March 29.
*' Tlic king's remission to the earl of Lauder-
dale and his son came down ; but a letter
clogged it with two qualities ; Imo, That he
should perfect his disposition to Claverhouse,
2do, That he should discbary^e his 'recourse of
relief afpiinst sir John Talconer, and the other
officers of the Mint ; and bore |>ercniptonly that
thir should be performed within ei^it days af\er
Bi\g\it ; and if they were delayed, (which his
majesty -would riot believe,) then the remission
not to be past the seals.*'
Much collateral liti^^^tioii issued from this
prosecution, as appears from passages iu 1
rountainbull, p. 337.353. 3(30. 394. 409.
With respect to the sealing up of (he papers
on January 1st 1684, it may from lord Foun-
tainhnlPs roprcsentation seem that Wodrow has
not expressLd himself with his ordinary exact-
ness. His words are *• 1 find an orJcr Irom
the Secret Committee to captain Patrick Gra-
ham and sir AVillinin Patcrson to go and seal
all the lord Maitlaud's papers in the late Lau-
derdale's lodgings. It seems a little before
this that once great man the duke of Lauder-
dale died ; and notwithstanding his bright
parts and long favour with his master at length
lie fell into the utmost neglect and contempt :
and now it seems the present manaeers resolve
to canvass his papers." History of the Suffer-
ings of the Church of Scotland, vol. 2, p. 451.
DECREIT His MRJestics Advocat against E.
Lauderdale and officers of the IMint. D. D.
Att Edinburgh the 20th day of March Im.
6 c. and eightie thrie vi'ires anent the sumonds
and ac'tiono raised ancf perse wed liefor the lonls
of counsf>ll and sessione at tht^ instance of sir
George M*Kenzie of Hosihau«:h his nia*ties
advocat for his highnes interest iu the maitter
hundr written ngiiinst (.'haries earle of Lau-
derdaile and Richard lord Maitland his son
laite gencrall of hus nm'tios Mint sir John
Falconer laite master thereof AltxanUer Mail-
land one of the \\aiidens thereof Mr John Fal-
coner sou and aire to the dccii^t John Fal-
coner the other wairden his fiUt'ier at the least
behaveincT himself as aire to hiui he intromis-
sione with his airship goods at least ex'er to
him at least successor to him in his lands and
hen t idges *■ titulo lucrativopost contractum de-
that his tna'tie since his happy rraturatioiie
was pleased to allow six thousand stone- of
copper to be coynied at two several! limited
tymes Yet notwithstanding the said Chariet
earle of Laudenlale and Richard lortl Maitland
laite generall of the Mint sir John Falconer
laite master John Falconer and Alexander
Maitland lait wairdens and Archbald Falconer
laite counter wanlen di(( most wnjustly and
wuwarrantably under the pretence and sbaddow
of the said six thousand ston alloived to b6
coyned at two several I tymes did coyne above
foiittie thousand ston of copper which wasther-
tie four ston more then was allowed wfaerciif
twentie thousand stone dureing the first copper
iumay and fourtie tliousand stone dnreingf the
last copper jurnay to the great losse and prgn-
dice of this ancient kingdome And they bar-
ing uswally coynietl threttie six shillintfs oat
of every pound of (K)pper of tlie said thretlie
four thousand stain that was coynied more nor
was allowed by his ma'ties warrands which did
amount to the soume of nvn hundreth aiventy
nyn thousand and two fmndred pounds ftr
which the said Charles earle of Lauderdale and
Richard lord xMaitland as cheiff officers of the
Mint who hade power to supervise and oontroll
tlie other officers and punish them if tbey
coniitted any fault who hade special trust from*
his ma'tie and als the oy' officers of the Mint
' singuli in solidum' ought to be lyable to his
maHie with the a'rent of the severall soumes
coyened at the severall juruayes more then was
allowed by Uic warrands from the tyme of the
expyring of the rex've jurneyes.
And alse all)eit his ma'tie and ro^all pre-
decessors have alwayes hade a speciall caird
to provyd buliyone for the incressine and
roantinance <»f the stock of coynadge of
this kingdome and that it is expresly pro-
vydit by the act of parliament that the goods
and marchadise imported by the marcbands
should pay soe many unce of bullione or
oy*wayes pay twelve shilling Scots for ertrj
unce therof the generall and masters of the
Mint by the inarchants the soume of threlia
thousand siven hundreth and twentie poumb'
yearly as the twelve shilling for every ounce
of bullion with which they should havebou^
two hundred stons of bullione yearly which
from Caudlsinis Im. vi c. and siveutie which
is the daite of the act of parliament by wbidi .
marchants ware allowed to pay in to the Mint
twelve shillings iu place of every ounce to
Lambas lin. 6 c. eightie two being iwelva
yeares and aiie halfe ainounfs to the soume of
three hundreth and eightie four tliousud
pounds And yet notwithstanding the laile ge-
neral's and masters have rcceaved the soume
of three hundreth eightie four thousand pouadi
dureing the forsM tueUe yeares and ane balfil
* bitum' at the least unv^rsall intromitter with > from the marchants as the twelve shilling
his go<Mls and gear And .Aindilmld Falconer laite place of every ounce of bullion and sboaU
counter wainien Uiakaud mentione that wher
albeit by tie lawes of all nationes and acts of
Eu-liamcnt of this kiugdonie the cuneying of
ar> »>'*»v without wairand is discharged and
have imployed the samin for buying of
y't they might have coynied the
they have inverted the said twelve sliillingmm^
the use ffor which it was destiuat and Sd aol
and others, fcr Official Maha'mihm,
A. D. 16S2.
[186
imploy it for buying of buUione but apply etl it
to ihcr own |mvat use Ami thedbrtliey ougbt
to be lyahlc lo his uiaUie for the smf twelve
stulling' payed in liy the mareUants in place of
biillione extending to tbe saiii s«unne *if iliree
likindrellk ti;;li»ic four thousand pikundslhe yeirs
above mentkiuBl ivitli tlic a'n ni iif tht) said
threrie thousand si feu hiindrcth and tweniie
|K>un4 they received yearly from the first
tertiie the sumcn l»€4 ame due to hit* out mn^tie.
As also bis nia'iie of his prinely care tor \he
j^oo*l uf liiei ^kithjeois increbiiiag of luouey wilhiii
this kin^rdom and for advaneeiuif his rev en e wen
arrysiug by the Mint <lid allow the generalls
anil master and officers of Mint ihe yearly |
a*rent of the son me of three ihonsiuiil three '
buodrcth thretie three peund six shdling- eight ^
pennies yearly as a stoek tor hnyioj^ in of
huJlione tnMiie tynie to tynie which mtj^lil have
bought tweutie sigas of Uullione at every tyme
which mig:ht have been coynmJ and exct»ao»je<t
ia ifuUl and tnony twenlie tymes in a yejire tlie
jirofeit therof arrysintr tn his ina'tie beinsf i*iy:ht
tliousaud anil six liutidrL'th pounds in the year
which for twentie ane y^ars by |»ast since his
tna'ties happy rt^uratiotie woiild haveumouot-
ed to the simrae of ane hundreth and eijjbtie
thousand aud six hiUMlred puunds notwith-
standing: the i^eueralls uvaster and oy* otHcers
of the 31int hes not im ployed the'^stoek of
tnooey soe that the runtrey hes been exiremly
|»rejiidged and bis ma* lie ilefrauded of the be-
ue^te that would have arisen iherby if the slock
of ftiony hade bein im ployed and the bulyone
imported coynied anil exehani^ed so many
lymes m tlje year as it 004* hi to tiave Ixren ac-
cording to his mantles appointment and y^r for
the geneiMb ra aster and (nher officers of the
JViint ought lo be lyable to bis nm'tie for the
*»amc wilb the a'rent of the said yearly profeite
from the lir«t terme that the same becam due
%%.* hin majestie.
As al:io albeit by severall lawes and acts of
parhameot the mony of this kinjjdome k an-
|»ointed to beof equall weiifhtand fmnes with the
lotniy of England And y*t bits ma^tie baveinpf
litter the example of his ruyall preilecessors tor
Uie advancenifcnt of the mony tred aud com-
merce between the tw» kinjfdomes* that the mo-
tley eoymed in iMJih shfiuld he i4* a like weij^ht
ami tinnesand tor ihateffect in iheyear Im. wlc.
Btxtie two havein^j^ cause*! frame" ane indented
silver Htandert plate of sterlinjBf liniies and ue*
eiired bv hin ma 'lies seal Is a part wberof was
pent hither to 8eotIand as the rule wberby to
make cssyses of the fineness of silver in all
tyme hereafter yet noiwiibstanding' the mony
of this Linifdome since that tyme bes l>cen minted
farr below the fmnes ot ihe standart plat and al-
lieit the ofhcers of the mint ware only allow-
eil to work upon the remedies in caice ca-
fiualttie that the sime all over wndei and noe
oy'wayes yii notw ithstandioLC they did not
work upon but even below the remedies soe
that ihe Scots c^yne bein|j two grains less then
• ^^ iQ the Original.
the indented staudart pbte they wswaUIe work*
ing upon the remeches of fitines and ther Mng
two bundretl «tons of bulbone y^t was eoyniea
yearly the profeit arry&ixij^ to the otiicers of
ilie Slidt by the diflTerance of the coyn from
ihe tiitnes ot the indetiled sstimdart plate with
the benetita vjf the remedicti being twelve sbtl^J
ling upon t lie pound ol' sdver wilt extend to
the sotiriie id ane tbonsnnd nyn hnndreth and
twenUe pound.>4 yearly wliieh from Caudtgmis
Im, vi e. sivcoty yeai-s to Lanibai» im. vi c.
ei^htie iwa year fong twelve years and ane
lialfe W'ilJ extend lo the fH>tmie of twentie four
tliousaod pound for which ihe generalls master
Hinl other otHcers of the Mint ought to Ix
I y able to hi'^ ma 'tie sin<^uti in ioiidum with tlu
aVent yearlj after the first termes thai the soma
became due.
As also albeit it be contrary to the
tnre of all mints thai any silver thats coyne
should pass tbe kings yrons without ane esse}
therefd iirsi taken yU it may be found of iinnei
deliu^nible yet noiwitbstaniling the half of tha
coyn or this kiugdome wilder the pretence of
silver called elush heads sucips and scropes hetf
beiii melted aud printed without any essey
thej'oi taken soe that ther being two hundred
sttms of hullione coyned yearly aud ane half
y'rof coynied wiihoui aneeasey will extend to
the wiume of sivenlie six thouj^aiid and eight
hundreth pounds yearly wlitch from Caiidlsmis
lin. vi c. sivenlie to l^tnUas Im. vi c. eij^btie
two years being twelve years and ane halfe
extends to tbesoume of ane hundred and sixtie
thousand pi>und» which beitig coynied without
ane essey as said m eontiscat to his tna'ties use
and the ofKcers cd the Mint are lyable to his
Tiia*tie lor the sanune sin^w/i ia niUdum with
th« u^renl thei of yearly after the same becam
due to hisma'tie.
And in lyke nianer albeit by the eomou law
and laws and acts of parliament of this king*
doui It is expresly prnvydit that noe man
should have ditferent weights and that the
wsers of false weights should he severly pu-
nished and for the security of tliii m eight of
mony coynied in this kingdom his niaUie havo
ing al waves a pyil of weights in Ihe cunzic
bouse with which the olhcei*s of the Mini
ought to have receaved in the bullion with tlie
dean of Guilds weights of Edm burgh which m
lour of th« bundreth heavier then the kings
weightis ROC that (her being ane tbouiiiund and
(i\e hundred stun of bullione receaved by the
general! and master of the ftlintfrom the mar-
chands to be coynied for his luaHieii wse these
twentie ane yeara by past since bis maHies
happy resturatione will extend to the aoume of
fourlie thousanil pounds for which thtv are
lyable to Ins ma'ttc &inguU in ioHdum with the
a 'rent yearly frae the tyme the sameu becam
due.
And sickly ke the coyne of this kingdoms
being cryed iip the probi of the exaltatione be-
ing three sbimng two pennies upon the unce
wbicb is fourtie pound ti^n sbilbng upon the
stone will be upon four buudretb stoos which is
I
I
187]
94 CHARLES IL Proceedingi Mgaimithe E&rl of Ltuierdale
eoynied for a year and ane half since the mony
was cired up will amount to the soume of six-
teen thousand and two hundred pounds and
the profit of two huudreth stons lyin^ in the
Mint the tyme of the exaltatione by the same
rule will amount to the soume of eight thousand
pounds for which they are lyable to his ma'tie
with the a'rent yearly after the first terme the
camin bpcam due As also the yearly interest
and profeit any sing by the bullione payed in
to the general Is and Mint by the marchanu and
not eoynied within due tyme seeiig it appears
by the books that ther was a'wayes three huu-
dreth stone of bullion in ther bands yearly
and not eoynied for the space of sixteen years
ever since the year Im. vie. sixtie six that
they began to coyne being twentie thousand
marks yearly will amount to the soume of two
hundred and therteen thousand three hundrcth
thertie three pound six shilling eight pennies
lor which they are Ivablc ' singiili in solidum '
to his ma'tie with the a'rcnt yearly at\er the
first terme the saroen becum due.
As also albeit by many laws and acts of parlia-
ment of this kingdonie It is declaired that in re-
spect the silver and gold put in a fire to be made
bullione to other new mony is diminished
wested and distroyed in the translationc by the
fire and procures great skeaih and hurt of the
king and his leidges Therfor it is statued that
nethfr silver nor gold that bears forme and
print of coynie be any waves meltetl or put in
the fire by the kings *coyniers without speciall
licence of the king but all gold and silver that
is coynietl and lies print to be (»bserved and
bolden huill amongst the kings leidges As he
ordained it to have course and the contraveeners
of the law to be severly punished yet notwith-
standing the genenitl master und uiher officers
of the Mint hath melted doun the number of
ane hundred and iiitie thousand leg and rex
dollers twentie thousand ducatdouns and other
moni-'y by which a great part of the current
mony ui the kiug<loine hes been wested and
distroycd to the great ruiue of tred and impo-
▼erishiiig of the kingdome which ane hundred
and fiftie thousand leg and rex dollars and
twentie thoiu«and dovcatdouns and other mony
that lies hein meUed douu these sixteen years
bypiuit will amount to the soume of fyve hun-
dred and i'y\c thousand pound for which the
ofiieers of the mint ought to be lyable to his
ma^ie ' singuli in solidum' As also the said
Charles carle of Lauderdale did receave twise
payment of three years sallarie as generall of
the Mint being four thousand and nyn hun-
drcth pounds viz. one out of the excyse of Edin-
burgh by a precept from his m*atie and ther-
efter did most wnjustly take payment from sir
John Falconer laite master upon his maHies ac-
compt of the lykc soume for the said three
years sallarie and therfor aught to make pay-
ment to his ma'tie of the forsaid soume of four
thousand and nvn hundreth pounds with the
%*rent from the first terme after the said double
piymeDt.
As also albeit Um common law and acts
[ISS
of parliament of this ancient kingdom It is
statute tiiat if any iudge or minister of the
law take buds or bry bs they shall lose ther ho-
nour fame and dig^itie and be oy'wayes pu-
nished in ther persones fame and goods yet
notwithstanding the said earle of LAodercfale
ane of his ma'ties laite generails of the Mint or
thesaurer deput apd ane of the com miss' rs of
the thesanrie and exchequer who by his offices
is obleidged to comptroll the master of the
Mint his accompts hehaveing a speciall trust
and sallarie from his ma'tie for that effect yet
did take from the master the soume of six hun-
dreth pound sterling as a wnder brybe to
procure allowance and payment from the ex-
chequer of his most wnjust and exorbitant ac-
compts relaiting to the Mint and coyne pfre-
ceeding the year Im. vi c. siventiefour staiting
his ma'tic debitor to him in fonrtie tbousana
pound Scots albeit his ma'tie was not due to
iiim a sixpence but one the contrar the roaster
and other officers ware debitors to his ma'tis
preceeding that tyme in great soumes of mony
upon the grounds above mentiond As also bj
the common law and laws of all nationea tns
illicitintrnnd extorting of lands and soumes of
mony especially by a superior officer from
these in office wnder him is manifest and gross
oppresione and severly punishable Yet not-
withstanding the generall of the Mint did rex
and trulde John Falconer the laite wairden to
call him befor the privy counsill wnles he
would grant u band to Alexander Maitland
counter uairden for the soume of twelve thoo-
sand marks upon the accompt of third of the
reme<lies that ware allcadged to be due to him
since his entrie to his office which remedies
did truly belong to his ma'tie Yet notwith-*
standing the uairdin was necessitat to grant
band for eliven thousand marks and grant ane
dischar&re of a thousand marks which was dus
to him for his iies And albeit the band was
taken in Alexander Mait lands nameyetitappeirs
to have bcin to the generails behott they h«iire-
ing cau(«c<l wse dilligence upon the )>and and
put the wairden in prysone whill he was neoes-
sitat to compone and transact the same with
the generails for the soume of siven thousand
marks which was imployed and payed for ther
wse and behoove And therfor the said Charles
earle of Lauderdale Uicbard lord Maitland sir
John Falconer Archbald Falconer Alexander
Maitland and Mr. James Falconer as air to the
sM deeesst John Falconer his father laite wair-
den at least liehaveing himselte as aire to him
by intromission M'ith his airship gpoils at least
ex*er to him at least sueces^or to him in bis
lands and hcritadges ' titulo lucrative post COD-
* tractum debit um' at the least wniversall in-
ti-omitter with his goods and geir aught and
should not only be decerned be decreit of tli«
saids lords of counsel I and sessione * sinffoli in
< solidum' to make payment to the high the-
saurer thesaurer deput and Hugh Wallace his
ma'ties cash keepere in his ma'ties name and
for his wse of the rex'ive soumes of monw
rex'ivie above written due by them to lui
189]
htrt^fw Offieial MahtnaHcni,
A.D, l68t.
lor
i
Hi»'ti(^ lur tlie caiutGS rex^irie aboTe in«Btionecl
mill of ihe a*reul9 therof of all byj^ines since
tiic rex^ive tcrnics fthnve h%*\X duua tb&t the
taitic bectmie flue to Ins ma' tie as afors'd and
ynirly and temily in lyme romeing dureiriff
xiw not payment tlu'rol' Hut also they haveing
cuifiittiHl siu»ti itiai)iiV'!>t j»TiJHs ucts !i«vl uial^r-r*
^ ' " to the Mint and iher
J Mj^lit to be remitleNl to the
iiti,,, .,, ^., ,. j^ »...Mn>^il or lonJ?« of iusticiarie to
be punished' aocordiiij,' to law in Ther pernones
nnil *:oods to the terror of otbei-8 to cotnitt and
i\iHf the lyLe In tymecomringf As is alleadped
aud aiirnt ihc chnL'^f ^/wrn to tiie said Charlts
earleof Lau(lei> «| lord I^Iaitland hts
•on gruemH oi i «if John Falconer
Alexander Maitbnd 9k\u\ 3Ir. James Falconer
eon h\\\ iiirt' to the toiid wnqMI John Falconer
hi^ Ifatbcr at least bcbai^ein^liimselle ai aire to
liirii or oySvayea reprcieuting him upon aneor
oy' of too nas*ive titles above sett down and
Archbatd Falconer defenders to have eoropeired
befor the $aids IoiyIb at ane ceiiain day now
bygnine to have heard and seen dccreit and
sentence given and pronunced a^t them
in mainer wnder written and tberin mentioned
AS in the priutt sunionds raised in the «aid
majtler at more Icnth ts contained The s'd sir
George Mckenzie \\i^ ma'tiej^ advocat compeir-
and pt^rsoually with sir Patrick Home ndvocut
lor his nineties interetft and the miid Charlef*
rle of Lauderdale and the bM Richard lord
aitland gcnevulls of the mint X\wo of the s'ds
fenders abf»>4-nanied compeirand be sir
eorge l*f>ckhart sir John Dairy niple sir John
IjHuder Mr. Walter Prinsjie and Mr. Thomas
Skeen ufhocat^i ther proVs who produced in
presence of the saids lord«i ane g-il^ and cnmis-
sione g^ranteil by hisi ma^ie wnder hts httrhnes
freal Heah to and in Havuurs of the sM Charles
iaitland of Hatton (now en rle of Lauderdale)
daitit the li>i.Hi. a^x iS ^^^'^^mYyet \m, \lc.
•ixtie year - and ordaJniug-
the Maid Ch ' :>!f thedayea
•f hi«i [ift>^Tue ^enerijll or Mint and
kffice of c<vvnii)L' \s\\\\ all ii ^ dijrneties
privilcd|;i* nod casfialeties iJierto be-
«m^in«^ an iini^^ione rrmrr fii*h" liearit
witli ane other j^ifi uiid corni^-
bis mn^tie wnder his hitfliofs «'
the twentie third day ot
9ixtte eitthl yrurs raliticiii
. couiih^ioue ktid of ni'W m,
latid ordaining: the sM \
ialtoti nty\ -•■ 'T Lnutl* » u.^n i
Iklaitlund li Wfull son non
Ifcnd and L>..., . *.,( "♦ -i -. .i...:^,.. ..ti
ti»e dayes of ther 1
nu^lii-H y\\u\ :i(id (M
Itbch
ndc;. , : . • ^ ^ ,^, .
} extract forth of the books of privy a»un-
of anc htjnd p*rantcd bp Ilavid e*rle of
Kilii«lib ^ ' M GeAi*|;e lord
•r K <;of BaJnunooit
itr Ah'xiiodci . if flmikertouu
iidiir^ilutgiiU- - :r Ibtfwf daitii
dbe
l^ted
lui. vie.
r rrift and
m Uiriiiird
lord Mait-
titie sixt day ■
the fourth day of Augttst and twentie sixt day
ol tlctoWr Im ri c. ihrelie siven years Wherby
they are bound as cautioners and sorertie for
Nicolas lir^at and John Falconer that the s'd
Nicolas liryat and John Falconer shall fTaith-
fnllie and trewly ererce the office of niastere
ofhisma^ties conzic bonstc and shall loyallia
ptrforme the duety incnmhcnl to ther ciiar^
ake will in what may concern c his tna'ties
interest at the good "of (be leid^es And ia
special 1 1 1 tat they i« hall make faith lull payment
and delivciauce to the nmrclionts inhringers
of the bnllione and forraigne coyne be ex-
ch-iiH^L' i\i I tie stocks p¥en into thera by tho
siM win his ma' ties coy ne in manec
and . '.■ 10 the t>'me accustomed and setl
donn by the orders of the cunzie house as th#
s'd eictract wnder the hand and subscriptione of
sir Peter Waderbunie ilsirke of the sM privy
counsell bearing' the samcn to be reg'rat in
the books of privie counfiiU u|ion the tenth day
of J ally Im. vi c. siltly two years more full J
bears Toj^ther with ane'act of parlian>ent daited
tbetwelvth day of June Ira. vi c. lixtie ane
years order! njr and ^ommaadins^ Charles Mait*
land of Hattoa general I of his majesties l^lint
in Scotland and sir John Falconer maister of
the cunzte house joyntly and equally to coyne
or cause be conzied in turners three thousand
stun weij^fht of good peuther coj^per whicli waa
to be provyded and iurnisht by the saids offi-
cers equally betwixt them without any mixtur
of brass and the samen turners to be of the
same eictrinsick value the lastjurney of turner*
was viz. ane turner weighting fine drop ano
halfe (four grains less) of troyes wein^ht as
the said act of parliament wnder the hand of air
Archibald Primrose clerk re|reater Ivtars togi-
theralso with anc act of hit*.toa*ties priry
<!oiinsill daitted the twentie day of CIctobcr
Ira. fie, sixtie three years ordaining the tw<>
mark peices the one mark pcices and the balfe
raark peices to be coynedin roaner therm spe-
cified viz. to pass iii'li^^l.tncK-* through a mrlne
to be ciitted by cutters to be troned weighted
and justed pevce by pfi^-e and to be nrmted by
peices that goes by swey and scrned and that
the irapr^inone of the «iid two mark peices one
itiark aad Halfe roarit peices bearc on the one
syde luH maHie« fece and etB-^s cxprosi m the
povnj«ihes thwn ment' And the superscrm-
tione thenn exprest and one Oh^ other ^y^^ the
coat of armes of Scotland witli ane eftcutchjon
byitselfe in maner v'in specified «nd ordam-
iiV the two nmrk peices to be ten deueirs thcrr
teen jrrautis nvnteen proim^ and the woirht of
H- . .. nrk peice of fyve denires mx ifittineK
ant^ prouns twelve »cco!>d« atid \\m^
i^f thp half markepeice to be twodcntrrt
crraios ten protmes eiq:htccn secoudt
1 rvvitii three graines uf remedie iipof^
each t%vQ mftlk peice aise weillliKht a^ li^^f
with two jjruifies of remedic ujwi eacli c
mark poioe and half JJ^^ *W***
heavietJie saidjsspeci UiiMrttlwsyi
troned weighteil and Jn^^l^ i^^? ^f
as afbrs'a ir»d ordaining flit
i
191J
34 CHARLES II. Procetdings against the Earl of Laudtrdalt [^19t
mony to be of aoe exact finnesand aci*nrfIjii{^'to
Uie trae stUndert of the kinf^dutne which is eliven
deaires fynne out of the tire and two grains ot
remedie ulse weill aboreas wnder as the said act
of the dait forsaid ^rnder the hand and sub-
scriptionc of Mr. Alexander Gibsone one of
the clarks of secret counsell bears to^ither a^so
with ane extract furth of the books «)f secret
counsell of ane band <rrant^d by John Falconer
son to sir John Falconer ane of the masters of
his ma'ties Mint as princinall and James earle
of Southesk Robert lord Carnegie Alexander
lord Falconer of Hackerton sir Alexander
Falconer of Chalilk Mr. David Falconer of
Glenqnliarq*r as cautio'urs and sovertics for
the said John Falconer daited the twentie two
day of February 1m. Yic. sixtie four yeares
wherby they are bound and obleidged con'llie
and se^rallie' that the s'd John Falconer shall
failhfullie and trewly ' exerce the office of
master of his ma'ties conzie house* and shall
totallie performc the duety incumbent to his
cbarfi^e alse weill in what may concerne his
ma'ties -interest as the good ot the leidges As
the sM extract wnder the h^nd and subscription
of Mr. Patrick Menzies ane of the clerks of
secret counsell bearing the said Itaiid to be
reg*rat in the books of priry couusill upon the
twentie third day of February lin.\ic. sixlie
four years l>ears And alse produced ane Report
of the officers of his ma'ties Mint in the Tour
of London to hir ma'tie anent the silver
monyes of Scotland daited the twentie day of
February Im. vie. siventie three yeares Item
ane extract furth of the books and recorcls
of privy counsill of ane order and warrand
from his maHie daited at Whythall the fyftcentb
day of May Im. vie. sixtie eight years pro-
rogating the Coynes of the copper money till
the first day of August Im. vie. sixtie eight
years terminat And concloude<l probation an<I
for the said earle of Lauderdale therin de-
signed Charles Maitland generall bir' John
Falconer master John Falconer his son and
John Falconer wairden there further innur-
radgement in his ma'ties service i*atitieing
and approveing all and wliatsoever quautities
of copper then already coyned by the said ge*
Derail and maistersor that should becoyoied
till the said first day of August sixtie eight years
And bv the said ordor authorising the same and
declaring the said ordor to be a valid and sufii-
tient exoiKM-atione to them of ther wholl actings
ip ther rex'ive offices anent the premisses and
commanding theutid warrand or unler tobt* re-
corded in the books of privy counsill as the Kaid
extract wnder the hand and subscripone of Fa-
trick Menzies ane of the clerks of his ina'tirs
privy counsell daited the sixteenth day of Jully
Im. vie. sixtie eight yeurs more fully bears
with ane act made by the lord comibsiont r
his grace and lords of his ma'ties privy cuiinsiii
upon the thretie day of March Im. vie.
nventie four years finding that the commis-
Moners apfiohited by them for compairiog the
haitl esseycs of silver witbia the cunzie house
"d 4or Dieltiog all the sud ^ipey peaces of sii-
ver and trying tlie fiiiness of the same have
proceedit orderly and circumspectly with good
deliberatione And allowing and approveing the
report made by them theranentand interpoDiDg
therautlioretie ther to and drclairing that the
geiierall master coyncr wairden counter wairdeD
sinker asscyscr and all other officers and werk-
Dien of hismu'ties coyn/.ie house had dewly
faithfully and uprightly wsed and exerced
ther offices ilk ane of them for ther own pairta,
con forme to the acts and ordinances made ther-
anent in all points and exonered them ami
every one of them for ever as the said act of the
daitc forsaid wnder tiie hand and subscripone of
Patrick Menzies dark of counsill more folly
bears Togither with ane other act made by tlie
lord's of his ma'ties privy counsell upon the
twentie fif't day of February Im. vie. siyintie
fyve years commanding tlie said general! master
worker the wairden essey maister compter
wairden the graiver and other members of
his ma'ties Mint each of them in tlier aeyerall
stationes and diarges to proceed to the working
and eoyning of the four mark two mark one
mark lialfe marke and fourtie pennie peaces
according to the tcnnor of the wamuMl moi-
tioned in tlic said act And that the sinker or
graiver of the Mint doe maik graive and sink
yrones agreeable to the circum8cri|itiones anA
impressioues of the severall spedes theria
mentioned withall dilligence wheranent the said
act should be to the officers and aJl others
whom it concerned ane suffitient warrand as
the said act of the daite forsaid wnder the hand
and subscriptione of Patrick Menzies ane of
the clarks of counsell more fully bears Tog;ither
also with ane prot^lamatione containing bis ma*
jefnicjs gracious pai done of indemnitie daited at
U indsor Castle the twentie siventh day of Jully
Im. vie. siventie nyn years togither Lyke«
wayes with an exlioncn^tione siipersCTyToi
be his ma'tie and subscryved be tlie duke
of Lauderdale secret'\ric dcclairing command-
ing and ap;»ointing ilie coynings of all cop|ier
money in six pennie and two pennie peaces
within the kiiigdoine of Scotland to be at and
upon the tenth day of February Im. vie. eight*
years terminat and concluded pro hac yice and
for the said earle of l^uderdale therin de-
signed Charles 31aitlan(i ^^laicrall sir John Fal-
coner master John Falcon .-r and Alexander
Maitland wainlens of the said mint and ther
sul)stiuits ther farder incurradgement in hv
ma*tit*s service His ma'tie by the said
ratiticd and approved all and whatsoever <_
titles of cop{>er then already coyned be the i
generall and maisier since 'the tirst day of May
Im. vi c. siventie siren or that should l>e coyned
till the tenth day of February uixt thereftir
Im. vi c. eightie years authorising the same aad
dcclairing the said writt to be ane valid aad
sulHlient exoneratione to them of ther wholl
acting in ilu^r rex'ive offices anent the pn«
misses and farder commanding the said writt to
be recorded in the books of privy counsill as tha
samen exoneratkine daited at Whythall tiM
fourteenth day of January im. fie.
and&thei'S.for Offtcial Mahtnaiionn,
TCflfs recorded in the bonks of privy couiiRill thrsniffT
n^ n Hclivprftnce n\vw (he back Vf*of upon the
•ivcatrenth day ol F*Miruflry Im. vi c eightie
\eiin* «nd aue net extra citni ifwitipon wmk*r the
nand and suNscriptione *d'Mr. Alexander Gib-
■one cirrk to ihe privy eaun^ill tot* tliu tyme
beans Toffither nfso Cviih one proclaraatmne
conceruin^ llie coyn daitcd i\\v. fifth day of
March uii. vi c. eii^htie one yeani ordaining
und ''■-'' in.r that m tyme y'rafterthe nnce
of I iihl he ill value ihreejiound four
^li I : mooy aod for ibnt eifect ordnin-
the four niarU peit*es which then ware
at fitlie fhrcc sliilllnp four pennies
should hi» current iherafter nt tiAie aix sluUin^j
and the inferior specie? uf thnt'COyne pmpor-
tiontahlc us the s'd proclamalione of llie diiitc
loused more fuJly henrs And the »aid sir Jcdm
Falconer compeii-and lie Mr. George Uftu-
nerinan und Mr. William Flcicher advocats
his i^ro'ri* who produced in preseure of thesaids
Jordsi nnc gift grantei\ he liis nia*lic wnder the
the priry seaM to and in fivours: of thcfiM
air John Falconer daitcd the last day of l}^~
.-,.., J, r.- ini, f i r. and sixtie years ratificini'' and
w)^ two former Fifls jcfranted hy his
... i .iher to the said sir John of the office of
master of the conie house of Scotland in swn
far 05 concerned him in the hutli tcnnor and
contents and of new piveing and cranting" to
the s'd sir John Falconer and after to hi* de-
ceSse to John Falconer his son the gM office of
ii!B<?ter of hf'« Ttm'tie* coynic house In the
^md to he eflTCeii hythem
:tr anc other dureing all the
^uycs ft iliiji' liletyme and lo t'ue lonjjent Ijfcr
o** them tvro tis the sM ^if\ more fully l»ears
And the sjiid Mr, James Fal<
}*en»onalUe who d eel aired he
Archbald Falconer and M -
other defundcTif Him >; 1-
lepionaof all the smf. ,^ ; -^
it;in! is wriit^i abovL iccil by them
Alleadgtince* and r« V ex'ive made
and projHjMcd for tliem in maner wnder written
rrptvrs d'tplyes triply es <juadrt!plyc» qunio*
/ivi? wilder \% fitten made therto witli the
umniondi comptccmpt hook^i missive
IrtK't:* ctmlracts hands tickets aod'wy' writts
atW mmtioof'd pmiUiri'il ntul d^ |"i*Ui'»nes of
A
nJt^Hiu \\\ II iogiiiier
M ith ihi: eirt I me against
lll«. ...k ,1.. ..y..:rp upon
tht ttecf to
th nrctll
!ie
ry ply ativyned liie iiaKU lonis of counwll and
a«-«naiie decern en jiiid ordtnTtr-; the snid
Charle* carle of Lauflerdak' ! id
Mr, J amc« Falconer as repi mI
deeeist John Falconer Initc v. ;ardcu hif» farther
Upon anft or o^ of th»* paKHiv** Itllps ahoip
A. D. JG85. flOl
John Drummond of Lttndie hi$
ma'ties rhe^aurer depnt and Uu^'h Wallace bit
ma'<i«.-<t ea«th keeper for his highnc«*?\Tst* nod
lirhove uf the fiounie of twentie shill
of free profeit upon ilk ptnmd ot
thousand Rton of copper Wfnlk thcsfiuN lortU
ffinds to l>e coyned he the saiil gcneraU anil of-
ficers of hiK UKi'tifs mint in ine tir^' r
jurnay more nor was i\] lowed he ttie
extendioHf to the soume of two hnudrti V, , ,» ^ ,,. .^^
four thousand pound** Scots mony and alsethe
■aids lords deceniit .in.f mriniu-t the saida
Charles carle of I liard lord
Maill and general Is mi . ritasii r
Mr. James Falconer as n f
deceist John Falconfr his ; t
upon ane or oy' of the ; Is above
mentioned and Arehhahl 1 - so counter 1
wairden definders (whom the &;iitis lords (indi
Tyahfe ^ ^in^ulos in fwiidum^} to make payment
to the saids lords high thesauror thesaurer de*
put and cash keeper alcove named for hit
rua'ties wkc and hehoff of the 5:oume of twentit
?fh»llmc Hcots of free mony upon ilk pound of '
fyvethoii«anil four hundreih fourtie lour ston^
ol' ropf>cr Whilk the saids lords fHndt more nor
was allowed he the M' a rrand«i the second copper
jurnay befur the art of indemnitie extending Ifi
the soume of eightie Rivcn thou^sand oyn hun-
dretli and four poimd Scots mony with threltt
two shjlliner Scots for ilk ))ound of three Ihous-
antl nyn hundreth nyntie nyn slon of co^pef
Whilk the Baids lords finda to he coyned olW
the act of indemnitie extending' to the soum#
of ane hundred and two thous^tid threi
hundreth nynti« eight pound cig-tit shilling
mony forsM And lykcwayirsto make uayitioMi
'^ ' fiaid lord hig^h th e Jan rer lord the?saaref
and ^a^h keeper nbore nametl of tht
.'t' of nvn thousand fyvc hundreth threttt
two pound lour shilling- Scots Ar the ditferenet
found be the «aids lords of Uie finnes of tfjt
mony coyned be them from the fi noes of tht
indented atmidart plate appointed bt* his ma^tit
from February Iro, tJ c. ku ventie lour lo Au-
trust 1m. vi e. ei^htie two years and of tht
Boumeof ane hundreth fourtie three thousand
siven hundreth twentie six pound mony fors'd
a» the value of ane hundreth and eig^htie lwt»
j St on two nnces'two drops of ClusitcHs headt
tweejis and scraps Which the saidii lonls flindt
to be coyned he them without any nssey since
the act wf indemnitie and of tlie souniu of
fyve thousand Ihree hundreth eighlic six
fKiuutl mony forsM as the profeit arysioif hy
the difference of the dean of Guilds \vci|t,diti
made use of by them from the Scots jjyll %<ii%i
doun hy bin maHie and of the soume of si^
thousand and six hundreth pounds fot tlk; re*
medirs of weight of the silver coyned frorif
rhe fjr«t day of 53eplemher Ihk viC. seventi^i
three veers' to the first day of Sej^temher
Im. vi c* eightie two
maintT the itaids loni
RHtd C 'Imi-h-H V7\v\i of '
\'tMjr'* and
m fykt
laini the ^1
itanl tor4
ih r laif
-oK:tuU\*
lUl., Af»
i}
\
34 CHARLES II. Proeeedmgi Mgaimi the Bnrl ofLamierdak [196
tterliDgr contained in the ticket g^rantd beiir Jobs
Falconer to liim with thea'rentstberof firom the
first dny of January Im. vi c. sixlie nyn yevt
extending to eight thousand nynf hinidreth
tiventie eight pound mony fbrsaid And tht
saids lords have remitted and beirby remittt
the second article of the forsM ly beJl mnent the
twelve shilling upon the unce of bullione and
the eijght article anent the profVita arryiiDg to
the king by the bullione given in to the offioen
of the Slint yearly and not coined to the lord
bight thesaurer the officers of the Mint beiog
rcgullarly and in course lyable to oompt to him
for the samen And als the s'ds lords have as-
soilzied and lieirby Sbsolzies the said Ricfaaid
lord Maitland and sir John Falconer ffom the
points of the fors'd lybell in so i'ar as coBoeniCi
the first copper jumay And assoilzies ij» s'd
lord Muitland from the a*rent of the kingf
stock of twentie thousand marks and the
annual therof for tiie years preceding the twentie
third day of September im. vi c. sixtie eis[bt
years and lykewayes the s*ds lords aaeolnss
the s'd sir John Falconer from the s'd a'rent
of the K*d twentie thousand marks and an-
nual Is thereof for the years preceedinff his
entrie to the office of the master of the Slint
And in lykemainer the saids lords have as-
solzled and heirby assohues the haill deleiidcn
above named from the a'rents of the souma
above decerned except as to the a'rent of the
s'd stock of twentie thousand marks appointed
by his ma'tie and four thousand nyn hundreth
pound of douUe payment and the six hundreth
I)ound sterling contained in sir John Fakouer
ticket to the earl of Lauderdale and decencs
and declares the s'ds defenders quy t therof and
free tberfrae now and in all tyme cominff
Becaus the tyme of the first calling of the s'd
action and cause in presence «f the saids lords
the said sir George Al'ckenzie his ma'ties ad-
vocat and sir Patrick Home advocats for bii
highnes interest haveiug repeated the Brsi
article of the fors'd somonds bearing that albeil
by the comooe law and laws of all nationes the
coyning of mony without warrand is dis-
charged especiallie copper or black mony and
by the laws of this kingdome and particaHaii|y
by the eighteen act paiTiament the third king
James the third and that tlie kinss ma'tM
haveing since his resturatiun granted wanand
for coyning of six thousand stone weight ef
copper at two severall limited tymcs Yet tka
generall and master and other officers of tha
mint have coined iburiie thousand stone weighs
of copper and every pound weifirht of copper
haveing yielded to them thrcticvix sluUiitf
Scots of advantadge they most be lyabie
*' singuli in solidum' to refound to the king Ifaa
some ly belled and declaired his ma*ties ad*
vocat insisted tor the fors*d the thretie lonr
thousand stone of copper coyned by them si
the tymes above mentioned more nor the siS
thousand ston allowed be the warrand extSBd-
ing to nyn hundred seventy nyn thousand wmk
two hundreth pound Scots Against wbioh il
wasallesdged by thss'dearle of LsuderdalsaaA
195]
to make payment to the said lord high the-
saurer lord thcsauier deput and cash keeper
above named for his ma'ties wse and liehoove
of the soume of twelve thousand three
hundreth sixtie eight pound threttin shilling
four |)ennies Scots mony as the profeit of the
cxalta'ooe by crying up of the mony arrysing
from the bullion payed in by the marcnands
since the daite of the proclamatione and not
compte<l for And als of the sonme of twelve
liundreth twentie eight pound tberteen shilUng
tour pennies Scots as the profeit of the exalta'one
arrysing from the bullion and current mony be-
longing to bis ma'tie and lying by them 1 he tyme
el' the exaltatione And lykewayes of the soume
of fourtie three thousand two hundreth uglitie
six pound Scots as the twelve shilling upon the
unce of two hundreth and eightie ane stone
twelve pounds fyfU^en wnces and ten drops of
doUcrs and doucatdouns meltcil doun from the
siventeen day of January lin. vie. slvenlie
throe y cares untill the first day of January
Im. VI c. eightie two years And lykewayes
the saids lords decernes and orduines the saids
Churles carle of Laud(^rdale and Richard lord
I^Iaitliind generalls and sir John Falconer laite
master of his ma'tics Mint sin^ulosia solidum
to make ]mvment to the said lord hig^h the-
saurer lord thcsairer deput and his ma'ties cash
keeper above namc<i for his uisiHies wse and lie-
hoove of the value of the ordinary a' rent of the
fors'd soume ofiwcnlii* thousaud marks allow-
cil and payed he Xxva inu'lie to the saids generall
and maister of the jVliut I'or buying in of bul-
lion (und which uas not accoirdlngly done)
and of the ainniul oi' the aVentpro ra/a as
followes viz. the said C'liarles earle of Lauder-
dale of the said aVent of twentie thousand
marks and aimiiall for the said a'rent yearly
aUer it becom due from the year Im. vie.
six lie two yearK And that the stock was ap-
pohited by his ni a' lie untiU September Im. vie.
eightie two years extending to the soume of
twentie lyve thousand six hundreth pound
The said llicbard lord Maitland the other ge-
nerall of t])e Mint of the said a'rent of twentie
thousand marks and a*rent of the said aren't
yearly after it becam due since the twentie
liiinl day of September Im. vi c. sixtie eight
years that he rceeavcd his commissione And
the said sir John Falconer laite master of the
samen a'rent of twentie thousand marks and
a'rent of the said a'rents aller it becam due
yearly since his entrie to the office of the
master of the Mint Ami als the saids lords
decernes and ordaines the saids Charles carle
of Lauderdale une of the saids defenders to
thake payment to the said lord high thesaurer
\o\\\ thesaurer deput and cash keefier above
named foi* his niaHios use and to his behoove of
the forsuid souiue of four thousand and nyn
humlreth pounds rceeavcd be him in double
payment of his said tliree years sallarie with
the value of the ordinar a'rent thcrofi'forsaid ex-
tending in all to the soume of siven thousand nyn
hundreth twentie ane [lound ten shilling Scots
And of the forsaid soiune of six hundreth pound
fffirf other $, f&r Offtdal Mi
lord Mnitlflmi iher pro'n* above nnmed Primo
tfiat thcr coiilil be tich* proc*'a snstained a^H
ibe lord Mailland bccaus he b^ing out of the
tdogJotiTe itii* t^rnr of ilif* raising of the
■mnomh was cpitleJ upon siitie it;tys atid ihe
rfny of coniperranee> is not yfteome Ami for
the carle of Laiiderdiile and oy' dci'tndm's
*l»<j\i , , " ' _ ihequantiHr ^ ^s
<if 1 lit iiiPiistt'd I ^d
thhi i'nv lit/itrnii rs iMJ:;iiL tO lit ASSwI/^uni i ninO
becatis the act d' purliament founded one dis-
ell«rg€tonly thecoyniiig of black money hy pn>
▼at pH«one$ or incorporations the same havting
been practised by some touties wlierof ll»er aie
peaeea yet extant And iJie act was made for
tlie remedie of (hat abuse aod wat intended in
fftTOurfl of the officers of the Miut and not
agaiati them and it can not be instanced that
ever Ihe officers of the Mint ware called to
queatiotie for auie qiiantitias of copper co^ ntetl
nor did they coHipt tor any pro6t and eicre^
of the copper coy ned the same hcinpf alwnyes
l»ooked one a perqniffft of Iher ot" mIo
Ibe king hes gra ntcd exonerations '■ - 1 *
TBllanifoy* officers of the Mint inru fn the
first copper jariiay and the second Terlio Uie
defc^n are sccnretl hy the act of iudemnifie
siTentie nytie wherbjr not only these are in-
dcmoified who ware in the retiellionc hm alaoe
allperaones tn pdhlict tru4 nn to ther tnalver-
sationes or roisdimanrs and any persuit a^inst
them aither adrendictam pubhcnm or priiraiaiti
is di^har^ To tvhicli rt wus n^plyed lie the
said sir George M'Kenzie his ma^ties adrocat
and sir Patrick Home advocat for his highnes
mterest perse wers that his maUies adrocat
insists primo loco agH the earle of Lauderdale
and the other defenders called and as to the
I other allcad^ances the lybell stands relevant
notwithst ' " 'icrof Becanse :s~ ' ■' '^rst
alled|[rea;, wer and priviU n-
ingbint^. ,,-.4,.,iand the same ,- ^. ^,^1-^1
lin|>orlaiice both as to the kin? and the sub
jeclA atid the act of parlia't niaks uoe diNttBC^
tionc hut generally prohibits the coymnsj of
black money without warrand And it is the
publict interest of the kinLfdome the cop(»er
mony should not he coynd hy the officers of
theoffictirs M' tlie Mint at ther pleasure seeng
by hovi^ much hiack tuoney is incresed so far
l^ttlie !(tlvcr coyo shbaited and it wold be of
JBfctter danger to allow hbertic in this to the
i^Dcers tif the Mint then to other persones
who wmler that pretext alight coyne alse
I much black mony as they pleased to the pre-
judice of tred and riiiue of the countric And
it is a fVi
act of* I*
or inctK,.-.
filQiiv ieeng
simpV and -.
far*!
Ttni:'
..11.--r|;
c that the
tiu to toiuii
t o yne black
nig ot black mony is
I it ^c barged And a* a
ers of the Mint
;. wahoiii unrrnnd
'Ulehtm^elte as gene rail of
lire iitie act of parliament \u
the year iin w c. sixiie aue to warrand him
iM tb« i€$t^t ilie olBccij of tho Miat to coync
three thousand stone of eop|ier the first eoppef
jurnay And ane act of Cfiunnetl tn the year
Im. VI r. siventie three ior coyning other three
thousand stone the second coj^er jurnay Ani(
it can net er be instructed that ibe li»nner otfi-
ceriof the Mint did coyn anie coper wiihout
warran^l and the reasonejs why they **are
never petsewed for l. ' i ' ruid*-
beeaus they ware al« ; I dul
not betray ther trust nuii amuhL-ii tin uhilj and
cuutrev bycoyning of moiH? copper mony then
was allowed by the warrantlt* as the la do
olHceni of the Mint hes done And efco tho
former officers of the Mint dii) not pretend to
hare tlie benefite of the copper coyne a* 11
pertiulslt of ther office hut only by a parlicudar
allowance or donatione from tlieltinsj And ih«
earle of I*auderdale himselfe knowing that the
copper coyn was not a perquisite of there offict}
he proci»r<^d n particuUar gift from ihc king of
the lienefite of the ane halfe of the copper tha^
was allowed to be coyne<l by the warrandd
And Ihcrforthe 'I" ' in swa farr as ibey
liavc ex'ceedeil 1 1 1 I > aught to he tyabtu
to the kin^ sini^uii lu ^uHiium and cannot be-
long to them as a peniaisite of ther office Ami
as to the second alleadgance founded upon the'
e.vonerntiooes it was replyed that the exoner-
ation es cannot liberal the defenders from the
abuise and mahersatione committed tn re-
latione to the copper coyne at the last as in
what was coyned more then what wa« al-»
lowed by the wanauds becaos the exonera-
lioncsrelats to the severall warrands grantetl
for coynifig of copper money the ane in the
year 1 m, vi c. and sixtie six years and the
other in the year Jm. »ic. eigbtie years thd
first in the ^id year ]m. %i c. sixtie six re-
lailttig to the act of parliament in the yeare
Im. vie. sixlie ane for coyneing" three lliou-
s&nd stone of copper and flie other in the s*<f
year Im. vie. eightie rctaiting to the net of
codnsell forcoynmgoy' three thousand stmte
And albeit his ma'tie did nttit^e atid approve
the quanbties of copper already eoyticd or that
should be coyned betwixt and the day theria
mentioned and exhoner.'i the officei^ «i* the
^fitit of ther wholl actings in iher rex\ve
<»i i! the premisses Yet thai cane ntily
U Hid of the coyningof the qininUtic'
of coppfji" contained in the acts and warrand*
grantef) for ih»t eHeet to which these warrand*
«l ' :ie hut can never be ex-
ti rat them from the abuise
uiitj HI tiiLoauntiev Lu coyning more co|»er
mony then they ware alloweil and which is soc
liirr contrar to h' -t--t'ft of the great pre-
judice thai the ' uiint^ by soe much
copper mony i-. l . „_^vJ by many acts of
parliament even wnder the paiue of death And
u is %ery wei 1 knowen to such exoneriiiionei
tmiy Iw* procured upon a mi«rcpreeieniati<uie by
the laws and customs of all uattooes nf»c i^ucn
gilts of exonerate one are sustJ«inf>d * nise pre-
♦ ii('n veritate in tanium* and therfor untetf
t t.vtioneM did bear exprcstj tfae
ti ocaand mftlversaitiuiiei
J99J
34 CHARLES Li. Proceedings against the Earl 0/ Laudardak [100
Aud that Aoiwiibstandint;^ tlie kinffs ma'tle
had exoDred them * ex certa scientia' no such
gtineraJi exoneratione cane be sustained to up-
perat any furder then to exoner thein as to
ther acting in relatione to the six thousiand ston
allowed to be coyoed by the warrands And in
the caise of sir Walter Seatoue uho was lurks-
ruan of his nia'ties custonie house ulbeiihe hade
coupted to the excheqV and obtained ane exo-
neratione and discharge from the kiujr under
tlie great seall yet therafter beiu^ called to ane
accoiupt by vertue of a cumissione from the
Kiu^ and it being found that the king was
prejudged in the accompts made notwith-
»ta..(!iijg of the dischargi' he wtxn necessilat to
pay in to tlie king fy\e thousand pound sterl-
ing At nhich tyiue the lord thesr dejmt
in as sent ns ane of the commissionevs and this
same defence being proponed before thecom-
uiissiouers appointed by his ma'tie for tryall
of the Mint They jTand that these exonera-
tionesdid only relaite to six thousand stone
which was allowfni by the acts of parliament
and counsill to be coyned within the ty me con-
tained in the war rands and prorogationes
nien*t in the exonerationes And therfor was
not ane exoneratione as to what copper was
more coyned then the quantities contained in
the warrands to which they particullarly re-
laite as appears by the report which is ap-
proven by his ma'tie And as to the third al-
icadgance founded upon the act of indemnete
it was replved that the act of indemnitc can
oot secure tnc officers of the Mint agaiust the
abuise and malversationcs committed by them
Prinio becausit appears by the narrative of the
act that the occatione of the makein^ therof was
twofold ?iz. The tresonable prinri|des of some
pcrboncs ag't the goVinent both in church and
state and the rebellions and disorders that enswed
u)>(»ii the same one the auc hand and one the
otiK r tlie hiimorons factions of discontented
Iinii.Lcs uli:» wndcr the pretence of gri^auccs
jaii i;iisi-c;»ri'senlcd the pnblict judicatories
and hail tlicrby waikueJ his rna^ties aiitho-
retie reiirchcuted in the same and that his
ma' lie was gratlously pleased to reclainie and
M'cnre both TliHrforhis ma*tie u\m\\ the nar-
rative forsM allenarly doth by the sM act
seciirr btith the persones dissatislied to the
govortnriit and the governors and ministers
uud«.r lii-> ma^tie in iiiuiner tl.crin mentioned
And Ivkwayes doeth indcninilie and secure
bis ministers and pcrsoucsinti'iated hy him in
relatione to any tliiu^ (lone by t!iem in his
majesties service and |K»rsewanee of the same
and asserting his ma'ties authorety as appears
Inith by the <«M act and a pap^r printed about
til at t/me intituled The Narrative ut his 3Ia'tIos
IVcceediiigs and Privy Counstilj I'rocccdini'b
in Scotland whitih bcHiir the only rl .i^i^neuf the
fc'<f:ictaud hisnia'tieiindthecownov'! i.avin;: noe
iithtr thing in ther conteinplaliune it is wnjnst
and inconsistent with hunour ofthe counsell
afid ciiunselloi-s that it should be strcached and
•xtt'iided to any othi-r crymcs and deeds that
i^u nut bti kaiJ to havti baeu done upon gcca-
slono ofthe ti'ubles and out of zeal! a^ost dis-
satLstied persones for mantaiuing hia maUiei
authoretie and which he liad connexoue with
or in relatione to the trublcs But by the con-
trary was done against his ma'tie and to abuise
him wnder trust such as the malversa'uo in
the maitter ofthe Mint which being a part of
his ma'tes stock and soumcs for defraying the
necessnr chargts of the ^overment it at any
tyme aught to be most faith fullie and honestly
manadg^ in tyme oftrubles And therfor the
statu torie part of the act cannot be extended
beyond the narrative and premiss* thereof
which was the causa inductiva of his ma'ties
granting the act of indemuitie 2. These words
that persones in a pnblict statjone and trust
should be indemnified and generally all such
as are lyable to any pei-suite for any cause or
occasione relaiting to aniu publict adraiuistra*
tionc by contriveauces actings oppositiones or
oy 'vvayes preceeding the daite of the s'd act ar
< verba hanonima* (sic orig.) and such wohli
aught to be interpret and restricted secundam
subjectum (sic orig.J materiam And therfor
seeng in the latitude of the s'ds words they may
be comprehensive of sh'rifsshirriff deputaclarki
comissars and all such persones ^fhich cao not
be denyed in some sence to be in publict sta-
tiones and trust And it ware absurd to say
that such persones were indemnified for tber
unfaithfulness and malversatione in ther sta-
tiones and trust the saids words cau be na
waves understood but to secure officers of stale
andf such persones as are in ther statiooe as
counssellors and officers or as members ofthe
armey be questioned as haveing an^r wayes
overacted or done amiss in the tyme oftrubles
out of zeall and for promoting his ma'ties
authorety and service As also persones in
publict trust according to tlie ordinare accep-
tatione of the word are only to be wnderstood
such as are under his ma tie and his interest
and trust in the adininistrationc of the gover*
inent of the kingdonic civell ami militarie as
the judicators aud specially the counsel! and
ofiicers of state and commanders of the
forces se^ng such persones lies only such
publict adininistratione as the interest of his
ina'tic and of the wlioU kingdome directly
and immediately and vet the officers of stals
who are indemnified by the said act as to ther
publict actings in capacity of counsellours ars
not indemiiilie<i as to ther privat actings and
malversations if they ware guilty of any relait-
ing on lie to his ma' lie and not to the trubles aod
publick And it cannot be said that either ih$
commissinnei-s of the tliessaury or thessaurer
depot or sir William Sharp cash keeper or any
haveing interest in the Exchequer are by th9
act of indemnitie secured and exempted from
counting and nialversa'one in their trust if
any should appear S. The act of indemnity
bears this express clause yt' it should not Iw
extended to such crymes as never wses to hrn
comprehended under generall acts of indenmitM
But 80 it is the crymes and malversationcs com*
milted by anio of the kings servants and offi«
301
and otktrt.for Official Matetrsationt.
A. D. 1682.
laok
cert eepeciiJiy in relutJoDc to hib iii&'ties re-
Teuewes aud jmhlicl moucy such as the Mint is
are not in wse lo be conmi ebemleil under ilie
acts i>i* mdetunilie For tlie act ot'obliirione and
iiid^mnitie by kin^ James the fift parltanieni
MJCt caput iiyntie two and act wf tndeinuity
be ijueeu ^\\xv'y paritameDt Dyiilh cliapler tbe
maventbb !»esivt^u reloits oufy to crymes ca-
uiilted dumu^ tUe truMes in the counirej and
rttK'lJionv but not at alt to abuses or iiiahersa^
tioLies cunintttterd by the kin^s ofiicers and ser-
Yttntsiti tyuitf of pt^ace especially in relatione to
I he kint^ s nvenew publict mony or wbut con-
cei'des the ^lint And the laU act ot'indeinnitie
in the )ear Im. vi c, sixiie two bears aoe ex-
press exct:pttoue of all publict moneys iutro-
milted *^ itli he any of his majebties officers tor
whii'li they bade not dweiy counted and re-
ceared discbarg^es tlierrif by such as pretend lo
iiare authoriiie lor the tyme to doe the same
J^y wbich it Is evident that the crymes and
DialversatioDcs committed by any of his inu'tie!«
ijtBcers or servants in relaiioue to bis 4na'lies
rcrenncij and publict nion) such as the 3Iiutis
are never comprelif tid it wuder the general I
acts of iDdeninity whtch doe only properly re-
laite to the trableii in the cuntry 4" The s'd ac-t
of indemnity as all former acts of indetiiuity
bears ane express exceptioite of all privat
crymes and albeit ilie officers otthe Mint may
{jreteiid to be pei-sones in publict statioties in a
airge sence au all persones wndcr his ma' tie may
besMas customers collectors and such Ivke
yet it can not be said to bo in a publict statione
relaiting- lo the government and a pnhhct atU
inini^rutionc of the kint,^dome wnder bisma'be
and to have been persewein^ and promote
ting his ma'ties service is onlie meaned and
Intended bv the &M act seein|; the said Mint
and Mini house and officers^ of the same does
not properly and imcdlately conceroe the
|yovtrnmeut but only consequentially as to
ult bis lua'ties other concerneti for it is a par-
licnllar interest of his maHies belonging' to
hltn by his prera|rati¥c and the officers therof
iher malversaiiones in thtr respective stationes
are not malvej'sutiones in any publict statione or
trustor admini^tratione belont^in^ to tlie wholl
kin^donie but prirat delicts ami such as have
no relatione uather to the government but con-
sequentially or to the trubles soe that they
irould have been vvbitlter tber bad been any
Irnbles or not and ci^nsctjuenlly as to all other
privat crymcs which are not occasioned
by thy trublts was ever excepted out of acts of
iiidemnitie And in speciall out of the %\\ kite
act the ireacbcrie and malvcrsatione of the
officers of the Mint in so' sence reasone or
justice can be tbou^lil to be iudeniifietl y'by
5to The same defence being proi>oned by the
officers of the Mini befor the commi^ione'rs ap-
pointed for tryall of the Mint a^ to wbicb the
(;i>inmi«^ioners ware of tlie oj^pinion that the
act of indeinnitie being only ^raatcd to those
that bad acted in or against the publict gover-
itient of the kingdom and not the deeds of mal-
tarsatione in iny pirlicullftt or pecalliitr statione
ubicli hade no connettione with of in relation© j
to the trubles or disorders of the countrey iik I
maitters relailiu^ to the publirt govermeat of]
till* kin^dome as ap[)ears by the report whicU I
itt appro yen by bis majestie H herein lo if waft J
duply ed by the s'ds earl of Lauderdale hiftl
priors above named that this proces is not onli« J
of great mifiort as to the p«i^sones ccnreene4;J
but also as to the preparative if the kings re«'
peaCed exonerationes and ane act of iodemottjT !
doe not secure persones in publict offices as to^ j
tlier maber£atioue in ther offices Ami ss to tha]
act of parliament founded one Anss^t» it con>
c ernes not the subjt'ct of this article for Uie
was a kind of black luony which was not [
per money 2o Albeit the act ware to be wnder* [
stood of copper nioney yet it does not eoncerD# J
the officers of the Mint who are the king« w&rm\
vunts in that office hut only pri vat persones oiij
incorporationes co>iitn^ black moiiy without f
warrand as is clear from the words of the ac^j
and from custome which is the best interpretee ]
of the law For it cannot he instanced that anyi I
officer of the Mint was ever drawne in ques-»^j
lione aither as to a civell or criminall effect for f
exceeding in the qnaotitie of coynadi^^e And;
the fors'd act of parliament graufs power t9 j
shirriffs to coovecu the transgressors beibc
them which inaks it t*vident that the act is i
applicable to the officers of the Mint and the
Mmt of this kingdome is also exact in its con*
stilutione as in any oihcr nation for tbtT artf J
juruayes made of the silver coyn ;uid accump%]
made therof lo the exthcqntr But as to thcfl
coynad^e of copper iilbeit ilvur be nece-ssity o£ j
a war rand for the peaces to Iwj coyned the eha^*. J
racier and impressione the cjttrin sick value a|1
which the same is to pass and the tyme XomX
coynadge yet tber is noe litnitatlon as to thft [
3aantilie except the kiDyfdoine he overbur^^j
eued with copper mony And in tins caicethfti
copper mony and iptanulic thei^f coyned ii|l
the Hrstjurnuy was fouud too litle for the ws#1
of the cuntrey insof^furas the warrand {^ranted ]
by the counsell for the last copper jurnay pro-
ceeded upon ane re pre sen tat ion e from thi
royall burrows who ware most concerne<l i
ibc coynndg'e of more copper money was foC |
the acfvanta^e of the kingdome as appears ' ~
the act of counsell Terlio the general! oft
Mint lies right to the half of the benefite of the
half of the copper coyne by gift from hiii uia^tiol
and the rest of the officers of the 3Iint bnv^J
rirrht to the other hallb as a perqnisit of iheftj
office and since ever the king hade a MinM
Uiey never compted for tlic bcuefit arrysiagj
from the coppex coyne Secuudo albeit thu
coynadjEfe of more then was contained in 1
warrand ware a cryme yet the defenders ar^l
secured by two exonerationes And wheras it i
all cadged that the same can not be extende
beyond the warrand s to which they relaiti
Anss^rs it is necessary that the exoueratioD^I
should relaite to the warrand because the kin^
in the exooera^one was to tenuinat the lyraeof
coynadge But after relatione of the warrand and
terminatiotie of the tyme the exooeratioae rutfi
3i CHARLES 11. Proeeedmgs mgamsi tke Earl of LimArMe [904
liable to any penotte for any cause or ocisasione
relaitingf to any publict adiDiniatratione by con*
tryveances actings ^:c. And discbarginj; them
either to bepersewed ad ▼endictam publicam or
privataiD and all judges are ordained to inter-
pret the same with all possible latitude and Ak-
vour And wheras it is alleadged that albeit
the defenders be secured be the act of in-
demnitie as to any punishment yet they
must be lyable for damnadge and interest
Anss'ris this persuit not beini^ founded one any
right the king bes juredebiti but upon a cry me
be excess of coining of copper contrarie to war-
rand which inters ooniiscauone as the crymeof
malTersatione is extinguished by the act of in«
demnitie so that the damnadge and interest ar*
rysing therefrae is also taken away To which
was triplyed by the s'd sir George M^Kenseie
his ma'ties advocat and sir Patrick Home ad-
vocats for his highness interest That they
oppon ther former reply as to the exoneratioiie
and act of indemnitie and it is cleared bv the
act of 'parliament that the coyning of black
money witliout warrand is simply and abao-
lutely dischaived and that wnd«r the paiae of
death And Uie law make noe disunethne
whither the same be done by the offioera of the
Mint or oy' persones but all personea what-
soever are discharged to coyn black mony and
* non est distmgueudum ubi lex non distinjifiiit*
And thereasone why non of the former ofimn
of the Blint hes been called in questione for ex-
ceeding the ouantitie of copper mony allowed
to be coyned hes been because it seems they
ware alway es honest men and hes not exceeded
the warrands Neither can it be instructed that H
they did exceed and being conveened that they
ware assolzied upon that pretext that they ware
the kinjTS officers of the Mint who certainly as
they hare the greater trust so they ough( tha
more to be severly punished if they transgress
And albeit sliirriffs and baiilics of borrows bjr
tlie act are appointed to make inquisitione if
any such striking' be made yet it does not fol-
low that the act should be therrrtbre understood
of prirat persones or incor|>oratioii(.'S Uiut strides
black mony but because the co> uing of black
mony is so' great a prejudice *^to the cnntrey
and tread Therfor the sliirriffs and baillict
ef borrows are appointed to take inquisitione
tberof that the stnckers be broghtto thekin^
and punished whither thoy be officers ofth6
Mint or oy' persones And in swa f'arr as the offi-
cers of the Mint exceeds ther warrands they
are but as private persones and aught to Ml
punished accordingly and the reasone why
ibrmei'ly ther hade been no coinpt made to ibe
exchequer of the copper coyn was because pri*
rat persones nlwajes <fott a right to what was.
allowed to be coyned wjjp durst not exceed ther
warrands but certanly if they had exceeded
ther warrands they ware alviays' comptable tit
the king for the same And in the coynailge of
copper ther is an essey for a warrand of the
peices to be coyned charecier impressione and-
mtrinsick value at which the same is to paai 86
much more as to the quantity that the cantregr
MS]
OD a distinct narrative vis. the kings ma'tie
for tarder incuradgement of the officers of the
Mint in his service ratifies and approves all
and whatsoever quantities of copper that ware
coyned or should he coyned betwixt and such'
a day and so the excesse albeit it had been con
trar to law yet being befor the exoneratione and
the same being conceaved in the terms afors'd'
does fully secure the defenders ther being noe
necessity to express the quantitie coyned And
as to what is alledged that the exonerationes
ware procured by subreptione and obreptione
Anss'red obreptione is not presumed unles the
same be proven and subreptione is not relevant
otherwaves not only this exoneratione but
many other gifb granted be the king might be
evacuat and wher grants from the king bear
these words * ex proprio motu ex certa scientia
or explentudine iK>testatis' or wher ther is * reite •
ratio actus' as ther is in this case tlier is no
ground to allead^ subreptione or obreptione
and ther exonerations are not of ane unuswall
atile but run in the ordinary stile of exonera-
tiones granted formerly to the officers , of the
Mint atler which non of them were ever called
in questione And albeit the warrand be relaited
in the Narrative yet theralW his ma'tie ratifies
and approves aU and what;M)ever quantities
coyned and not restricting the same to the
quantities coyned by vertue of the warrands
and all exonerationes granted to persons in pub-
lict trust or employment most relaite to the
trust and imploy ment but if the same should
be restored in so far they walked legally the
exonera'one would be of noe effect seeing the
law secures them in soe forr as they have
walked legally And as to what is alleadged that
in a reiuissione the speciall cryme must be
exprest Anss'rs the case is different for in re-
missioiies persones are considered only as crimi-
nally but exonerationes are of a mixi nature
and considers the merits of the persones and
ther mistakes or erroures they are obnoxious
unto and non are more obnoxious then the
officers of the Mint Tertio albeit the excess in
the quantitie of tlie copper coyned had been
a crown it is taken off by the act of indemnitie
and wheras it is alledged that the same is
only as to publict crymes but not as to malver-
sationes by persones in ther offices Auss'rs the
act of indemnitie is opnoned which is a na-
tional! securetie and auglit not to be infrineed
and the main designc therof was for securing
persones in publict trust for besides the publict
rebellione the act enumerates vy' crymes viz.
out* of misrepresentini; the publict judicatures
and ane other of malversations of persones in
Jmblirt trust And as to this last the act is more
ull then as to any other it being declani
that the act of indemnity should be alse effec-
tuall as if e\ery delin<^iicncie or misdemanour
wer rxprest and as if every pcrsone had a
speciall remisHione past in ther favours And
the act is most comprehensive in ther favours
also extending the same to all who had advissed
any thing contrary to the laws that had mal-
Tsraed in any publKt statione or trust snd are
^( ken t fur OffUial MahtrMttom.
A. D. iGSf .
[808
ut orprfjunlrniHl with sucU bmse inony
rMcli U i it far cunv€?iiteiic<f of cbaugw
•nil f<»r Li> I of |i(Kir [leuple hut not to be
' istfdc use €ii u;> ti> tUe ordinnry change of troile
«Qfl cunitucrce! the extrinsick vahie beings so far
l>etow thi:* true value of ntuoey and albeit the
generallfi of Mini have right to the halfe of the
tNiiiper by a ^ift froia his ma^tie And that the
orooers of tbt? Mint have ri^^ht to the other half
ftv n pt^rc{!iisit4>l tber oflice yet that can only be
iJuders;tiH»(J ui' whwt i^ alh*wed lo be coyiied by
ibc waraiidE viz. that th? six tbouiiaDd ston as to
which tliey are m>l now called in qiiestione
But that cnxi never be extended as to what was
coyneil Tuor« then was contained in the viar-
rancU lor if that ware sustained then the gene-
rails ol* the Mint needed not to have given a
wsrruid for co^uing any copper as aho if
they had hhertie to coyne more nar was con-
tained in the h arrand Then as ih»\v coyned
tlierty or foi-tie thousand stone more so by the
snrtie rejiKone they mi^ht have coyneil aue
hundreth ttiousand ston more and by this ac-
count tfier should have been nothincf but cop*
per mony in the oouatr^y which was abiiurd
And seeng^ his ma'tie was ^ratiously )de»^d to
allow the generatis and otfu'eni of the Mint to
coyne six thousand at two severall journey es
which was a very consiilerable giiX they itare
in pcMiimo dolo so far to abuse his nna*ties sad-
ness to coyne more then was alloweil by the
warrands And the exooerationes alledged
upon does relaite particullarly to thequantitie
menttonef* iu the warrands als weill as the tynie
Within which the same is uilowed to be coyned
and tiie prorogutione of the tyme mentioned in
the warrandH was nnl»e fur cleaiiuf;: the house
of the remfinderi of the copper that was un»
cuyned whirh h ordiimr to be grauied in such
ca^e^ but niH'd not to idlow any £^reaiiT (juan-
tilif to t>p cuyned then was contuineil in the
warrands nn ii clear fron* the severall prorogn
tii»uc« and exonerattoues ^ And albeit ihe
CTtoneraiione* had been never nubrep Hones or
ohrepdones as certainly they were yet seeng
ihey relaiie only to the warrands they can be
m» iwriw exl«oded and for what thedefender
490yiied more then was allowed by the warrands
Itie delenilcrs cun o^ver be secured by the act
of iuflctnnity for the reasiotiea above mentioned
which hi» ina'tie* adroc'st and sir Patrick
Home advui'411 Ibr his hitfhucs intrest here re-
|»eat«feefig it iso i
iiatv rdaits oidy to
moti tnlvreprtseiiliog liu
sHtionet i^OfQllltttod by
the n<^'t>f»'**'fi
he act of indern-
. in the <'Ountrty
.♦;.>,,^ofth*, j.,
it as to wK;
._ ninity that i .. . „,
t:r * nd v*-»ud(cl' «in v«l
f only to ihcr i 4>nM In
which docs no< relaite to iht' puLlict
of the kingdonie nor to privat
ilarly can never be extend it
ujd ioverfing of the kin|^
^monty which tail never be comprehended
' r aay a^ of indirnaoity Aud alb«^ tht act
|»v
tlivr olhcr
guveriuent
fsrymes n
to ilti> IP
of indemnity would free the defenders from
the puninhment juBtly due by tho law to such
gross crymes and tnaWersationes as hes beeti
committed by them preceediug tl»e act of in-
demnity as 'truly it can not for the reasons
fora'd yet th^t can never liberal thern tirom res-
tit utione of the vat we and profcita which be-
h1n^'s to his ma\ie upon the account of right
wiiliont respect to thccrymeordi^ed of tnalver-
sa'one W her unto it was t|uadrnplyed liy th«
sM earle of Lauderdate his pro'rs auovenaified
that he adhered to his former alled^nccs and
duply and wber as it is alleadged that the kings
interest here arisses u|ton the nature of the
Vights and not upon the cryme The ^amein of
noe weight for the defenders havcing his maM ies
command tor coyning of the copper and the
tyme therof what ever quantiiie was c€»yned
the profits therof belong U* the defenders them-
sehes the officers of the Mint haveing ever been
in use to com pi for tlie same to the exchequer
And * reus potest alle^are conlraria* and so if
the king haf e ane interest in Ihe benefit of iha
copper coyn he hes granted the halfe y'ofto
the carle of Lauderdale and the rest of tlic de-
fenders have right to the other halfe as perqui*
siiofther offices and if the excess of coynnig:
was a cryme then it being extinct by the act of
indemnity anie interest arrysing upon a crytne
being in modum pent it is also extinct and by
the act of indemnity not only are all personr*
indemnified ^ quo aid veodictam puhlicam^ but
sIao * quo nd vendictam privatum^ which takes '
off all damnadge and interest And when ane
cryme is abolished by ane act of indemnity no
intrest arrysing therupoa as atie tfiect of the
cryme can suhsiat otiierwayes acts of indem*
nity would prove a seed of plees ami tlier can
not he a more full one then that Im, vi r.
siventie nyn And farder repeited and alletlged
that the eartc of L;tuderda|je hes this geuerall
drjenci' that as general! of the Mint he if not
lyahle and crated to be heard therupon now or
llijii \\ niiiv t»f n>^*>rved to hitu tu l*e heard
v\ of the cause Wbtlkol*
hi II made and propoitedfor
the s'd dele'rs renly dwly triply and quadruplj
a'mi'Utioned made iherto witli the fors*d sum-
mund^ Heing all at tenth read tieard seen and
consideretl he tlie saids lonU and they iherwith
being weill and ry|dy advvsed The sMs lords
repelled the fors^d \ir&v allerfgeauce Scarinjr that
the profit of the copper coyne i« a perquisite of
lilt! deflendeii» ofBi*e And als repelledthe tbrs'd
v^alleadgant i' ' ' t^ uiera'ones
rid thatth< Is ua far*
■ti lathe iin...,M*i../ ._i,;i._..^._.i ^^ the war-
md the malver^atione in relatione to the
;j, -, .„ue And lykcwayi^ repelled the third aU
Icadgance founded ooe Ihi* act of indemnity and
Hand that the same can not lecure the cTefen*
ders from being lyable in reslitutione of the
value of the eop(»er coyne more nor was con*
taincd in the warrands AntI aiimitted the s'd ttrtl
article of the lylicll ancnt the copper coyned to
the s'd nerst*%^4?rs prtdMtJone a&d for pfoveint^
therof the s*ihi lords ftitigQtd to the s'd m
34 CHARLES II. Proceedings against the Earl of Lauderdak [SOf
holds lliat since the copj)er was im[iortGd fiy tlie
officers of the Mhit and the king hy the sot of
indemnity havein^ pardoned the cryine albcil
in respect of tlie itnpressione tlie iiiony belon^r
to the king Yet it must be with deductione of
the value of the copper and workmanship for^
the cry me beiop pardoned the law makes noe
distinctione whither the acquisitione was bona
or maktfide cspeciallie wher the species is re-
diiceable to the first mass and the defe'rs to hare
allowance of expenss of the workmanship be-
cause the work was profitable to the king
sceng the extrinsick value of the ooppfr
coyned is near double the extrinsick Talae
fl07]
Geor^ M'Kenzie his ma' ties advocat and sir
Patrick Home advocat to have letters direct at
Jiis instance for sumonding of such witnesses
and probatione and als to produce such writts
rights reasones and documents as he had or
would use for proveing therof against the sM
day with certifica'one c. Tlierafter it was far-
der alleadged by the s'd defe'rs pro^rs above
damed that the defender can Aot oe lyable fot*
the profits of the copper coyn hes been possest
by the officers of tlie Mint as a perf|insite of
ther office wh'ich iminemoriall possessione niost
secure ths defenders these profeits being *■ bona
' fide precepti fructus et consumpti' and ther
was never any count made of the copper coyne
9o Esto the profits of the copper coyn wliich
exceed the warrands should belong to* the king
yet the defenders can not lose the copper which
was coyned nor the workmanship therof ther
l)eing onlie ane access as to the quantity in the
ordinary administra'one of aiie office ami if
they should not have allowance of the copper
and workmanship it would be a confiscalione
arrysing upon a delinnucncie against which
the*^ defenders issccunxl by the act of indem-
nity To which it was rcplycd bethesM .sir
George M'Kcnzie his ma'ties advocat and sir
Patrick Home advocat fur his liighncs interest
that ther is no law or custoine allowing copper
coyne to the officers of the Mint as perquisit
due to ther office ffarder then what is alloweil
by warrand to be coyned and the proffeits
arrysiog therby cannot be s'd to be * fructus
' bona tide percepti ct consumpti' for sceng
they knew that ther was only six thousand
stone allowed to be coyned by tlie war«ands
They ware iu petsimo dolo to coyne more then
was allowed and the defenders cannot have al-
lowance for the value of the copper or expenss
of the workmanship that was coyned more then
was contained in the warrands For what was
coyned more being unwarrantablie coyned
it most belong to the king '• quia versabaulur
' in re licita' and tliey wex \n pcssimajide being
the kings servants and intrusted by him to ap-
ply the kings jrons and impressions to anie
more copper then was allowed by the warrands
And the act of indemnity as it does not secure
the dnfcndcrs from the cryme for the reastmes
above mentionat farr less from the restitutioiie
of the valwe of the copper that was coyned
more then was allowetl by the warrands and
that without deduc'one of any thing upon the
£ccnunt of the price of the copper or cxfiensses
of the workmanship which they aught justly to
louse l>cing in re licita And oppones the former
interloqtiitor wherin this is allready decided
Whcriiiilo it was duplj'ed by the s'd defenders
pr'ors above named that the forsM alledgeance
stands relevant notwithstanding of theanss'r for
iitiCt'iJicatinne (sic orig.) w her I he species is re-
duceable to the former matter The right of the
species l)c1ongs to him who had right U» tlip mat-
mnd albeit in this caice copjier money he re-
ducable to its first mass yet in respect of the
publict interest it must rcmaine alse currant
■ipn»w but th« commOo ground of law still
coy
thereof Ly keas the defenders imploded many
other peopfe in tlie work about fourtie or ther-
by besyds the servants in the Mintliouse It
was triplyed be his ma'ties advocat and sir
Patrick Home advocats for his highness inte-'
rest that the king does not pretend right to the
copi>er that was coyned more than was allow-i'
ed by the warrands by vertue of the specifica-
tioue but by vertoe of accesslone That the
copper which is the matter should follow Ihe
king's stampt and impressione as being the
more precious and is that which makes the
coyne to pass at such ane raite worth and
value As in the case of a pictur dmwn upon
auf^ wy' mans cloath ana table the cloath
and table will alwayes follow the pictur as the
more precious * Libro secundo de institotiooe
^ de acoiiirenda renim domini,' pa^therty
four ' Si quis in aliena tabula pinxent' Ana
the defenders can not have allowance for the
mass of the copper seeng they ware in < pessima
* fide ' to coyn more then was allowcu by the
warrands aud what ever right hfVe been pre-
tended if the copper had be^n brought if- ny •
stranger and tliat the officers of the Miot
had adhibit the kings &tanipt or impressione to
it without the owners knowledge that in that
raice the owners might have craved allowonoe
from the mass of the copper ]>ut that can
never be pretended in this case wher the cop-
per was broght in and coyned by the oflBoeni
of the Mint themselves And seeng that they
knew ther was noe more alloweil to be coyneil
but the six thousand stone so that they wil-
lingly and witingly have coyned more then
was contained in the warrands allowed by the
law They ought to have noe allowance for
workmanship upon the same ground as abo
they being the kings servants aud haveingml-
laries they ought to have noe allowance for
workmanship And if it ware otherwayes smi-
tained it would be a way to incurradge the
officers of the Mint in tyme comeing to com-
mitt the greatest abuiscs imaginable for they
would alwayes coyn more then w as altowed
by warrand if they know they ware to hare
ailowanri; for the value of what was coyned*
more then was allowed and thor dwes of coyn-
adge albeit therader should be discovered so
they should lose nothing but I he profits tb|rtr
they designe to get to tljemselvc»s And ttatt
war to incurradge the abuises and malrerM-
tioues io relatione to tlie Mint instead of mpU
tmi ot furs, for Official M
prc^sinf; anil punl«i1iinu; 0»« same wtul sveug'
* nemo (lehet lucrari ex suo dolo * evisu iu cvisw
htiwixt privut punier mu't'b tc^s tri mnttters re-
Iaiikil; to ilie Mint Whfniiitoit wus quarlrii-
iifycU lie tli« <lf'fetHlcr» iiro'rs u'riamt^^l (itilli»*r-
^^Ij- la their furmer aflcfigcance and liupl^)
^hl tftey tire not here in llie cuse of acecs*
^Sone And that instance of ane picture to
Dvhich the mauer did ndc was a sii»{^«-ultur ili
<0tfione ii)<:im»ef|iientiiill to other Inwh and the
tDurid of it was the excetlencie of the pttiurr
d It doei4 nnt (jiio ttd that wilh I he present
cnse To which it was (pTailriijilyed Uy hiis
Ttm'ties advocut and sir PatiicU iloine fur his
liig;tmes« ititrestt That this ivns rk'iire in the
Cftse of accesHiooe which hy the U\w was <inp
<it tlie Wftye« of aff|iiifm^ tlie rijjfhl and doini-
niun of a thioir and ther wti% uoe sin^uhirety in
the c»se instaiiceil It being a t>rrtaine pnnci'
pie in bw iind the opptiitoti of all the tawern
lh i i rhatsnl>je«H VVIiilk aU
1«mI I and pioponed lor ihc
Sttiiis. lir jt ii«i' 1^ rr|M\ IS duplyes tripJyos <jitHd-
ruplyes urul fpniititjilyrsalHt^eni^nlioncil ii»adc
therto iieint^ all at Itnth heard rtil setn artd
roniiidered l>e tfie saidii lord^i and they hcincf
therwiih weill and ryply advysed Tlic splits
lords sustained thf tbrMiid alhMi«^eance a?) to ilie
dedur.tiant! of the pryce ot the copper hnj^lit
«the defenders (more nor the six tho(i!>iantl
lie alh)ii«d) pre«*f*edintj the act of indemnity
Tl*ey afffAi^eH conrle^ceiidino np4in ami prove-
in(f the i)iiantitie4'of the tinid copper and the
pryce they boiig^ht the same at betwixt and a
eertaine day now by gnuo ^V hieh the snids lords
ij^ned to the saids defenders and thcr pro'rs
j>vc' named tor that effect with certitiea'ne c.
eri-eiyt; to his majpstic^i ad vocal to be beard
a^in«i ihe proljatione but refu'awl to allow
the delenders the pryce of any eopfier coyncd
l>y them fii nee tlvc act of indenuuiy nnilal^e
tefuiscd to allow any expenss of woiktuanghip
tinne by the officers of the Mint or scnanU
ivnder tliem in the Mintliotiive But deelaire^l
if any thinj^ Ije dwe and resting to cTtrinsjck
workemeii upon that accomit the V uill a I low
tli« wime out of the fi Hit end of tfie !»anmi^ to
be rtjoovered fffmi the defenders Thci'aiier
ilie said J»ir r > Ken/.rc his ma^tleH ad-
Tocmt and si Home advocat for hia
in;>' ' V insiitleil upon the
«• I ad lybell viz. for
pajfi iri'^tii ujr ior*<;n*i N^mnir of t^refve !4hillin|Tf
Kr.^is tor each imce of hulhonL' p*«y<^l m be the
iiP,*^, ^..^^c ^'^ily the years ahnxf nvc-iitionat
t^ lite Koume of three hnndreil and
f?l, tlinii^nnil TwuiitiJ S.4.t> mOUy
Al ud carle
of * ■ I , . n^iTirsl
that tht the i\iini I
ble i'm .<' rinr! hi
and tb' .* tor the btilhone
4mt tb^ ih*"»ciof parlin-
^1/' rrr^rvof the Mini
^■i^ft mri.t* I M Kione from the
^^^■itMmd ^i \>i Mid holdi
rompt to tlie exchequer for the stine And ibe
kinflf hes taken particuUar securely fnnn lb*»
rnasitwr of the .^Imt as apnear>i by a btmd pti>-
dticed granted be sir John Falconer and ane
oilier be bin Halber wherin t he v linviv found
cationuc And not only did sjir*fohn Falconer
as mnstcr of the i^lint make compt bnmeHy to
er Wherunlq
zie \uK ma*ties ailfncal and sir Patrick llomiii
jntvot:i» i'"f liiH bit^iies inieii'Mt that by Iho
act (.1 lit in the year Im. vie. sixtie
nynr 4 the Imllioue U being lb erhy
left in the optione of the marelinnts importers
of the g-oodt* ihenn metil toned either to pay
bidlionc in specie or to puv money furlhesaui«.
at the raite of twelve stnllin^ per ounce And
the mony «o payed i^ appointed to be delivered
lu theg^cneratlsHnd master of the Mint by tb©
taek«inien and coll cvc tors Ami the gcnenith
and master arc oblciijed to import the ^iocU "»r
btillion Ibeniselves and to royn the same so
llirit it IS eltar by that act that the generaUs ^h
wrill as tlie master is eomptablc for the tvveho
shillini;' payed in for every ounce of bullions
and not onfy is ibi^ MurraU lyable in this pur-
ticullar ca^e ai» i tfiincr^ relaitinsf to
t her own office ; ils, but are lyable *»
soiidum for all the abuses and m:tlver!tiation('^
cnmniitted by any other officers of the Mmt
And that for th^e reawnis Vrlmv They or*
tyable tirtutc officii by vcrtue of the office ai
gpcnemUs who i8 bis ma*tie!i suprctim ofticcrsi
in the Mint especially scen^' that by thcr i^'ifc
they have jiower to comptndl and redarg;weaU
other otficers uf the Mint And with fiue Am]d«
po^vtr to bold courts and to punish cl*»litupiLni»
>vhicb clearly evinces that not only the gene-
ndh lies tiic snpreiim power and superintend-
ence over all the rest ot the otficer* ot the Mint
hut also ought to have a particultar rare atn|
see r\ery^ tnan jvetforme his otlice faitldully
and in case they doe not to punish them ae.-
cordiui^y and to represent to his ma' lie if
any of them malvenie in tlier office that they
may be receaved (sic.) and others more faith-
fulfaud diUi^nnit put in ther place And yet
notwithstanding the g'eneralls did not only jn'**ss-
ly maUertie in ilnui^^ Maitinjg;: to tlier own office
but \^ I uiesan<l suniii i ' t
insrr ("crsof theMiii
their fttuH- niminuiy ami iu Uiairy ^^iiirni-
lars ware shairer*; wtUi them in thcr urtjtigt
prutit^J. And first to the r'-' ^' '*
his nia'tte allowed only s
lie coyned j'» **vn rfn..u i . :
was neir I «o
ih;ii y' was yned
• nt a wamind contrar to v dis-
.^'-•ing the same* under lh»+- :iji*li-
nteniA by which the coUJdr«-y wait ahiiii»ed
with co|*{>e.r many Thcr being mlmost ntm
Tminy left in the countrey but t^opjier inooy
which waK ane inlinit pn-jmliceto the cuotrey
9nd mine of tj-ade For the tyme <'
t»hoold havtt tp«!Ut iu coyatog of b
I*
■1
«1I]
34 Ch ARLES It. Pmeeimgi $gam9t the Earl 0/ LauitrMe [912
bis mastics lue aDd the uie of ihe narcbants
was for many years spent only in coyning of
copper mouy for tber own advantadge off
whiirli the ^eneralls did take the greatest part
of the benefit to themselves Nixt wheras his
lua'tie appointed tiveiKic thousand marks aa a
stock for buving oi' bullioBe which might liave
been coyncd and changed twenty tymes in a
year and which the generalb ahoukl have seen
done yet ther was noe bullion bought with
that stock of mony Albeit the genmlls and
master did most uniustJy exact the a'rcot of
thetwentiethonsantf manu from his ma'tie as
if the stock had been imployed yearly for buy-
ing of bullion As also albeit by the act of
pariiament the twelve shilling payed in by the
mar^liants in place of every ounce of buflione
should have been emplotred for buying of bul-
lion Yet notwithstanding the generall and
master did not imploy it for buying of bullion
but applyed it to ther t>wn pry val use And
albeit by the laws of tliia kmgdom the mony is
appointed to be of equaU weight and finuess
with the mony of England yet notwithstand- '
luf; it hade been minti^ forrWow the finness
of the standart And albeit the officers of the
BUnt ware only allowed to work upon the re-
medies in case of casnalety Yet they have
alwa^es industriously wrought upon the re-
medies so that the Scots mony is less then
the intended standart plat above two graines As
also albeit (sic.) be contrary to law and the na-
ture of all MinU that any money ahoukl be
coyned witliout esser Yet notwithstanding
the greatest part of the money ooyned in this
kingdome undf r the pretence of diiselllicads
awips and scraps hes been ooyned without any
pott esse^ which is the occasion that tber is so
much baise mony in thekingdome As also albeit
his ma'tie for securety of the weight of the mony
coyncl iu Uiis kingdomc had sent down a pyle
of weights from EneUnd Yet notwitbsUndmg
the officers of the ilfiiitmade use of the deun of
Guilds weights for recoaving in of bullione
from the marcliants which is four in the hun-
dred heavier then the Scots pyle of wdg^ts by
which they troned the peaces so that they
made use of different and false weights in re-
Ceavinc^io with ane weight and eiveing out with
ane other And the lord l^Iaitland ane of the
generalls albeit he receavcfl the EngUah pyle
at London by warrand from the king Yet he
would never suffor it to be made use of in the
Mint but one the contrary when the Soots
pyle was reduced to the true English pyle of
weight he caused transforme them and bring
tlieni up to the dean of Guilds weights and
continwed in makeiug use of these weights be-
fore the year liii. vi c. iMghtie two that the
officers of the Mint came to be challenged for
ther nialveraatione As also albeit the pnifit of
the exaltatione mony did belong to the king
yet the officers of the Mint dul Uke it lo them-
selves As also albeit ther was a conaiderable
quantitie of bullion yearly lying by the offi-
Ms of the Wnt uncoyoed the profeit therof
-^"1-' iiare bekM|g«| to the kiog yet not-
withstandingr they applyed it to tlictowD privat
use And albeit by toe law the melling down
of the current mony of the kimcdouie is dii-
charged under very aevefe peoattiea yet not-*:
withstanding tlie officers of the Blint did mete
down many thousand of rezand legdollen and
doucatdouns to the {j^reat prejudice of the king-
dome and mine of trade so that it is almost n
wonder ther should be any mony in the king-'
dome AU which abuisea and malverantianci
the generalls of the Mint by vertne of tber of-
ficeis should have looked to and rectified and
punished the transgreason which tbey were an
far from doemg that almost in all the fim'd
particullars tliey ware sharers with the afieen
oftlieMintthemselveB in the uiyuai gain end
profite that did aryae by these ahniaea and oonl-
versationes And to all these groMabuiaae and
malversationee the carle of Lauderdale aopec*
aded the unjust acting of new payment et the
same years salhurie and brvbttv in taking n
hundred pound to get sir John Iwoncr'a nigml
and exorbitant accompts from theexchec|tter ha
being then ane officer of state his ma'tiea the-
saurer deput and ane of the commias'n of the
thesaurie And oppression in extorting bandi
from the other officers of the Mint for camale*
tyes that did no wayes belonp^ unto him hot It
his ma'tie and did so far abuise hia ma'tiea an«
thoretv for his unjust ends as that he Ifaieal*
ned them that if thev woukl not yeild to hii
desyre that he would persew them hofor hit
ma'ties privy connsill of ilesigne to palUat and
cover his extortione under the pretence of ahad*
dow of law And therfor the generalls not onl^
for the acts and deeds of nMlvemtione dene
by themselves in rdatione to ther onn nffica
but also for neglect to see the other offiooM aff
the Mbt doe ther office as is dear from the
common Law Digest tit de administratione ler.
ad civitat. pertinent, lege nynth par. ei^
item rescripserunt curatoreni etiam noauaa
collegss tcnere si intervenire et prohibere dwa
potuit 2 . They wer oblidged ex colitractu vis. eK
mandalo which in law is defined t6 be oon*
tractiis in quo ipsius bnn& fide negotium aliqoid
alteri serendum comittit alter vero gratuito ant*
cript' butif the mandator have allowance eir
sallane for his paines then tenetur ad ezactiai*
mam dilligentiam et dc levisima culpn aa it
clear lege therteenth Cod. mandati libra <
tit. thretic fyf^h a procuratore dolum et
culpam non etiam improvisum casum
tandum esse juris authoritate manifeste denlniw
atur And Cicero in his oratione pro MimAv
in privatis rebus in quibus rem mandalam aon.
mmlo malitiosius gesserit sui queatus ant i
modi causa verum etiam uegligentius
sum mum dedecus quid enim recipis ma
si aut ad commoduni conversnrus ant 1
urus es cur mihi te offers ac meis coma
officio simulate -offers et obstas In
charges sayes he if he that hes undertakan-A '
oommission or mandat does not only malitiniMly: ^
cary himselffor executs the commission far hi^ *
own gaine and profeit, but also does il nqgin '
.gcctlyitjjsagreatdisi^^cetohim ForwhgF'didI-'
913}
9ni Gihert^for Official Malversatiom*
A. D. l6S2*
[814
be receive a mandat if be wm only to make
Uf« of it lo bb own piivRt g^aine ami tie|9r}ect or
why ili<l be offer liiriiM«lfe or obttriict bis c«)ii*
fUtuejiU {^aineor (iroIHe by [itakiii^ » shew to
4oaliilft service when in the momc-iyme lie was
4iieiii|(r alt fur 4us own pmtite and game wbii'h
*J«e« vary lively represent ifits case The ge*
nertik un«ier the (iretence of serveing the kin^
and iierlormiiijif ilier officer as they ware ob-
leiilf^ml by ther coraroissioae either eon verted
Ihe promts arysing- by the Mint to ther uwu use
w oilierwayeji iiegle<:ted lo ste the other ofBcers
at' tbe Mint doe ther ductie in ther rei£*ive
fiffioea acconjin^ to the power and trust com-
milted to the g'enerallji hy ther giW As also
Ibey are lyable ex eontracuj locaiionis et con-
duciioni« wbidi in law is tteiioed to be con-
Iracttis botne^fidei <]iio prt^tatur iLfiis rni pt
opera ceita merceiti; catiMiitita Sit ihat the
cofiduGtur who ^'lea allowance and sallarie lor
his paiDC and work is lynhle ad eitacUssiinani
diligeQtJaiii as is ck-ar t'roni lege vigresimo
octavo Cod. de looat. et conduct. I ibro i|uiirto
tilulo S€JtBifes»tmo quinio in jmlicio turn bicati
i|uam conituctj ilolum et cnstodiam non eimm
Ciaum cui resisti non porcKt vernre funstnt so
that both in tlie casie of a mandator or conductor
ojieratonim They are lyabJe for eicact difli-
genee in so farr as the law oidy excepts casits
S^nuitos. Tertio as they are lyoble ex otticio
aJid ex contractu so lykewayes tliey are lynbte
en quaiiii cenlnu'tu as nejfotiorum uestoiWtbty
Wing'iDtrusttd by bis mu'lip m illi the* manadt^-
mem of the Mint who by llu" bivt- arp i\iibfe lo
the exacte«t ddli^:citce lii.^tiiut. bbr<» tcrtif> par.
priino tituh» vij^euifno ocUio quo canu ail ex-
actiajniain qnivque dilitrentiatn cffm|iettaui' red >
deitf ralionem htrcsu^hcittaloiiMlifitfenHuni ;id-
hibcre qiualciu suis rebu*» adhibere solet s>l ruodo
alMfdiligenter (eo) co^nmodiu^ ndniinistruturns
etaci oegotin Which is clear in this case seen^
tbe kiD^ woyld have gotten fyve thousand in
iicotland who would have discharged ihb* office
more dilli;^eiiliy und faithfully then they hat^
dooe As also it ia clear fn»ui these titles' in the
lair de adioue exevcitoria et institoriu tbut
lb# eicercitor Navts the ina.%ter of the ship or the
Miter who is propo!»ed to he the nian{)d«^erand
overseen^ of any particuHar ertair viho are not
only lyMG Utr tlie exat'lesl diliigence hut are
)yaide in solidurn lege prim* id est dc exem^ilor*
action' par' tiuah librudeciino quarto titulo pnmo
fti plurtfs uavetn exeroient cum quoliln t eoriun
iaauhdmu agi poteat. Quarto ; they are lyabte
ex deheto vel ex miaai delicto vel ex lege Aquilia
irel in factum lor makeing up the toes and
pir^udice tliat any part b«?s sustaiiRnl through
ftoc otbeis de^MlIt as also wher thtr are many
iMitiea eOQCcriiod therein they are liabkiu so'-
fiduin aa is deare titulo eodem lege quinqna-
fresiniB prima par. in ttne cum plures trabem
aJicnam fiiraiuu isuaa sustiilerunt quain singu-
U 1mm wm pommA. imtii actio ne o nines teneii
4{daiiitis Kubtili ratiotui dici possit
cofum tetter i — uemuoein vcro tra-
•liasi As also thU is larder cleared in
tof ihiilwbcr many peraoaci are oou-
ctirring to the oomtoftting of a Ihift they aro
lyable in soliditm lege sexta digest arbor.
itirtum crrsaruro hi plures eandeiu ac arborein
surtum cecideriiit uuum singidos in scdiduni
agetwr as also they are I y Able ex crimine pe*
eulatns for abstractKig oi the pwblict numy
which ware the profits of the Mud hdongiog
t*i iht* king and converting the wune to thef
own privat use As also tbey are ly able ex cri-
mine de residiis by wtteriog the satne a^ pubtici
money and not im ploying^ the satne as they
ou^ht to have done Anil this is clear tykwayea
ill Uie case of spuUies and wnongous intromis-
sion t^^ wher the parties are not only lyable for
rv!»titutionc of the thing taken away but alsQ
an? all h able in soHdum To which il was du-»
plyed by the earle of Laoderdails pro*rs above
naineil that the kingbaTcingsecureil hituselTe
h\ lakeiiig cation from the master of the 5lint
ific genenill at most can be but lyable onl^y
subHidarJe al^cr the master is discnst and lliis
of Ihc bullion is coimtwl for the Exclietjuei*
And the counts lying bcfor them and wbal
ever the birds may doe to clear things <br the
ftitur it war hard to make the gmerall lyable
for bygaios To which it was triplyed by sir
Otforge i*l*kenzie his ma' ties ad vocal and sir
Patrick Home ailvocat lor his highnris intc*rtsl
that albeit the Exchequer hcs taken cauiiono
irom the master of the bullion for the kingst
ItLriltT securetie Yet that does not libemt ihe
general Is who are lykewuycs Ivable to the
king by the law and what'biilliou thi^y hav«
eo anted i\^r to the Exchequer shall be de<luccd
Which seci^nd article of the lybell ubove writ-
ten repeikd and insisted upon by liisma'tii-a
advocai alledtfeances proponetl for the s^<f *
earle of Lauderdale against the ^ainen repl|
duply and triply above written made iherf '
being all at leiitfi read heard seen and cona
dered be the s'ds lords and they l>eing tliei^
with Weill and ryply advised they repelled tli
fors'd alledgcance prOponed for the earle of Lau«
dti-dale gcnerall of the Mint in respect of tb
reply and triidy made therto and fiand tha
Ihe'generoll ot the Mint is com|)tjtbl lo iL'
king for the bullion and the proteiUi arrysin
iberfrae reserring to the gene rail his relie
against the master and other otiicens of thr
Mint as accords of the law And arliuiti
the fora'd second article of the lybdl
the perse wers probalione and for provein
thereof the sd's lords assigned to the safi
sir Gwir^v Sl*kf0zie his majesties advocati
sir Patrick Home advocat tor bis majesties m*
lerest a oertaiiie day now by gatne with crrtilU
calkme Tberafter the said air OeoryeM*kenzi^
his ma'ties advocat repeated thetlnnl artiiie ufj
the foi-sM lybell viz. That ther being allow edl
by the king to the general I and other otficerij
of the Mint Ihe a'reut of twentir lhousai*|l
marks yearly as a stock to hate h«'cri imployeil
by tliemtbr the buying of bullioni? and ct»inf I
tug the same and whicTi might have been cx*1
changed in gold and mony tw^tie Ivtues in a4
year Aiid yel they h^re not imployed tbtl
atock for llie ttia atiwe nfmioiiifd iiid dcclanA
tl5]
34 CHARLES ir Proceedings against the EaHof LMuJtrdah
bis ma^lies advoeat instiiteff for ]>ayiueiit of the
fi>rsM soiUDe of ane liundretl and ei^btic ll»oti-
saud ttud six hundred (lounds as the benefit that
liiith or woidd have arisen from the ct>vniii£f
atid exchange of tlie foi-s'd stock the years
*buv€ mentioned Asptinst which i t was ailed g'ed
Vy tile s'd enrle of Lutiderdale his pror's almrc*
named that the master of the [Vliot bein^ pnr-
ttcullnrly eoriecrned in thearticlc tliey must in-
timal Ihe i*ei-suite to him And alledged thai
ilier was nue act of parUa't that makes the
defender U able to i* implo\ein^ the slock of
Iwentie thousand marks la mainer for^aid nnd
tliereceaviugfaf the aVeut can not make him
lyable tor twentie thousand marks rcmanes i
aiviaye:! in tlie Mint as a stock -for bnv-
iiag of bidhoDe in cnsc of intcrnptione of
trad and for defraying^ the mexJcat cliai lt*^ of
the Alint And ndieras the &umm(>nd!j hears that
the huUione to be bojiglit with the forsaid stock
Dfi^ht have been coy ned and exchanged in qfohl
and mony tvventie tymes iu the year Itis a
great mistake it not being pohsible to iloe the
same sfix tyiuen in the ^ear and the aVent of
the twentie thou^tiind marks n ould not have ijc-
frayed the expen»cii of importing: the bnllione
Ihe exchano-e in some vc ars bein|>f my hijrh as it
did exceed ihea'rent oV the s'd soume VVlier.
unto it was replied be the s>'d sir Otniriie
B1*kenzie his majcii ties advocatand sir I*ntnck
Home advocat for his hit^rlmi^s interest lliHt \m
iTiQJestie out of liis princly care for the j^nod
of hi*i subjci'ts incicss ofiiKiny in the kiiijr*
dome and for advancing: hisownrcvenew by ll»e
Mint having appointed tw enlie thousand marks
IU! a stock yearly to bt^ imployed for buyin^j;- of
bullionc to hcj coyned and 'exchanged*ti>r his
ma'ties nsc and accordin&^ly his maje^tie have-
ing- allowed to tl»em in ther accouDti^ the a'rent
of twentie ihoutiand marks yearly They ware
in|ie^si(un lidr; to take atioxvaiice of the'a^rent
«f twentie thousand marks yearly and yet not
imjdoy it for hnymtj- of bulhono as wnsdes-
litvathy hiH majestie and y'lbr they aucjht to he
lyable' for that proieit mij^^bt Ijave arisen to bis
fiia'tie if that stock of mony bad been impk^yed
i'cnr the huyiny: of bidhtnio* uhich miyht have
been coyned and exehan^oti twentie tvmes in
a year tiK hes In u*e to be done in former fymes
And not only tbcr %vas alvvayes a stock of mony
in the Mint appointed for l»uying of buhione To
be coyned for bttj rnujesties use but parti-
cuLlurfy iu the year Im. \\ c* sLviie ane
ther is ane expreissuct of paHia'toppoiniinprthis
alock of mony to lie inipU>\ed in mainer fors'd
W hioh thin! article of the lyWll abore written re-
peated and itivLsted in alieadn^eanecs abo^e men-
tioned made aptin lit the wime and reply made
iberto being all at lert^h ved heard Si^cn and
cofisidtTctl be the baids loi'ds and they iherwitb
bein^ weill and ryply adv>»€d 'fhey befitr
uurV ordained the rompt Imoks relaltin«' to tlic
atock Hllo\%^d by his ma*tte for coynin;,'- of hid-
litinL" to hr^ jiroiluctd Ibrcleannif how (dten the
butbone that &hotdd have been boiiiiht with
ibe said i?lock of twr^ntie tlioitsaud merka bath
beeti coyned atid exchaQgcd in the year aud for
that enecl the said lords assigtied to the sH
sir Georjjc !Vrkena:ie his majesi!^^ "^1 'f ■
sir Patrick Honieadvocatfor b
rest a certaineday now byg^ain hn ^ . . *.. ,4^
count hooL^ relaiting- to the stt>ek and \
his mn'lit**; ndvocai letters of incident dilti
I in' I'et.fU'erie y \»f Tvith oertifii^tione c,
«!itr the said' sir George M'^kenzie hi* i
tits adiOL-at and sir Patrick Home advocat
bis hiohites interest re|>eated the R»urth i
of ihcsuidlyhleviz, (hat whereas the mony (
tbiJ* kin'^doM*ie is onlaiuetito be of ecjunll tiutia
1% it b that of England vet it is t*vo
then the sinudert of J^^ngbmd ther hein
indinted plate of silver cuueil in the two j
uhtrof ane bal/e lyes in Uie Tour of f ji
unit the other was s»ent donu hither and it I
hard to be exiict in ohservin|j tlie uniiie tiDnwm
in the ctjyne ther wus two grains of ren
allowed upon the mice of silver And the i)e
♦coders ha vein g- allwayci coytnHi at two ^rpii
less of every ounce and ih'erby puri»o»*iy iid
bftslcfl the itandel-t anil these two graia
amonutinLi: to twelve slitllinj; ujion the pouo
of silver they auu^ht not to have appl\ed ill
same to ther own use but mu^t he coinptah'
for tlte same to the king And in En'jldiid I'
remeiliei* doe belong to the kini^ and decUtn
bis n>a*( its ad IOC at for his hiy^hnes iiitrest i
sisled forpaynieutof the fors*d souine of an
thousand nyn bmidrcib and t^^entie (KMuidl
yearly the years above mentjoiied of the pr
arrysmti' by the diference of the coynefr
the fimus of the indented standert plate wid
the bcoetit of the reniedies bcinqf Iwdve \
liufj upon the pound of silver extending
years lylwll to the sonme of twentie four
sand pounds A ^ninst which it was alW^
the s'd earle of Lauderdale his pror*a
named that the master of the ftliat is
concerned in this article and he is not c*othp
in;^ IJdo That the two grains in every unce I
lowetl to the defender as a rem<'die The bin_
tdvocut cannot subsume agTiiust him if he hai
not exceeded the allowance 3tio That tb^
could bc^ noe dam nadg'e sn5^tained against Ih
c^rle of Lauderdale upon the forsM accoufl
that the money is not of suftitient fynnes lie
cans ther heuij^ a com is*, ion ti ranted hy th
kiOi,^ in aiino Im, vi c. sivenlie tmirfor trymg i
tlie coy ne It was found by the pers*mes coifiil
siond ther report tliat the silver coyue of l'
kin^dome was above alcvea pennic fynei _
so above the stunilart as the commissioue and
rejKjrt produced bears which report was ap-^
proven hy the kingf Ami iht rfor the deloQ
au^ht lobe assrdzied as to what uaseoync
beibr that tyme Lykeas ther bemj^: try all take
by tfie jaite commlssione the coyu %%aB fou0
in fynnCbS to be abf»ve the standert Whertmiot
was re]»lLe<l by his in a Hies advocat aiMl
Patrick Borne adviicat for his htg^hnes iiit<
that (he earle of J^auderdale and lord Maitla
peiieralls of the mint areaNe much concen
i*iid umvfX Ik? lyable to the kiny: for this and \
other articles' of the lybell as the maister <
other ofiicers oftbeBlint l^o Albeit lh«fr was lw#
i
•17]
and olhtr$,for (Official Mahtrtalioni.
A.D. 1682.
[SI
g^rnina of i*eraei!je albwed in caise of casii-
Acetic in caise tlie Jinness fell to lie over or
wn»l(*r yet liiul wasiio wanami for ibeofBfei's
Df ibe Mint to coyn coustuntly upon the reme-
dies as they (ltd )mt wtiatt^vtr be tbe rem«f*
•lies of finni-fis wbJtIier casual! or industriously
done yet the Kaitiea alwayes: belongs to the
kingr *8to As to tlie dischargee ^rarite^l be the
kiny as to the tlniiess of the coyn from tbe year
1 m, vi c. sixtie four to the year 1 in. ri c. siveolie
thrive It cannot be extended to tbe suh^iiijuent
years ntitlier aiiijht it to hberat the otiicert* of
Oie Mint even for these \^!^t% lueolioned in lUe
discharge because the Iryall u|Kni which it pro-
ceerled was aliojfether insuBitieut and by q
meer inisftake in .swe far as it is posiiivly of-
fered to be proven that tbe tryall was after this
iniiincr viz. At e^ery luelling ther bein^'' a
|)eaee of mony coyned cult in i^vo peiccs wiier-
nl'aneof tbe [leaces bein£( but [(jntj in the pjpe
v^ben the Irjall vviis made .some ol ttiese peaces
being mebed iJoun to§felher they ware fun ml of
milfitient fynnes Bnl ibe faltacie biy in ibise
that (a srnidl mettin^^ tbey wonid a coyoed a
far greater quantitie may be ten or tii^elte
Blonc vvlntdi was not ueer so fyn asi tbe staodert)
uiid of this tbey put n<»e more in tbe pype hut
tlitf lintfirf of tbe hM^x coyned of that melting
80 that albeit t her was a lar i"^ reciter ijtmnlitie of
bafiic luonyjoyneil then fyne mony Yet ther
wjis a bke pe.icea of both pnl in the pipe so
llntt wlien tbe outter fyn and ibe under tyn^
fieai'cs came lo Ije melted doun lo|»;elher m a
Jij>net it proveil in he of sinndert fynnes so that
nt tbttt tryal ibe b^net found to be finuer.hen
if lot st;indart wliieh h not to be inmgiued it
would have been if tber had hucn some cheat
in it Jor if* tbe mony coyned ware ahvayes
tinner then the staiuk'rt it wold rprtaiuly de-
-Btroyed tlie oflicers of ihe Mint in plnce of
tiiakein|:r any piine But the cheat was in
ttiis that albeit tber was the lykc peaces
putt in i)ie ]»ip« of tbe coy nadge of counter
fin nest silver and the coynad^e of the be.st
.inony which beinjj melted to^ihcr will be
Riire t'» make tbe linnet of sulFitieni fynnes yet
Iher being- a far greater quantitie coyned at tlie
inettiog'of the baise mony thin at tbe imjIlin^K
tjf the utter fmncs silver \u evident that al-
beit the liy^iiet made up of tbe peace in tbe pyx
was of standert fynne* yet the g^reatest part
€>f the niuuy of Scotland niiybt have been haise
mony As de facto it is so in etfect u|>ou tbe
maitter tbis was no trynll at all and tor the far*
der evincing of this it be** been trjed that al-
lieil some mark ]»eices bei of snfiitient fynnes
yet wher three nr four hundred of them is taken
togiiber and lOebed doun in a It^niet it would he
fomid to be very lar short" of tlie sundert as to
the lioness Anil hjj for evidence of ibe insuf-
litirncie of Ibts try all ther was no tryall at all
t«ken as to tbe weii^bt of the mony w"hicH w as
als»' inaleriall a« the fun»es» Wbitk the fourth
aiti« h' iilttir* lybell repeated and insisted upon
nl . made at^'ainst tbe same and reply
«J" ^ ncd with tlie tors^d exoneraWepro-
4tic4:d bciD^ all atteuUi red beard tieen and coti-
«idered be the sMs lords They being therwitli
Weill nod ryply advyscd they in respect of thfi
exoneratione produeed assolzied tbe delenden
as to tbe years preceduig llie s'd cxoneratio
granted by bis ma* tie in anno Im. vi.c. siven^
lie four Tlierafter his majesties advocai and s
Patrick Home advocat for bis bit^hnes^i intr
inmsted for tbe profits aboire lybelleil arrysing
by the difftrence of the coyne from tiie bnne
of tbe mdented standert plate witb the beiietiii
of tbe remedies beini^ twelve shilling upon thi
[K)und of silver yearly tiince tbe year Un* vi c J
sivtntiefour And u'lFrrcd to prove timt the
motiv was coyned con 4»lantiy upon tbe rem edic
As to which tbe s'd earle of LauJerdalls pro')
above named allediired tbe master was polf
lyahle and took instruments in the clerks 1iaa((
u[iou biii inlimalione of this persuite to tbes*d
f»ir John Falconer master present at tbe bur:
was lyahle to releiTe the i;-enerall of the Mint Tdi
wliich it was aos^red be tbe sM sir John Fal-
coner tiiat be dcclaii-es he dedyne^ to dcfeml in
this cause so fiirr as the king is concerned and
desyres w bat be now prapones roay be receaved
as a representa'one and not as tfefeoce in the
cause except t^uoud his releifl* And as to ths
copper cQynetl in the lii-st jumey berepreftents
that be is not ly^ble because he was then bis
ffather's. servant and compted lo him And as to
the second copper jurnay what he did thereici
was in obcHJience to the gencritll under whose
jnrisdictione he was and that he reclamed
scver^U tyniesand repeats his depositjODe token
befor the commissi one as to Ibih pint And as
to the a^rent of Iwentie thousand marks he
ou^ht to be free of tbe a'rent of the half y*of
for w hich he is only lyabk' l>ecans he bad the
mony in readines and itnployed it in buying of
bullion as appears by bis counts And if it was
not mad use ot in coynadij^e it vvas because they
had so much bullion broug'ht in to them by the
mercbantst that they could not make use therof
and bes counted for the wholl bullion frotn
Im. vi c. sivenlie i'y^^ te the year Im. vi c.
ej4>*hUi- Wliich compt ar befor the Exchequer-
ami propones this for his releiffmd fardcr rcpre-"
sents as to that article anent tbe tinnes of the
money and working uiJon tbe remedies tbal
ther beings noe injuuclioneof the ^uprem otticcr
viu. of the geneiall of the 3Iint to work con-
forinc to ihe indcuted btandert he is not lyahle
to relieve the gfenerall lie acknowleil^es thai
tber wi^ some coyned undei the staudert and
some above the standeit and nothing can
be sustained u[>un the aecompt of the remedies
becauis ther was als much coyned above tlu
remcdiea asabove[sie] ti»esame*ro which itwa
reply ed be sir George :Vl*lvenzie his ma^liess "
vocat and sir Patrick Home advocate for I
highness imerest that in so far as what is aU
ledijed by sir John Falconer as a detenco
against the king- It is answered that he ought
I vke weaves to be I y able for thecop[>er coyne for
the first copper jurney more then was jil lowed
by tbewarrands because he was coujunctma.^-
ter with hit father As also he did e\*crce the
o^ce of master at that iytne and uplifted the
ei9]
54 CHARLES IL Proeetiingi 0gahutthe EarUflMiArdMle [fflO
pfoKnts and was oUidged to know aM did kndm
that ther was more copper coyned then was
allowed by the warrands so that lie is lyable to
his ma'tie ahe weill as the generall and the
king' is not concerned q't compts and transac-
tioties was betwixt him and his lather and it
can not be made appear that ther was any part
ot' the twentie thousand marks imployed for
buying of bullinne they did imploy it for ooyn-
img ot copper for the matest part of that tyme
for ther eun use and the greatest part of which
they did coyneas buUione is now not allowed
for buUione so that they had aboundance of
tyme not only to coyn the bullione brought in
b? the n-irchands but also that bullion that
ahottld a been bought with the kings stodc
and i/hat the s'd sir John can clear by his ac-
oonnts baTe been payed to his maHie of the
bulUoLe shall be allowed as calhimnios to al-
ledge that ther was also much coyned abore
the standert as below the standert seeing it
will appear by the books of coy nadge And its
positifly offeretl to be proven that they alwayes
toyned upon Uie remedies and below the
standert Which alledgcance and reply being
all at tenth red heard seen and considered be
the s'ds lonls They bcfor ans'r allowed a
conjunct prolialiune for clearing how much hes
been coyiiod below the standert and how much
above the standert since the year Im. vi c.
aeventic four And for that eflect the saids lords
assigned to either parties pro'rs above nanied
a ceiiaine day now bygaine and ordained
either |Kirtie to have letters direct at ther in-
atance for summoading of such witness and
prubutione And sise to produce such writts
right;>> reasons' and documents as they had or
t\tjuid use in the said maitter against the said
day withcertifica'on &c. And also the s'ds
lords ordained the wairden and counter wair-
dens books to be produced and granted dilli-
genceto thesM sir Geor&fe M*Keuzie his ma'-
tics udvocat against the wairden and counter
wainltns tor that effect Thcrdfior his roa'ties
advo(»at and sir Palrik Home advocat for his
hiifliiivs interest repeated the fiftli article of the
tbfb'd Kuriunonds bearing that a con$dderable
pairt of the silver coyneof thiskingdome under
tbe pretence of silver called chisell heads
scraps and sweps hes been melted and printed
without any essey and so ought to he (»niis-
cat to the £ing8 use and decTaired his ma'ties
advocat insisted for payment of the fors'd soume
of nyn hundreth auft sixtie thousand pound
coyned without any essey and therby confiscat
in mainer alKive ly belled Against which article it
was represented and alledged by the said sir John
Falcnncr tluit it had been alwayesthe custome of
the Mint that the chisell heads and scraps which
ware a part uf the pots befor ware melted
againe in presence of the wairden And it was
thought that tlior was as great securitie in that
as if ther hade been any essey and when any
try all was demanded he was alwayes ready to
give the same And als it was alledged be the
sM earle of Lauderdale his pro*rs a£ive named
liMt w to the othOT officers of the Hial they
had ther oommissione from the king And tbo
generall could not invad any .other offiom
and seeing sir John Falconer who wae DMSter
withdraws from defending in the came And
informs against tbe earle of LaaderA&le the
earle can not be liable for his malversyalioMe
lyke as ther are two easeyesviz. the p^ eney,
which is only taken mr.privat knowledge
And ane otlier essey which conceoiea the puV
lict and which is taken after the peaces have
gotten the impressione and whenn ther cen-
not be follzior and this aiticle is hot small ex-
tending to ten stone or thefeby To which il
was replied be sir George Bi'kenMe and sic
Patrick Home advocat for his highnes istoresl
that the forsaid fytlh articie stands relevasl
notwihstanding of the ans'r because it bemg
clear by the Taw that no money, should be
coyned with essey if conlrar to the lewis it
be unwarrantable coyned it most belong to
the king And for the greater securitie that
therbenae money coyned without the cssaj
and that the cuntrey be not abuiaed with baiae
mony ther are two essey es used in the Mini
viz. the pott essey and the essey used ai the
printing and both cheeff essey es must be weed
and if any money be coyned without theae
esseysit must belong to the kiqg as keinff
coyned without essey And therfor the cliiseU
heads swips and scraps not being esseyed at
the pott essey whicn is the first eaaey ^ and
grvat securety against the coyning oi beise
mony was renielte<l they might hbve 'melted
als much alley with it as they pleised and which
is the great occasione uf so much baise mony
that hes been coyned in this kingdoiBe fiir
albeit it be preteodit that ther was ane essey
made thereof at the printing yet that can be
no securety because at that essey ther is oolv
a i>eace taken out of a whole trogh full whiee
may be is of ane other melting which of pufr
pose is made of standert finness yet the aMMl
part of all the rest of the pcices in tlie trogh
which is coyned of the chisellheads and swcfp-
which they doe not suffer the pott essey i^
the melting and so may be mixed with abe
much alley as the officers please, may be att
baise mony And it is not a small quantitie tb^
hes been coyned atler this mainer for it is ofp
fered to be proven that neir a third part of thft
mony coyned in Hcotiand these years by peel
hes been coyned without essey Whilk fiftb
article of tlie lybeil above written repeated siiil
insisted upon allcadgeances above mentioned
nuule for the sM master and generall and reply
aboYc specified made tlierto being all at lengtk
read heard seen and conndered be tbe s'de
lords they notwithstanding of the former aL*
ledgeances ffand the s'd fyflh article of ihe
lybdl relevant and admitted the same to iktm
persewcrsprobatioue And for proveing thcraf
assigpied to tbe said sir George Mckenzie hip
ma'ties advocat and sir Patrick Home advoeeft
for his higlmess Interest a certane day now b^
gaine and ordained his ma'ties advocat for )up
ma'ties interest to have letters direct at his i%i
atanoefor suBunondhig of nieh witntis «mI
m^dmtken.for Official Mnhenatluns. A, D. l6l|2# [I
IjrolNiiiooe anil alse lo (iroduce stVcli writts
rights reiifiotieB asxl ik^cuiaefils 9» h^ h^d or
woulij u&ti fur |irc»vin£f tbcreiif «gfnin'«t ibc s^d
iJ»y I'beri^fUriliv&Kidsir GVi' ' nziehis
tna'ties idvuciit aud sir Ta n^ »d-
vocAt for Uiti hig;hiK'si!< altt'r».^t r
IbrsiM jiixtuiiiclti of Uie foifc'd Uf
Ihfti ibtT wii' different weights tnad^- u^f* <it ni
Uie ooytut* boime in Bwafar as bis uia*tie id
annu Itii. vi,c. iijclje tw^ btivt^og » j^iyit of
wetgirs by ctintruct witb tJiw iiia«)tor u^ ibe
^"iut of Kii^liiiid tbcy seiiidowu tbnt pvU gf
' ]»tH li» tfiH eark of Lauderdale^ \^itb a
le of tbc mM ooiitr^ict wbi< h wcigbtft ware
111 Ills ket^ ping anil )fet Ibf; biilboiie Wa« takeit
wjtb tbc d«an of ^^nild of Edir^Mirgh bis
weigbUaiidtli vasUouedwithtbefrac-
tioD«« of tlie 1, 1 .1-, Atifl tbe sM earle is
. JjaNe bavcih ja bi^ keep-
uti^aodbavf I , iour in the
hiwdrtlli ' ^ ihe lorMl ilidereDt weights
ftnd decl >Vu' lies ad t^oc'at insisted upon
Ibe fors'ti -11 M rvi iickof tbe lybell for tbe Ibrsd
BOunie of fuurtie tlioitiiand pound as the four
of tbe bnudn^ib of tbe buJitone IvbeJU^J tliat
ibe dean *it gutldsi wci^bts ware beefier then
tbe pyll in tbe covDzie hciu£« for wbicb the de-
fcndei^ are tjable agtott wbich it was al-
ledged be Ibe s'd earieof Lauderdale bis pro'rs
•bore aamed That be denyed that artick in
•wa far as couceroes tbe earle tbat be made
Ilia of dttlen^^nt weightjj and as to tbe rent of
thioficifrK of tbeAlint tbe earle cannot be
lyiliie tor lb em in tbis for tlie law haveing
aUott^ed tbe marcl»ants eitber to bring in tbe
baUione tu tbe Mint but* to pay go iDuch luo-
B«y tbe general I wah not concerned ivbow sir
Joan Falconer made bis bari^an Wberimto it
%*^as anVred and reprtsenUfd by Ihes'J sir Jobn
Falconer tbat tlie lo«kintf lo tbe weigbts is in-
cumbent tirst to tbe Wttirden and tben to tbe
gen«rall And lie knew not of the first pyll of
weights sent down imlill tbe fourth day of Fe-
b'ry laait and uesw Imd any order or intinoa-
tione from tli '\ lu make use of these
vretebU To ^ v;isdnplyedbj' tlret-arle
of Lauderdates pro 're above naiued that be
knew not of ibe standert till tbe year Im. vie.
wxtie Riven and tlien tliey ware sent douu and
U*e inony trwnd with these weigbu But bow
or with what weights the master reeesafed tbe
tidlione he was not concerned it not beiuif
linder the iv of tbe general! or
wairden to lo eip^ht uiitiJl the money
be coined u: ta receave in the
bullionL* wiib' M* same for ivber^
4i>«**"^^'' "" in rvuHs tbev war«
(•^^ f e ttnd not taken by
^•if';. jij WHS tinv ibtni^ batsc
tkerwas so lutjcb abaitiHj of tb'e ptyce and
tli« butbunc arrot<* accordingly to the goods
iaiporlrd And tlie i^^wrvAW not bavtnng r«-
C«airi^l tbe bulbon nor bein-^ o6b'id^e:d to rc-
" f^ Ibe Mime hut the master by the act of
ameiji \» aljowed eilbtr to receiifelbe bul-
Iki in tbc ori^inaK
UcMie or mony for the same and if \\^ excee^'J
bis war rand he augbt lo nu^V fur ■■
And the clerk wan ako a check u^»
that this debait i» uunf^^ce&sojy ic(|
be bis ma'ties advyciit aud u\ loniif
■■"■'■■ ' '■' ■ ' "-■ Ulgbue^ i'ii' ' ! ' c
:d wllSt ^
to be ly V I
and its po,siL.<^
oJbcers of tbe ^
wjtii tbe deau ol ^- - _ i *
of ihe hiindredib beamr tben \\x< Iscois pyij
of weights and tbiil they aiiainp tvonrd the
peaces with tbe fractiones »
VVbilk ^AxX article ot the h i> -
aisled one alledgfanee moAie |or tUi^ K<ii\^ (4*
Lauderdale gen^all and the w'y' matie b/
the ninstei- aiul duply tiode tbertv togitbi^r
%vith tbe ansV above writtea u^« W bip
ma'ieis adrucat to the baill Being all at lentU
read heard and ^eeti and cotii^idered be tbe s^dp
lords they repelk-d tbe fors'd ;illeadgeanc^
tm/Ae fur tbe bM )2;enerall and umister ol' ilia
Mint in respect of tbe lybell aud reply butriug
tbat the officers of the Mint receaved in tby
buUione with the dean of Guild of Edinburgli
bis weights and troned the inouy with tbe
tractions of the kings weights whilk the s^dfi
lords flTand relevant to be proven * pro lU '
* dc jure' And for proveing tberof and of \
tbe quau title of tbe buflioue lybelkd in tbe hM
sixt article the saids lordti assigned to tb« '
s'd sir George Mckenzie bis iivVttes adf ocut |
and sir Patrick Home advocat for bis liigbn^^
interest ane certaine day now by gaine aoU
ordained bis ma' ties advooat perse wer to have
lettcrg direct at his instance for sumfooiuling qf
such witnesses and proba*one aud alse to pro-
duce such writts rights and docuiaeofs as b^
had or would make use of iar pmTciug tb*?raf ]
against the sMda^ Tbtrafter tbe s'd sir G«ofgtt <
>rkeuzie bismajestus advocat and mt Fatriok \
Home advocat tor bis higbues interest repealed
the fursMfleiveDtb article of tbe tyMI anenttba
profit of the exaltatione of tbe mony and coyn^
biince tbe pro<:>tamation w bcrby tbe mony ww
cryetl up being three ttbilling two pentiios one
the uncc and the pro^t of t^jcaltatione as to the
bullioiTP %i'lucb was in ti»e Mint tbe lynje qf J
' and declaired bis ma- ties advoc^t
the B*ds profeil« of the exidtationt»
IviHjJctl Lxtendiug lo tbe »'d soume ol" aijtlren j
thousand und two liundre^l |K'imds And tlie '
pro tit f if two hundretb s»ton of silver l^^ i»g m
the jMint house tbe tyme of tbe rxaliationc! '
amounting to eight thousand jKJund for
whkb tht y are lyable to bi^ umjostic Agaiust ,
^bicb article it was alMgt'd be the s'd earle ,
of Laudvi^inle hiB pro^rs nliorc named ibil
wher the marclntnK tk'"*^ « «l '" moi ♦v in place J
of bullion tbcrt (be b«iM^!
fiteof tbe exultf 1 . . *' in ttokr !
rn'i'haahilJing Hcols in (lijice ot the oimce of ]
bulli**ne And in tbat <?fir«c tire officers of the
Mint prof yded by ib<? bultione and ^btrthe
tnarchantsgavc tn tbf builioni> be bade tbe
923j 84CHAAtESn. Proceedingi against the Eart of lauierdak [SM
weight by the marchants in svre ikr as ooo-
cernes the kings interest and assigned to liis
majesties aclTocat for bis highness interest a
benefite of the exaltatione as is clear by the
prodaniationc crying up the money for the
marchants bein^ 'backward in giveing in bul-
lione to the Mint to incnrradge them therto
it was appointed that they should hare the be-
nefit of exaltatione and so wheras befor the
prorlaniationethey got fifiie fyve shilling eight
pennies for tlie ounce of buUione afterward
they got fiflie eight shilling ten pennies for the
ounce And therfor the defender cannot be
found lyable in the exaltatione mony unless it
could be alledged that the same was re-
clamed as the marchants b^ the officers of the
Hint and as to any bullion imported and bought
by the officers of the Mint they ought also to
have the benefite of the exaltatione in reeard
of the hazard of the exchange and others which
they can* To which it wto replyed be sir
'George M'kenzie his majest's advocat and sir
Patrick Home adTOcat for his highness interest
that seeng by the fors'd act of parliament anent
the bullione the marchant men were allowed to
pay in twelve shilling for the ounce of bullione
which the gencralls and master of the Mint
liaveing imployed for bullione and lb coyne the
same for his majesticf use the king augbt to
have the benefite of the exaltatione of the
bullione imported by the marchants seeing
tliey bought the bullione at so easic ane raite
since the proclamatione for crying up of the
money as befor And it is positi?eIy nflercd to
be j^ruven by the earle of Lauderdale and lonl
3Iaitland ^neralls in ane compt betwixt
them and sir John Falconer they craved pay-
ment of the exalt'on money and that by
the same reasone they cfaved payment tlier-
of from the maister by that same reasone
it must be dwe be them to tlie king non of
them can pretend right thei*to but the l>encfit
therof must bcloncr to the king And albeit the
marchants should have the benefit tif the exal-
tatione yet the officers of the Mint can not
make it appear that they payed it to the march-
ants and they have noe riglitto retain it them-
selves and thertbr they ought to pay it to the
king Which scvinth article above Cvrittcii and
alleilgeances made against the same and reply
above specified made therto being at Until
read heanl seen and considered be the sMs lords
they fliind that the profieit of the exultntionc
as to ail}' bullion and coyned mony lying by
the otHcers of the Mint the tyme of the exal-
tatione belongs to the king As also as to any
bullione imported by the officers of the 3Iint
since the crying up of the monv that the
profite of exaltatione lykewayrs befongs to the
king and as to the bullione sold and delivered
be the marchants in weight to the ofYicers of
the Mint The benetite of the exaltatione be-
longs to the marchants confonne to the act of
counsill viz. three shilling and iv^o peniiicii
upon the ounce And tbeHop the sMs lords
•ssolved the officers of the ANnt as tu the ex-
mltatfone of the bullione sold and delivered j*.)
* So in the Original,
t 80 in the Original.
certaine day now bygaine Ifor prbv^ing the
quantitie ot the bufiione and cnyned moaj
lying by the officers of the Mint the tyme oif
the exaUatione fors'd and of the bullion im-
ported l^ the officers of the Mint since the
crying up of the mony and ordained his ma-
jesties advocat to have letters direct at his in-
stance for summonding of such witnesses and
probation and alse to produce such writti
rights reasons and documents as he bad use of
for proveine therof against the s'd day Ther-
after the s'd sir George M'kenzie bis ma'tics
advocat and sir Patrick Home advocat for bis
highness interest repeated tbe eiffht article of
the above written lybell anent tbe yearly in-
tereit and piofeit arrysmg by' tbe bulliona
payed into the officers of the Mmt by tbe mar-
chanU and lyin^ in thcr hands yearly th*
years above mentionat and not cuynied And
also the nynth article of the s'd lybell anent
the melting doiiu of the leg dollors and doncat-
douiis since they ware current in the king-
dome and which current mony being melted
doun is not to be considered as buUione Bat
tlie defenders notwithstanding therof mnst be
comptable for tlie twelve shilling Soots which
they receaved from tlie marchants for the
ounce in place of bullione soeng they ongfat
to have bought bullione with the tame '*and
not melted doun the current mony of thelciiig-
domc wlierby tlie king and his sulgects re-
ceaved noe advantage But lose Aifd declaired
his majesties advocat insisted for his highne*
interest upon the s'^s two articles for payment
of the soumes above written therin contaSbed
confonne to the summonds A^ins which it-
was alledged by the earle of Lauderdale his
pr'ors above named IVinio That tlie gcuerall
of the Mint is not concerncil in the nynth
article but only the master Secunijo By t>*
hiindrclh luurtlc nynth act fyilecuth parlia^t
king James the sixth forraigne coyne naav Itt
melteil doun And also the sM sir John Fal-
coner compeired and acknowledged the mell*
ingdoun of foragne coy n current in this king^
dome because he found noe standfng lair
against it and that it had been tbepraetiief
the i^lint formerly which considerationes nndift
him to doe it \Vherunto it was ans'd be thi
pro'r above named for the sM earle of Las*
derdale that they desyred it might be mariied
that the master acknoM Knlires he had noewlur*
rand from the generall lor melting doun tbe
currant mony of the kingdome To which it
w:is replye<l by his ma'ties advocat and flir
Tati-ick lloim; advocat for his highness inter*
e^t that as to the* ])rofitc of the bullione iiB*
ported by the mor'ts and not covncd yearly
by llifi officers of the Mint an J as to tM
nieltiitg doun of the dollers ducatdonns and
other run-ent money the gVrall master and
other officers of the Mint l>cing conscious Hi
the same are lyable to the king in solidum"it
being expressly provjdsd by the fiflie nynth
4
t,/or Official Malvfratih
ftCt paHia^t ibcrta;nth kirtf^ Jtimei the si*€Ofjd
that ib« coy Hers coyti noe itioiioy thuin cryed
U> have coursv Id the laud undei' the painc of
tifatb And more fully by ihe six tic fyvt act
parliu^t eight king' Jame« the third by which
Its provydi^d ihiU in r««w>ct when mooy is
tnelted i(oun rt ts dtiutnistied wastcil and 'dis-
tn^yed in the tniiisintione by the tire to tlie
fpy^t prfjiidii'v oi' the kin^uome Tbertbr iioe
niony tbttt is current iu ihi; kiui^dome should
b« melted doun for buUiooe wtlhout special t
boence and charge fronj the kin^ And by
the stvent«i!Dlii act parlia't tir^t kiii^ Jametii
the sixth the nicUingdauo of current nciony is
dincbar^d under the painc of ei^cbeat with
the half of ther mDv'lls for tbo first Mi And
of the hafll rnov*11s for the second fait against
llie owner and mdter which does not dcrogat
fp" I cd' unrlia*t kin^ James the second
d(^ _; the same under the pain of
deuiii uiM'ii 1!^ lykewnycs agreeable to the
common law by which it is provyded that the
uieltiug iluini clipping- diminisbin^ or oiber-
vrtiye^ att^^i-in^ the curTv nt mony of« any na-
lioue 19 punUtiabio with death and if punish-
able with death much more aofrht the mony
aonteheddoun be confiiicat to the kiii^; Al-
beit the melting doun of the current niouy
bad been only simply di«;hai^ed and no pu-
niitbment at all ejected but only that the !uime
hade bt^n discfaar§fed by tbe law It ware a
Uatumll and just punishment to punish the
COOlraviners of tbe law by oonfiscating the
subject by which they contra%'eefi the law
An<l allhiit this punishment ware not exprest
but here there can not be tbe leai*t doubt or
iniestiuue l>e<^iiuse by the la.st fict the nidliniLr
liuune of the current mony is dLscbart;c<l undc*i
the pHiue ot contiscatione ot balfe of ttie
tuo%eHls for tbe tir^t fait and of tbe batll move-
able* for tbe second talt and the defenderi* hes
not only committed one fait by one mcltintr
uoun orthe current mony but all this wbyll
by past for many yean togitber did lykewaycs
melt doun the dollars and doucatiJouns and
otbf-T ctirrt'nt mony in place of bullioue to the
ill' 1 '^lu;e and trade and impoverishing of
til ^ic which a the great reasooe tber
jH sti iiur uiofiey 111 ihe cunlrey And ther bes
lieen much ot the ibraigae cuyoe that in cur-
r<-rr ■*' •' ' ' ' j-dome melted doun ADd ooe
ii m as it pugSt to have been
tf ■ u wonder tber should be any
ii* Jiiig in tbe cunirty And uemg
t; tlu' iiH ItLTs doun of tbe current
lii iod with the contisicatiofie
cil timi'b rnoie with the
Oiitili»< Ml li > ^ ^ A meltiLHi doun
being - -u . i ifeiu Liw and their
In' Iv !l ' iv>o hundretli fourtic
li 1 I i|j king Jstmet tlic
%ai AUnMii'^ till ' ' uyoe tub« br<jugbt
in to icrve »» bul OMtji^i^ cuuniiM
iMuae ^ ' ,\ :ui }% only a« to tbe for-
rti^i (« tiut to have course in the
ktngdoi,.. i^ Id Hbicb it Vffti 0)0»4 iust and
foouiibk that it abotdd ba llliU«il Oouu for
VOL. XL
bullioue but that c,anni>l b^ ^\(endit t»* for-
mignecoyne that is i- '
a« to wlucli foimcr 1 1
down tlierof stands yttjiiiLiT aim a* un>^ m
clear by ibe law 50 the reasooe of thu law in
most just and c«]iut«hle For when f " ' "■ ?
coyne is appoynted to have cout^e in
dome Its noe more looked upon as i , :
but our own coyne it being appointed t" t >>- »*
owr own coyn by his ma*ties warriUKHo Uiat
as tbe melting doun of our own coyne would
be a con trai^ent rone ol tliese laws by that aame j
reasooe the melting doun of forragne coynt
thats appointed to nare course in the king* f
dom as our own And if tbe defenders bad
melteil doun our own coyne as that would 1
have been confUcat to the king ao by tb« I
s^me re«UH>ne the doUers and doncAtflounet I
which ware current mony being melted doua (
coutrar to express laws wnder so severe pu» ^
nishment aught lykewaye* to be coutiscjit to I
the king without allowing tbe same as bullione 1
or aoy thing upon tbe accompt of dewes of J
coynodge tor the reasoncs fors'd and otbcrtJ
above niHiituiitrtl n hitting to the copper coyne J
V tt artjcleaof the sM lybclt^
t , 1 t ; .1 upon alledgeanoes pro*
pooed tor the earle of Lawdcrdale dfelaratjuut j
of the said majiter of tbe Mint and answer j
alH>ve written being all at lentU beard read]
seen and corisidireil be the saids Lords ^^i^j\
ifand the fon»M eight aiticle of the sM lybcU !
anent the yeat-ly interest and profile arr} Hitig b/ J
the bullioue payed in to the officers of the Mintl
by the marchapts and lying in tber baudtj
yrsjrly fln<l not coined in due time rclevatilj
;ind aduyittit tbe wiilie to the pcrsiewer** proba-
tioue And also fTaiH! t» >"« ♦'"^ •"liing dowai
ol the *follors tbesair i mony i«1
the kingdome and li »ince thttj
tyme they u are cut; lume can*
not be nilowed tu tu lh bulhbn#1
hirt thai not with stand mg they are eomptabl«|
tor the twelve sbilline HcotN which they le-
ceaved from the marchants tor tbe ounce jml
place of the bullione And udmiltit tbe saiAl
nynth article to the nerscwern probattone an^i
for that effect the saida lonU abaigned to the 1
naid sir frcorge M'Kcn/ie and sir PatnclLl
Hume adrocat for bit majcstica tntereift a «*er- j
taineday now bygaine for provt * •' r tail
eight and nynl article And or »^a
jesties advocat to bftir« letttfTK il*^ ^. »• iiui ia
iftance for bummonding of kucIi witness hd^I
probatiotie and *N* «" produce fc<**b
rigbtif reasones iu«(ii» en I
proveiog tberot ■ ^ «- nid du v
air George M^KcoKic tiia ma'h
Nir Fatriok Home adrocat for 1
tcrc«t rci^entrd tlje tbrsaid lent
*aid lybell That tbe enrb'* ol i
ccufcd doiible payriK*nt ol' thr
•* master of tbe Jlint vL/. mn
cw«; of lidV by a pmxpt tiotu tlir king
And lyk« *vayt*A Ktr John t^aleooer who*
• 9o ta tb« Oiigiidl
fSTJ
34 CHARLES II.' Proceedings &gmiui ike E&rl of Ltmiardak [888
offered to be proven and lie augfht to retbund
ane of tlie souines payed lieingf four thousand
Bvn hiindi'eth pound Lykwayesreiieuted the
eleTenth article of the above written lybell vis.
that the defender got six hundreth iwnnd ster-
ling as a bud or bryb from sir John Ffalconer
to obtaine his accounts allowed by the exche-
quer And alse repeated the last article of the
above written lybell viz. That the carle of
LAtiderdnle delerider extorted a sonme from
the wairden for the third nartof the remedies
of wei<^ht alle't due to the counter wainlen
Whcras the generall of the Mint being the
kings comutroller and these remedies belong-
itig to tbc King to whose use he should have
•cen the samen applycd and yet he cau«ed the
niony due for these remedies to be i>a\ od to
iiimself Against which it wns alledgedbe the
fe&id earle of Lauderdale his pro'rs nbovenamed
(denying the suid tenth and eleaventh articles)
that the said eleaventh artide was calumnious
and the earle is content to fmd the sauK^n re-
levant to be proven prout de jnre And as to
the last article alledorcd that the remedies of
the weight by immeinoriali possc-ssione be-
longed to the wairden and counter wajrdcii
and ther is nothin;: in the lybdl as to the re-
medies of weight and if these belong to the
king then this article will not have place To
which it was replyed by his ma'ties advocat
»nd sir Patrick Hfome advocat for bis majes-
ties interest that the remedies of weiglit are
Only allowed to coyn npon and to save them
from hazard when tliey are not without the
remedies But they must not work industri-
ously upon the remedies to the pr^udice of
the countris which if they doe the remedies be-
longs to the king and not to the defendera or to
the wairden or counter wairden the same not
being in itselff allowable and nothing being
dwe to them by ther ordinArio tees And it is
offered to be proven that the officers of the
!11int wrought industriously upon the remedies
^'hich were due to the kin|S^ and the per-
tewer needs say noe more but that the de-
lenders lies transacted upon that which belongv
to the king Wheninto it was dnplyed be the
Mid earle of Lauderdale defender his pro'rs
ftbovenamed adhearing to ther former alledge-
Bncf's that his majesties advocat aught to
lybell the last article thus that in troning the
peaces coyned albeit they were not found of
"ftuffitient weight yet that they ware stumpted
and vented which consisted m the generalPs
knowledge But if after the troning and stamp- ■
fog the peices be found not full wc^glit it is
nothing to tlie defender To which it was tri-
ply ed ne tJie said sir Oeoi^e M*Keozie his
Katies advocat and sir l^trick Home advocat
for his majesties intrcst That they opponed
their former rcplyes that the officers of the
.. Mint did indoKtriously tron the peaces ui)on
"tfie remedies and the officers of the Mint did
•o malv«rse as to the particullar that wlier a
peace came to be troned of a just weiglit they
iHd throw it bark and cansed sheive it domic
^amediaa H^ tftw/ <«biiantly and in-;
dustrionsly tnmed the pcioea upon the reme*
dies >Vhich three articles of the lybdlaboT«
written repeated and insisted H|Km alleadgaBcet
made against the same reply and duply abovo
specified made therto being all at tenth read
heard seen and considered be the saids lords
They ffand the forsaid tent article of the said
lylicll anent the earle of Lauderdale bis re-
ceaveing double payment of bis three years
salluric above mentioned relevant to be proven
trripto And als faml the forsaid ellevintD arti-
cle of the said lybell anent the carles reoeaving
a bud or bryb of six hundred pound sterling
from sir John Falconer to obtaine hisaooouots
allowed in exchequer relevant to be prorea
prout de jure And before answer to ne last
article of'tlie said lybell the saids lords allowed
a joynt probatione viz. to the iiersewer to prove
that the oOioere of the Mint did work indiistri-
ously upon the remedies of weight which ait
doe to the king and the quantitie of the reme-
dies and the wairden and counter wairden to
|)rove it by custome of the Mint ther was sny
thing due to them out of the remedies of weicfal
for tner office And reserved the coosiderAe
of that point anent the a'rents untill the oon-
clusione of the cause And the saids lords as-
signed to his majesties advocat and sir PUrick
Homo advocat for his majesties interest a eer^
taine day now bygaine for nroveiiig of the lor-
said tent and elevinth articles of the said lyMl
and als that member of the forsaid interloqoe*
tonr upon the last article of the said lybell ap-
pointed to be proven be the said persewer And
alse the saids lords assigned the samen day fbr
the pro'rs of the wairden and counter wairdsa
above named for proveing tlie other member of
the forsaid interloo'r upon the last article of
the said lybell and ordained either partie to
have letters of dilligence direct at ther instanoi
fbr summondingof such witnesses and proba-
tione and also to produce such writts rights
reasonos and documents as they had or would
make use of in the said maitter against the
said day reserving to either partie to dgssl
contra producenda and against witnesses m
termino as accords Thendler the said sir
George M'Kenzie his ma'ties advocat and sir
Patrick Home advocat for his roajestes intreit
insisted against the said Mr. James Falconsr
as representing the said decdst John Faloootf
his father laitc wairdan ufton the passive iMss
and particularly as successor to him tiiulo §^
crativo for his raalvei-satioiis in relatione to the
copper coyne and other articles abovcuMB^
tioned and fbr payment of the soomes if
money arrysing thcrby as also against ^Mk'
bald Falconer late counter wairden fisr thu
abuses and malversations comitted he hin hi
relatione to the article abovementioned It WM
alledged by the said 31r. James Falconer Ihr
himselfe That he hes ane dis]>o6itione fnm
his father fbr onerous' cans' an<l the same is
with the burden of his debts and this lyMI
being for vast soumes of mony lie dcsyw %
tyme may be allowed to him to advise wlmi
answer at wMl make theito And alseft wm
K.
^] mni^otheri./or Offieial Mahinaiionu
A. D. l«52.
[S
«iMgedb« ibe mid Mr Ximcs Falconer at
f*r for the said ArchbaUl Falconer Thai the
1 ArchbiJtl aii|flu to \v& ajiaaljcied )j«caus4^
^\\ is bui hill* Ix^jug- ^raut£^d allGr the
4»eda of malfersalion*- lyli^Mi**! To whilk it
WM revived be \\\h im / t aud sir
Ffttnck fioiiie ad vocal : i(il4>rc^t j
thai a« (4 tl> " ' ' ^*
James Falci i
' the ftti :
I nblJV» ;.].... ..^.iv;l., : „
I liie above writtfn urticliss
-^ ,^ (<»r Uie sauines tiboveineii-
Hf^nedtobmi be ntuit instnicitbt; ooi^roiis v^um
f>f Uic difipo^iittan uml albeit he sibuuld iuOruct
the onerous cauw? iherof Yet uotwithsUoding
hv uiusi be tyal»le to bts itiHJestte for tt»e dis-
|io»iiJun*» k'iug (jrantt'd by \lw i\ia\%ex Ut
ihe HAid Mr. J unites Fabniner durein*^ bi^
iruwt tJie tyr»j<^ lie was in the t>ffiu* lis>
prcsUKied iti iaw^ the sAme h^s been t^rantiHl ot'
nj€^ti*i The ihtb^r
thai by the ati^
" - - t-' MioiMjd Ihj
purpofi
iiciciff t
be admiue<1 to probatiane As to which it wi
represeuled by 4!ie sM brd MaitUmd that in
was minor wht*n he was joyned in the romi;
sioue witb hiit father anno Im* ^} ^^ '^'
Anil tbis being ane aciiooe at his tu-
y unsi him he wouU! iieil
u^dvocat to debaite ^
lu^fjs to be iorarmcii u>
El he was jovned in the i:c'
M.i Uibcr u« Vd Is .4itd that Lv im^^«<
I the second cojjjier jurnay that bcii
^*,„.lud it) parli^-'itt-'i' n,n-^)m ij lit- lii'i n
ftOil abo by a f f ]
iie wuf oil
■ ■ _ ,ii.jo iheyr
lui. VIC, ftiveulie lii^ii be ht«d uti lH.'ne5l no
siiUaiic uor any nf the peimiisits of the Mia
add that tJ)er wa^ no particuUar warrand't'a
uruci?^in£>: him his tna'ties \rarrand nnd uaMij
m^ all the oflioers fif the Mint thai waj'e to hi
perkcwed whtrin he i» not iiiimrd ntiitjh hj||
Icr
ho ]
d»^»('(•l^l \ytituf or aha- the
Whilik ibove WTJttt^o pro*
for tin- *. <iii Mi, James and Arrfdmid
Ooeni iumI reply iibo?e written made tljevto
•insf all at leuth red heard seen and consi-
dered b<: the s'ds lords they hniW aii3V or-
Gained the a'd Mr. James Fah^mcr to produce
the di«|f<i«itiooe ^mnied to biiu by his fall^er
ftod ioatruet tlwa ooeron leof A « also
bel#r a»»*r ortlaijieit Am Icimer to pro-
<tiiM his gifi aad for iL,., > ^ <^'ds lord»
•«ai|ra^ lo tlM saiii Mr. Jar^ r a cor-
UUMda^r now hygainc foi ,. il,* >s.M
^§fmkwne and to iitslruct (he <
tberi>f As also ta pr'Ofluct; ibe s
FftlMMMHTB ^iii wjtb ajl i4h^t wnxu n*? bts rea-
mmm and diOcumeots he lind or would muke
I ol'la ti>« 8'd tnm*r E»o-
lemmtiti the b\\ «. to
I majesties ailviM-at to oh^t-A-l ivuira f.r^idu
Themiiec ihi.^ s'd ttotione and cnofc* bc-
f agaiic cut' ' ,' of the s'ds lor^lii
|iiiVt4«S:i \tirick llomcudvo-
t tor hi« lO.iM. s ,ui' . .1r;-Viirr.1 !t|.'\ m-
aifU Hicliard Uh'I V i:.i ,i>.l .-. • riiiiict
iffOetttJlof the Mini ! vMi^d oi ttta
^muammui with bin t he may be
^od IjrahW 1W all h >i.J iicf^ uMi]
-■^-^-lel maUet-i^jatiiMi^ ^'t ill re-
lobwownolhr _ r in rda*
» to i[ic other otficf p» i*i liw M ml Ami for
lone rttid iiuymcftt of ttk*' ^oomes #f
niony ^ i auiJ re-
•Iwl ih<* »'dg
' *i^ irie ui' LaiiUcj^: li<:r
'^> I j^'ftntrail and • ihe
iyian.ij iiif'ainst the Und .>i.ull;viid an
r ^9t^^ct geucfuU q|* |i|^ M^*^ nugllt
And albvit he wl>.
■i rrsiitlvt-ii 111 urn
bti
nh'r tolI»c lybdlyf
hik ina uc uick Home i
vocal fur I < That albeii 1
ford MuitliiJid li^d ha^iii mm^^r when be Vi%
coiyoyned with hk father in the othce yet I
ou^ht to be lyable for any abuses nnd inalve
SJLtiones committed m that office by the olh^
officers of the Mint f;ceng he >ia« the supiea
otBcer of tiie 1^1 int conjoyurd uirh hi^ tlatbd
and had potier to ixtutroU all the orticers of th
Mint and to hold courts and punish dchnc|oei]
or at^- ■♦ "'m ..(i-.-^ tf iht* 3Jint tbat ha
utal V that he n as [ jjV origl
oin'-. Jlint ritiiouriU'?'irUw
abuses c> '-y t^
lie aught 1^ <|i»ij"
iuto I iii I I rti that tbt?r iiad
no a. I 111 ilw I ^.sumcs committed in
btioiii? iiitrtti And it auy of the othccrs lis
mah^n^ed he as one of the ^eneralls au;j^bt ip
iuuc ptintsheil them wy^ wayes acquautcrd Uis
majestic that ha mi>flit have remhved tit em
from tbtr ofhcc* and repeat-* the lormer grounds
upon wbicli IIk' carle ol L;iuduTdalc hi* ttutier
\ras found ly«hU; to hiiii majesniL' Ami %% htiras
it ik alledfifcd by the lord ftiuitJand that he was
tninor whcu Lc was coojoyntd m il»*i oliioe
aud ih^ he waii ^Mt of the kmifdouic smcu the
ij \n\. vir. viviiaic it IS au^'Vi'd if a mtn
I le coil ! Hi lit ao y ab uii
■ ** his i«morciy will iM>t.
ix huu from ihe refill utiuue
nod incio«tir»- Mi.Umuiii *-*|;«
year
acitM'i
the
the i^rnt
nw.nt!. 1
llltM^
-hii '
fiice wiiti hitf
utHcf^iH tor
vii\»iv4'ttty %>hi<5h
i» i)^
34 CHARLES 11. Proceedi
Act fif matrcrsatiorie as can be for if a mnn ac-
cept of une office cif tnist e«()eciaUy of ^reat
trust as to have inspectione of tlie Mint and
covnailg-e which is of so great a concernmunl
to bis uia*tic and the ^vhollkiagdome and whu
by ibe nature of his office was to redarpiie and
c(>ntir€ill the other oflScei-s and punish them
Ivheo ttw^y committ faults if nny man in such
a trust Should be negleg-ent and Je&ert his office
he aucfht not only to bo lyabl« for these things
tfiat are incumbent to his own office but for the
abuses and mahersations committed by the
other officers under his power and jurisdictiot|e
And albeit ther was no particuilat warrnnd from
his majestic for persewing- the lonl j^laitland
with the oth6r officers of the Mint it does not
import for this beint^ only a process for a ciTell
eflect of the ivstitulione the kin^ adrocat is
sumtiently warranted by vertue of his office to
oersew aU civill actiones whorin the king- may
ne concerned without anie speciali warraud
fVom his niDJeMtie and all that can be alledged
lor the lord Maiiland ,is alrcudy proponed'for
llis fat! I or and repeats the former itJterloqV ag-'t
his father Which suramouds abo?c wriltcn re-
]>eated and insistf^d upon against t!»e lord Mait-
and alleilji^ances proponed for him and ansVs
above wntten made therto being ail at Jenth
read heard seen and consider^ be the sMs
lords And they therwith weill and ryplv ad-
'vysed they ffand that the lortl Maitland being
conjoriietf wiih his ffalher in the commissione
that tiio proccs most also goe one against him
allbogh he declyncs to propone any defence in
tbe cimse And therfor the saids lords admitted
the lybell acfainst him to the said ptrs'rs
"j>rot'atione And for that eflfect assi^ed to his
*liia*tif:s advoc^at and ^ir Patrick Home adroeat
^for his ma'des interest a ccrtaue day now by-
Cfaine And ordained the s'd perscwer to have
Jetters direct at his instance for summondin^of
^auch witness and probatione and alse to pri>ituce
'audi wrttts rig'htB reasones and documents as
•he had or cnuhl wse for proveing^ the points of
4he fors*d lybeli a^^ainsl the s*d day witn certi-
"ftcalione. r. as ane act made be the s'ds lords
' 'pxtant in proces b«ars At and afirr the wbUk
"'ferrae sua assi^^nd the s*d actione und cause
I '"beiniT ng^riine called in nrcsencc of the sMs lords
jkhcsM sifGeorf^e 3I*keazie hisma'iies advo-
[^cat and sir Palntk Home ad?ocat for bis hij^h-
f»es interest ffor proveiniy of the scverall pumts
und articles of the fors*d lybell flbund relevant
' find admitted to his ma*ties prohatiune in
' tnainer ubore ^pc'cifird craved that tbe lords
^iiiijlit LTTint wttrrand for tfun^iiiiiiiMr* <,r i^^
! pa|K.n*s produced !
r i)|iointed hv bts jiut'i <x
.lite Mmt And df; s, und
v^tfirrK f AkpTt hrtbf • "nnpnl
- lords
ine to
1
Lib iiiM uaatiM rciauiu^
lu xuv niitn cuu'
htg9 ugaln$t the Eart of fjiv^t^dale
fiifmc whcrunto tliesM Jan; '
duced the books pnpers and <h ; "*•
inir viz. Imprimis Ane unsitljcijMjtl compt
of copper bearing that the weight T«ist waa
twelve thousand four hUndreih and nynlie
three stoos three pound priutetl value is twd
huodrethnyntie tour thousand four bundreth
fiftie fyye jwund four shillm^ conned Is war-
rand is two bundreth aiitie six thousand fyv a
bundreth and ttrenty ane pound m\ !>hi1liO|^
eight pennies Remedies light is twentie si?en
thousand nyn bundreth thertie four pound
fiiventeen shilling four pennies just balfe m
threttein thousanti nyn bundreth sixtie six
pound fifteen shilfmg four pennies As the »*cl ^
accompt containing ane poscript one the end'
tlierof snbscryved be Alexander Maitlaiid bear--
ing that he being called and cx>mpeirand km*
for tbe committie and interrogat whose haiid
writt the above written account or paper waa
declaired be belives the same to be hand wril*
ing of David Maiiland bis brother bears Item
two leaves toren out of book containing the ac-
compt of the copper coyned in tbe months of
January February IMarch A prill May June
July Se[*terabcr October November and De-
cember Im. vi c. siventy nyn January and Fe*
bruary Ira. v i c, eigbtie subscryved one eteiy
page by Arch bald Falconer Item atae couirt
from the exchequer containing the complnit
charge of bullione arr^sing both upon the ex.
jiort and import of his majestieB kingdotae
siaited tugither with the accounts of the parti-
cull ar ports and precincts and collectors cuuntt
therof both Htted and untitled And also bul-
lione that does arryse from them what they
have payed and what is yet resting both in the
tyme of tbe severall tacksmen and general col-
Icetors betwixt the first of November Im. Wc*
sixtie ane years And the fii-st of November
lm> fie. siventie three perused and calculal by
WiUiam earle of Dundonald twentie fytlh oi'
February im. vie. siventie four And bearing
that the charge of the bullione which the maa-
ter of the Mint hes receaved from the several!
colle<;tors and marcbanls tbe tyme of the ao*
compt eictended to tbe weight of one thotisand
two bundreth fiftie eight stone fourteen [lOutid
one ounce at eleven denire tine and als«» con-
taining the account of discharge And in one
of the articles therof hearing that the a'd air
John Falconer compter discbargefi InmaeUwilh
payeil to my lord Haltou no general I of his ma-
jesties Mint for his fees ordinary und extraor-
dinary being per annum two thousand six bun*
dreth sixiie and one pound siv shdUug right
pennies wherof four nundreth pound per an-
num as the generall halfe of the stock io the
Mint conforme to tbe act of pai i^ a
parte and included in tiie s*d v j lU-rie
which being resting since Decern be i Uu. vie.
sLxtie years he say he payed to hislo'p for
twelve years viz* from December lra« vi c* aix*
tie tilt DHeeml»er Imr vir, Kivf^ntv twf> years
.ih
uuii «;ti^ntif; bix puuuus ocotx money aa ino aM
^miatm
^■^■rita
.a
Bd
2S3j
ond o(krrs,fer Offldal Mahtnationt. A. D. 1688.
[SS*
acciiuiils cpnUiniflg- several uther articles and
iijifin tUeeDdctiriUitning'ane f^H]«ci'i|it siibficr^ved
be Juhr* duke of Lauderdale his ma'ties cnn»-
missiouer for ill e tyrae John earl of Roiht^ss
lord high chancellor aud William earle of Dan-
dofittld lords commissioners of his ma^ties the*
•aiir« And als hy sir John Falconer himsplte
ilatod the 16th day of March l«i. vi c.seavioty
four yeai-s l>eanu^ Ihe s'd acconiit of the charg-e
mid discharge to he examined perused and cal-
culul hy lliem at more lenth bears Item t^f^o
letters siihscrvTed by Arch ha ki Falconer direct
for sir John Falconer one daited the iberleenth
day of August Ini. Tic. seaventle nyn years
and the oy' daited the sixt of September
1 m, f i c. seventie i\y n years I tern ane other mis-
siTe lettei" subsci-yved be Archibdkt Falconer
and Da?id Maitland direct for sir John Falconer
dailed the third day of September Im. vj. c.
seaTiiily nyn years aciiuanting' him that the
dav betbr the lord Holtoun beine" in town gai^e
orjers by Daviil Maitland to taJl to prinling"
^ith all expeditione containing severall other
pur rku Hal's Ittim ane other letter snb5cryved
m Oavid Falconer daited the tenth day of Sep-
tember tra. vie. siventy nyn years 'direct to
sir John Falconer shewing him that Master
Maitland was at the couynzie liouse one S«-
turnduy befor wiio at ther desy re spoke to rniis-
ter Ueightman for furdering- of the work And
that the lord Haltonn was there y ester day a
considerable apace of the tbiicnoon being very
HfiilJ pleased with ther expeditione and con-
tainingf §evei'ttll other particullar* Item ane
unsubscry veil letterfrom my lord Haltoim dait-
ed the eight day of December Im. vie. sea-
vinty nyo ye^T% direct to sir John Falconf?r de-
siring- him,to shew David Maitland his precepts
auil recept given by him for mony giolten since
ther last account and with him to prepair the
iiccornpi for the lord Hattoune to shorten the
lyme which he knew he could not spaire for
o(htT busincs And shewing^ him he rcfen^dto
David Maitland to tell him his thog-btM Item
ane other letter svbscryved by mylond Hattoun
daited the twtlft day of Februarv Im. vi c,
and eightie years direct to sir John falconer de-
siring sir John to shew the bearer thereof not
only his rcceptn but all that he had to say as to
the s'd lord Halionn part of the rxpenu* frreat and
email and leHinif him that he knew the hearer
^as Irn^led hy him And so he lieliooved to
pivpairall the accounts Item ane receipt be
the 8'd Charles Maitland lord Haltoiic daite
the fourih of Jannary im. vi c. siventy nyn
y«ara Wherby he grants him to have re-
^e«?«d from sir John Falconer jtiastcr of the
BUntcomplcit payment of the equnll half of
the protit of alli^pper coyne coyned betwixt
the fors'd day of June Im, vi c. siventy siven
and the first day of Jaunary Im. ?i c. siventic
II vn Item ane other recei*i be the s*d Charles
^Ittitland dated the tivelrt day of May 1680
%vherby he ^ants him to have then and of
befbr to har« rexjeaved full payment ami satis -
tact lone from sir John Falconer master of Ym
ina'tiot Mint of the profite of the but copper
jumey coramensing' from the first of May
Im. vi c. sea?enty seaven years to the oon-
clnsione therof beings the tenth day of Fe-
bruary Im, vi c. ,eii>fhtie years beings the fret
profit of the eoualJ half therof coolorrne to his
majestes gift Item three little papers or g^oe-
rali scroll anent (he divisioneof the copi>er re-
medies Item ane caocelle*! contract betwixt
Charles Maitland of Haltone gcnerall ot the
Mint and fiir John Falconer dated the twentie
ei^ht of March Im, vi c. sevinty s«*avejfi yenri
wherhv the sM gfenerall assigned to the said sir
Mm Fttlroner tlie equall half of the twelve shil-
ling- to been [ail' oriV.] psid in by the marclmnts
for each unceof buliionein place of the said bul-
lione and that of the siyd year viz. from tlte
iirst of February Im. vi c, sivcuty sivcn to the
first of February ]m, vi c. seavinly eight with
all fioumes of mooy that should aryse therby
or should be payeil in place of the bullione for
the s*d year tor payment to the B*d generall of
two thousand marks In lew and satisTiictione of
histrwe and Uw^uir pmfits of luroishing the
s'd hullione and containing' ate diijcharge
upon the back v^^^ »ubscryve<l be the said
Charles Maitland daited the Fourth of J an wary
]m. vi c. siventie nyn wberby he grants hittt
to have receaved Ibll payment of the eonlenls
of the s'd contract as also of the like soume of
two thousand marks for the snbsccpient year
from the first of February Im. vi c. seavinty
eight to the Unit of February Im, vi c, seveinty
nyu conforme to the s'd sir /ohn Falconers banll
ot the daite the Iburth of Aoj^ust lin. vi c*
seavintie siven years Item &ne other receipt
subscryved be the said Charles Maitland
wherby he grants him then and of befor to
have receave<l from the sM sir John Faleonw*
master of hi^ majesties Mint the soume of two
thousand ruarks in full payment of his pairt of
furnishing the half of the bullione not fiayed
in specie by the marchanis at tweUe shilfing
per ounce conforme to the prio'l! act of (iarlia*t
and thai from February to February eonfoi m
to the tbrsM contract and agreement made Iht*
twtxt the said sir John Falconer and him and
acknowledgeing biiii to be ^^atisfied therof to
the Iirst of Fem^ary Im. vi c. .eigiity years
as the s'd receipt bears Item the cojipit! of ane
order snperscryved by Iub ma*tie and sub-
scry ved by . Covealric secretary dated
the twenty seavinth of August Im. vi c-
siventy tyve anthoriKing aiid requiring tb^
wairden of (he Mint in the Towr of Inindon
to deliver ane of the pyls of Scots weights
unto Richard Maitland esqiiir ane of the ge-
nerallfl of the iMint in Scothuitl to becaric<l into
Scotland by the s'd generall and to remain ther
with the otfacers of the Mint in the s'd kingdumc
as the said coppy attested by the said Uichard
ftlaitlaud and bearing the saraen to have been
compaired with the originall which wits given
to him by master Slin^j:sby master of the Mint
of In gland and which attestatione is daited the
fourth of February Im. vi c, eighlie two years
item ane coppy of the comparisone of the Scots
and English weights from great lo smftU Item
i
133]
34 CHARIja n, Pr&miinfriif:mntke Earl of Laudtrdafe
riuary 1m. vie. sciTinty nyr. till the tcnUi
Fehniary Im. vie. vighlie ycfti's. llcrtrauM
abievial of Ums huUione furtrt of the bofiki4»|
exchequer from November Im. vie. sixiie aoi
^1 Ni^v.-^iMhvr im. vie, eightie yenrn Item im
t of the cuynie houw ooiit^tiii
Thomas Achisone tntWler coy
lIie«*<IChir1ea MaitUiiH htscloimeanenthifl pre*
te&Lioni iti lurnt^hm^ the halfof the billione con-
iMniag tlic tlrpuciitions of mr John Fulconer
Anshmld Falconer and Jatnes Funjuar one the
cud And back therof laJcen by the commi&sion |
appointed hy his maje^tie for tJie Mint with sir i
Joiio Falconer bis ans'rs therto and reply for '
the said lord Haltoae aud Richard Mitland lord i both charge and d i sch arcf c from the sea vinUi da/
juMiee clerk to the said aos'rs coutainin^ the • of Aprill Jfu. vt c. eig£tie two to the Brsl of
depoflNione of »jr John Falconer sir WiThatn LAugitbt Im. vi c. and wis. * yoirs Iteai Iht
8war(i and Jamea Farf]uar on the end therof I count and rc^^ester of the silver called ttie four
lakea by the s^d commisfiioners tor the fiitat ' mark pea^^es tu'o mark {^mcta and half marll
Ifeno ane onier or precept snhscry ved by his peices past his uiajesiUes irons Inioi the tw«iitie
majestie and inhscryved by John earle of Lau- jtwoday of July inclusive Im. vir
derdale aetTeiary daited the iourth of June the fourth day of Doceiuher lii
Im, ri. c si xtie three vears requiring the Ui^'r ^ three liem arte account oft-:
prin'll thea'r deput antJ collector of hh niaje«>tie8 | majesties irons from the seaviiii
eitcyfO to pay to tkie iM Charles Maitland of | Itu. vi c. stventy tour to the ti4i.»..,.. ..... ,. .*
UaJtone or any liaveing hti order four htm- i Decemher Itn. vie. oiglitie aue yeara Jtiniiauf
dreth and thertcen pounds sterJin^ a^ certain I account of stiver past his majcatit^ iv.iu. tmra
bygone tees rosittij^f to him as genera) 1 of the the seavinth of A^irill lui* vio. sevir *
jiiat of Scotland ami that out of tlie first nod the twentie ane of October Im* vie. < ^ ^ ^
readiest excysie ot' this kiuf^dome with the lord with ane pa^^e conUtiuiug aoeaccoatu ot kt^v
Ballanden Ijia onler one the back theiof to I coyned in Dect^ruher Im. vt c. ei^^hty mm
Tlkomas Moncrie/ffor paymetit of the s*d four ' nuary February aud May Im. vie. f;i|pblU
iiundrelh and therteeo pounds sterling And Togither with ane leaff ofpii[KT cMintainMr
the a^d Charles Maitland his diiichar(^e daiteil aceount o)' silver past his luaHieiy irans* ftt^
the fvfth of Juni. im. vi c. sixtie four years j eight day of May Im. vie. ei^htie t«ro lo
g'rantingf the recept of the a'd soiime from the < fourth of Augusit the said year Itt^n
Lid lord Ballandeii lord tht^^r deput for the
tyme Item ane nmtuall discbarge betwixt
Ckarlea Maiiland of Hat tone genera 1 1 of the
Mint and sir John Falconer raaister daiied the
iwentie right ol' iVIanh Irn. vi c. seaventy sea-
veD ll^m ftiie caiicelled ticket granted he sir
John FjuMiiuT tn tlie s'd Charles! Maitlaod
(therin drRisrn*^! lord thcsVdepul) dmted the
tbird dny of A{>rill Im. tic. sireutie&iven years
ibr imvtiieat of six hundrcth pound sterling
viz. t^ie one halie at Lambas and the other half
at CandUmiss therafler coniaiuing sir John
Falconer's oath one the hack tberot taken befor
the commissioner!* tor examining the mint
Item tMro unxubacryved occorapts of debitor and
creilitour betwixt the getienills and minster of
Ibe iVIintthe one daited the first day of January
lia, vie. atiemie nyn and the other the fir«it day
«f Auguat Im. vi<v srventie nyn years item
aie oaoeelied band ir ran ted bo sir Jo tin Fal-
coner to i'ii ?"-!'- ^JaiUaoil of Haltone liaittnl the
fourth « Im. vi r. j^ivenue n\ n for the
fouuie < : . ^our tlwusmid itiarkM of prin-
cipal! pnyabie hr followes viz. fourteen thou-
•and iMArki at Caudlmis tm* vi c« fitvcnty nyu
SHecfi thousand itierks at W hitaunday Iher-
er and other fyfteifffl thuusiand flterks at
lianih<ii 4h«failer with a thousand p^tuids lor
«ftoli tenii^ UlilsBi^ and a'rent after ihe rex^v«
termes «:r iitiierol'. To which baud air
Williaii id David lV);iiiland orcaub-
acryvein^ tvunr^ses Item ane accnunt of
eofipiT coyu jittoed 9ii*i abbrcvialeil rrtim tht-
ffiix ive hooks of huyiug and working till the
Irvt ol' Jafiuary Im. vtc. seaventy uynMuixt
ik« l«fd UMhuaa and air J«.hn Fair- ■ ttb-
•or^fcd IliM aiMoibrr uniiub«.r, nut
] (jTom tht .^,, * Ja*
count of bullrone containing thecom|i
of hnUiouearrysing both u^ion the ex
imtiort of the kiogdome of Scotlaud al
git her with a psM'ticulJar account of the pi
and parts and collectors accounts tUei
tilted ai^i uplirted Aud alse hulliane ^^1
arry <k' from them what they have pay eil and
i& yet rpfiting both in iheVvme of I lie aeruenSH i
tacksi tic n anil general I ctd Wrtorv i . ^ fittl
of NoreniWr Im. vie. slxtiecnt iMtef
September Im, vi c. atreutie three wiUi the
counts of diihcharge therof fitted and suUscry v^
be John duke of Lau»lerdab hus tiioj«^i
eommie»io(H<r lor the tvme John dulu:
liothes tonl high chanoellor aod Wilhata
of Dundonald couuai«siouerH of his mi '
the«'rie Item ane book of accounts an(
bulhone containitig charge and discharge
January Im, vi c. scvrnty tour to Nov<
Im. vi c.seviuty fyvc Iti^iu aoe other book
r.iMnU infant tbeGullio' '^ />.,.t »,ri,n-r r "
I um the lit
' ^t^fu to Au^ . ......
lic^u tun abri'viats of the biiUiOine ai
from NovembtT Im. vi c. sixtie ane to N^
her lm» vie, eighlie ane years Item
meltiug rcge)»ter begitmingthe letitii nf
nuary Im. vi c. siveuty three years a;
the luurt of Oeceml*er Jm. vie. Rtv-
Item ane ju ma II book of silver ^
ning (he twoniie ftixi of March
new meitif^ jru
of February Jiu.
md Qtherijor OfflHal Malver§aHon§^
I cndiiig tlie Itrente ^ay of October Ini. vie.
' I fttie yeM%, }|rtii aue ntdtitig book be-
nog the twentiu sixt of Anrill Im. vie.
btie I wo jenn and eoding the lUird day oJ
|tisl Jni* tic. dghtietwo years Item me
ount of copper r»r9cc4*dinu: the twenty ti&;t
>e«3embt^ Im. %ic. sixtie three Item ac-
i tlicrof from tlie tweutie mghl of the s'd
Oi0eiQber to the ci|^bi«n of Apnll y 'after
acoottot ot' the sante from theoce
I of Au^pifft ibcraftcr Item an-
copper frora thenee to the. twentie of
oljtf tiierdter Item account of the same
I iheoce tiU the ivrentie ane of December
tlierafter Item ane account theroffi'oni thence
to tbiL' fvfiopn of March y 'after Item ane ac-
eoi I 1 1 ood thence to the first of October
^kv in ane account theroftroTii iheoce
^Bptto Hni of Janimry y'efter Item ane &c-
P^pnt therof froiii ihrttcetn thi-'fyfteeti ol Apnll
> llieriiflir Item atrtuiunt therof trom tbLmce to
the iii'Rt of Aprile y*efter l»era ane account
theniffrom thence to the four tccij of Novem-
ber thrreiW hem one account Iherof frt>m
Ihenoa to the twtoue thml of Apriii thcralt^^r
Item aoe account iherof from thmce to the
twenlie of June therafter Itcio ane account
theruf from thence till ttie thertoen of i^*pt<?ra-
ber thcratUr Item ane account tb^^rot from
llmoci lUl llie fifvt of Doc^mber y'etler I teen
I Maaoaottal tken>f from thence tUitlie fyfte«ti
of January thcral^er Item ane ac^^ount therof
frooi thtHioe till the fir^t of March therafter
l4«n ane aocount therof from tlience till the
first of May therafter Item ane account from
tbencetill the tii-stof June y'efter Item ane
account tbei of from thence till the first of June
theratter Item accuuut therof from thence
tiU the i'lrtt of JuUy tberaller Item account
thenif fnim thence 'till the siferiteeo of Jully
im. rte. M%%y et^ht years Item a cancelied
^<>T.*^,... k. t.. ,. ♦ u,^r jofin Falconer liaiUie John
H talbretfa dailed laal of March
Ijii. set'io item ane canoeMed
«ooi 11 1 It I ihe said sir Jaho and John
Cotii^ |.rr,, -r ,ji MontroB and James Mures
datefi the iwentie eight of January Im. tI c«
•aaTtnty nyne Item ane other cancelled con-
tra43t betiPviVt the said air John and Darid
I^'-iiitdaitidtba ^y^'
vie. niventie cjf lit all anent ' ' va
ae4V)4int of depursment* iti of
new uitll arvil lbr;<iti(; the M
lourtewtih of Jolly tm. vic
n ane IkniIc coaceniin^ the Mnn nt^i^MiuPi^
ttnt ef March im. li c. siveaty sii^ Itevo
other book cm" •-
tent of Nov I
n ttiie other in?./.. .
miHg m Jmmary i*
TlMi ane <ilh<tr book i
^^iMUg in D<M?embcr lin
lliin ane other book concert
nki^ ill K«4iruary Im. ti«;. aivuity nyne
unv ac^iunt of oop|K!r bo uglit from and
tl*a Arst of Jaauary Ini. vie* mtmdkt
, $tgst aadkg ta i^i^atDbar .ihf raHar llrm ane
lie Miot be^hiBing
▼i c. scvuity six
'iiLj flir» >linV ba-
y ei^t
ty dffht
afiieba«
accHint of the cuynzie bouse majde be John ]
Fak'oncr master tlierof betwixt the first of 1
June* Im* ri c. threcie nyne and the ttiird of]
Aprill )m. vi c. fourtie ane Item ane printing 4
hook of the Mint beginnitipf the last day ti#1
Jully im. vi c, sixti«s lhpe« and ending- in (
Julty Im. ri c. iiixtie ei^ht Item sue account of |
th(^ counxiehonse made be George Foultf f
master coynzitr be|^inning the first of Juti^sl
im. vie* and e leaven and endinyf the ilr^f
of May Im. vie. aiul ihertecn llera ane 1
anent ihe gold and silver of the Mint frae tht |
ftret of February Im. vie fyil'M?n years to tUm \
first of Jully Im. vie. and sixteen 'years Item
ane other book therof from the t^ventie hiventb
of March im. vicei^hteenlotlie first of Miucb
Im. vie. and twentie years hem ane others
book concerning the same fr*>m the twentie of]
March Im. vir« sud twentieiwo years till th« *
twentie t^vo of March Im. vie* and twnntie four ^
Item one other book coucemini; the samt i
fVom theei^htof Aprill Im. %ie. l*venty fbuf '
till the nyiit of May Im. vi o. siventie Mvea
(tern ane other eonceming the same from th# J
first of H*fpttn>ber Im. vie. and ten till th«
tenth of February Im. vi c, and eleaven Item j
ane other concerning^ the snrae from August i
Im. vie. ihretre four till November Im. via
thfetie four Item ano other ooncemtng tb«l
some from Jully twentie siveo to Ucoembtst 1
Im. ?i c. and thrttie four years Item the depo«
sitiones of ArchbaUl Falconer counter wairden^
AlexHndcr Mailland ane of the wairdens Davij
Maitland deput to the lord Halton in the Mint I
Mr. Henry Ahvinessey master^ John Falcouei
laite wairdeo air John Falconer Jame^ Farnuaf
sen iter to the lord Ilaltooe Adam Foulis dark
of the bullione Hugh Steviastoo tvritfer Mr*
James Falconer eldest laufii 11 son to the deceisi
John Fatrooer late wair' ^ yi -- fn^dp
smith in the Mtot Pstri' or t»
sir John Falconer Thoiniis ;u.,,,-> nuilt^r in
the Mint Walter RlitcheU cutter in the Mini
Thomas Ash only melter in the I^titit Thomaa
Aislie one of Ihe eertantsof tliemdriug house
taken bet or the connmieaionerH apfKunti^d by big
majestie ibr examining of the litate of the Mint
Thertifterthe said sir George M'kenzie his ma«
jesties adi^ooat and tir Pntrirk Home advocat
for lii^ hi^hnc*R inlere*t dodaired they re{)eated
the compts eompt books bonds ticket^: recq»tf
and other writts above montiooed and deposl*
rsijHses aAiave iiamcHl taken be-
'jnern
i>i iuf I fjMirs f»f the
proveing the articles of the lyb<*ll abofe
written found relevr^ti* "»•■' « "-v^ts-d to ther
probfttioiie And for »,r the lorda
as to the f<*rs*d six 1 . . , .atl sterlmi^
E'veii as a bud or brjb to the tmid ^arle of
luderdale by the sM sir John Fslcooet
to \:^ his accottats allowed by the lords Oilf tha >
theVite and eibohequer and pav<D<?nt of his yni*
iifst ballaace Iroin \m mfj^vtie crdved tbatflr>
WdliacB Sharp ef Hi,<>niehill laie cash keeper
who 4vaa prcaent at the coiooaing betwixt tb«
aark atid air John and a subafiry ving vtiluei ia*
> appoiaAed for exsrntoiiig
Mint now prod u ceil tor
ti>e ticket g^rante*! by sir JoUn mi^bt be exa-
tnineJ therHneat Whicb desire oi his nm'iiest
mdvi^oiil bdnt,^ consideretl be tlie sMs lurds ihej
ordauiied air William Sharp to. be exiimiDed
i4(M>n the potnis above riientionecl and alse tbe
b&iil p«raoni« above named i^rho formerly bad
detioiied U» be re- exam ioed in presence of llie
i^u lonia upou tbe pouits ^vberupon tbey
formerly deponed and granted warrand lo
citt tiieiii all to tiiai effect And accord*
ingly the sM sir WiUiara Sharp and baill
persooes abovenuraed who formerly deponed
|>em^ uU law'ilie snmoiid and the b'^s'*' ^Vil-
bum Sharp btiii^ pei'soually presL-nt soieiiinly
r»orn and exQiuiiied u\Hm ihe points above
iirilten deponed ami declairc'd as hisj oath and
dejKMiitioae stibscry veil *vttb bis hand extant in
pruces bi'iii'S Aud aUe the said Arcbbald
Falconer and Alex'r and David Maidands Mr.
Henry Alcorn sir John Falconer James Fi*r-
qnor 3li* James Falconer Henry Lucar Patrick
Oj»:dvie Tbotnas 3Iurray Walter Mitchell and
Thomaii Asb being: all personally present so-
leninly sworn and examined iJk ane aiWr ane
©iher ui>on what ihey bade been formerly in*
teiTOgat and deponed befor the s'ds coiunii^*
iiotiers af^pointed ibr examinalione of tbe slate
pf tlie iViint Tbey adhered ail of them to tber
fonner defiositioncs and depon^ and declared
fts iher hWs oaths and dqiositiones extant in
proces beai*s Ther.iiter tbe s*d actione and
cause b^rin^ againe called in presence of tbe
i'ds lords and the s*ds Charles earle of Lan-
derdule Richard lonl Alaitland sir John Mr.
James and ArchbakI Falconers defenders ther
pro'm abovenumed rex^ive being oil tymes
«»Jkd requiixid and wr]^ by ane macer at tbe
-k«| M vse is to exhibit and produce in pre-
gHotlkf tbe s'ds lorda all tbe writt^ and proba-
tione they bad for proveing tbe points of the
act above written admitted to tbe proUatione
and allowed to be proven and instvncted by
tliera in mainer above specLftcd and to salisfie
the points of tbe K'd act as to ther pairts
And lykwayes Ihe sM Mr. James Falconer
for btmselfe and as pro'r for Aircbbald Falconer
being oft tymes called i-eqnired and wi-gtd to
produce the dispositione alledged upon granted
by bis tftther to him witlx tbe sM Archbald
J^alconer bis gift and lo satisfietbe other points
of ihc s*d act They and ilk ane of them iail-
xted and sucoumed in doeinj^ tberof aj» was
Weill known lo tbe s'ds lords and therfi>r tiiev
circumdnccd tbe terme against all of tlie a*d8
defenders Tberetkr llie s'ds lords baveing all
at leoih read licard seen and considered tbe
tbrsM lybellcHl summonds and points and arti-
cle* tb«froff«nmd relevatit and admiUed to bis
jp, ' ; ' * ne compts compl
\^^,, IS bftnds tickets re-
^^., n«' T^roduced and
,1^1 i named pro-
,^,, r iiinkveing of
l|], >iimonds
• ti And
ll, . uith the whtts
all :i- the dd'crs Weill
^^^H
t
wg00gSmn
and ry ply adf ised The a'ds lord^ fland tt proven J
that Charles cairle of I^auderdale juit; of the
generalls of tbe Mint did take up tbe acccmipu
of tbe LO[»per jurnay* from the wairdeni* and
that tbey war destroyed and that tlicr bein^
a stop put to the coynadge of tli<
year 1 m. vi c. siventic nyn tbe it i ■
uy tbe counsrll fiir tbe second juiu
exceeded that by bis ordor and wj«r
officers of the Mint proceeded ui th^
of more copper then was allowed by
rands And that be got the graitest Kham ui
the profits of the copper coyoa and that thcr
was tlnee tbou«»nd nyn hundretb ti> f '^' "^^
stone coy ncd alter Ihe act of the in
and that he did not imptoy the st«>ok .
tliousand marks ap| pointed by thi
ing of bullioiie AH)eit the earl a . ^ i
receavcd payfuent and allowance of the a'ntut
of Ibe sM Block of bullioneas iKit bad been iai*_
pktyed and that be was a sharer of the
mcdes of tbe silver coyne and that the dean <
Guilds weights ware made use of in the Miall
for receaving of tbe ballione And that
mony was troned by tbe fraction i'
weights and that when the \m
justed to tbe Scots pyle afte*' the hcins sia
weight was intimalto tlie officers of the J
the earle caused debver u: '
wairdens and to sett by th
and caused sett a new sett ul ^. v .^ .ii.> .-,,jk.^.v., 14 ,
tbe dean of Guilds weights couforin io whtcli 1
tbey did then work till the end <»f Jatitmnr 1
Im. vie. eightictwo years And that hi^ 1
to cause essey the chisel I beads swcps .i
and to see that tlie mony csscyed and covtiji.l
ed was of just weight and fyniie^ And albei^l
be did know the counterwairden did not atll
his oiSce yet be did not cbalcoge him for it i
neglectecf to hold compt and to pmiish the
ficers of the Mint for tbe ne{>lett and malve
sationes in ther office which the tm^
nerall of the Mint was impowred to tJ
comissione and Hbiid as to the lord .uamnTii
conjunct generall with bis father that be 4
clame given in to sir John Falconer he re(]uir<
ed fi^m sir John tbe master a i^haire of IlK
probts of tbe twelve sbilling tiT>oii tlu^ ^titcc^i
bullione and of the profits of tl^
tbe weights and of the profits ot 1
money And that albeit bis majesbe graiiM
warrand to the maistcr of the Mint at the Ta
of Londoue to delifer a pyll of weight to tli^
lord Maitland as ane of the general :«t of ; '
Mint of Scotland to be caned to Scotland 1
warand was daited in August inu vi c si^
fyife And accordingly the lord^i^laillaij
receave and brnig down the p> II ot' wci^'
be made u*(e ol in the Mint of Scotland
notwithstanding it was keepcd up and aevf
intiniQl to the otiicers of the ^1'
wse of till February ini, vi t \t
And when the weights formeii. 1 . ui« i
ware reduced to the Scots pyll tbey lieinff
again changed tbe oHicers ot Uie Mint dii
make use of the dean of Guilds weigltti) cmb*
forme to whicb tbey wrought till ibe 4Ui4
aa^K
4&^^^
and otheri.fnT'OfficM Matvertaii&nt.
A*D, iSse.
im.
i
th(.
ilia the
Ilowui
my WHS Koynctl m;
D«l the monv nlir
low i'
red fjy lii'V ^\:j]*,;;ni!
Actiner tluT o\d v
ftftis f)f I lie If
Urtk-ii^ ni"*
t aiitl iivA.
two yrtiT^ ftrifl that
,,dto
■ hicU lie
ic Ami
Tcr late
(>l»ertht?
•la
ami th^i he
i the remedieB
(iMi (jinteanil that
en And the lonl%
. that tlipy went one in
r allcr <!ie (juniititie al-
.a
1 ^Ot a
iy John
luff r of ihe
ita*l that the
, ^ i' the remc-
llir
h] ill.
sheer tlicm tioim ami to brini^^ them to the
die niut so ubvnyr? inuif il the ]»eic«iin-
kIv npoi» • - to the
k*hMtt ihr ! reoync
lords (lu.iJ lh4.L ihiii: \mx.» sivrtifceii
sloiie of co|iJier coyiied the lir«t
f jumiiy hcginninj;' i
hu Im. vie, sialic sine
! firtit day of Aufijujit im.
And that ihrr was fourkcn
fUy of
li,.
•433 twelve thou-
id I'.
^yo«d the vecaod ct)f»|i(fT
> first day of INUy lin.
E and 4;ndine^ thctrui day of t'eb. Im, vic»
title years atid thnt thtT wa» iiyn thnu-
kl fyur himrh* MireeHloiiif coy»ied
> jwTOod copjH I i jf ri<ii' wa« Hllowcd
|t the warrands^ mLchi^ iher wiik tliref» ihoii-
1 nyn liundrt*th nvntie nvn stone otirnoimrl
>iiu limt
Ctrl of
...r .1...
and fonr pound and for the three thonsand DyKl
hiindretb nyntie nyn stone coyned aiuce tj»«j
»c» of Htdernnitte \i thretie two shiUing th«;|
' !uas9 and hody of the coppej* not I
] atnoutils to th^t flotiiite of aiie hoi]
drt II iinij two t'l ' ' iMiudrcth nyn(i#J
eight iKtund c'l is luony AnM
as to the seconii sinn le yiu m til*? ttvrlf'ethilUnf 1
upon the ounce of hidhonc niid eight uKiolttf
.n/.ni the profit* nrrysing' to the kinjj hy
ne plven in to the officers of the Min
!tn<i not coyned The lords remilts these
the lord thcsV the otHcers of th^l
1,' regullarly and in course ly able till
coujpt to the lord thesanrer for the same
as i%t the third article anent thr- prf>ftt of tin
d hf\
.ithiit]
pn ilie pound whu'li ior 'i thon-
tid f^toDe coynrd mor^> thi ued by
UHfrandn thu firpt cojjptr jiirnay will
fcfiitn* ff» thf *<»*wrnr nf f^ro hnnfJrHfi n.nd
ue
^'iicil m»iT then [^ alJtu^ cd by tiic wiutiumIh
? second chopper jumav befor the act of in-
* SHl that natne nuta nill nnionnl to the
if d]^hiy st¥cm thousnnd nvn hundr^ih
stock of iwenlie thousand mar!
the UirT lor buying- of bullion \
t 11 and master of t)ie iMiat did uc
lid allowance of the soume of twelve
initi'iH til inni'ks as the a*rent of the fa
twenljc thousand marks yearly albi^itthestockJ
was uot ioiployed for buying uf bullion tis wakl
appointed by ihe Vtag and therfor ffand lh«
Iftite generall and master are h -^i '■' ■ .f/i /i|^
iottdum vise* the carle of Laud jfe-
Jieratl froai tbi' Vijulm vir . ibat
'•'^tC ioiutti ■ . ^ ,11* \.')l!i!- Ill v\\\' nr-
dmury anuall of the sani a' rent iwtmnc tianiui\
fr(»ni the ye*ir \m. vi c, sivtie two to the year "
liij. TIC, ti^bue lhri;e hem;^ twentie ycari j
which cxtf ud^i in all to tlie st>uine of twentie.n
iyrv thou:>4aid and six* hundreth nouud Scol*ft
niuny Ami cir John Falconer fuite nmftI^r I
from the tyme of his entrie to the said uftic« \
Avhich was the firstof Januarv Im, %ic. ^e*
• ' " -' ' " tidn
-^-« ■-' a >io..,.-. . ,,...,,.,.., (he
printing hook^ that tlie officers of thrMint*
Inn 1 1 February Im. vie. siventiefour to Au-
Jin. vie, ciifhlie two hare alwayci
^ >1 Ivelow the standert some iit ten denir^
tivititic twii g^raiti^ »oiiie lyniea at ten denir ,
Jtrcnlie three jnrrains which bein^ all exactly
calculat at the rexUve finnea upon the bullions
cnyned within ihut tytne amounts to the t^tnimo
of nvn tbouwtod lyve hundreth ihre'iij two
pound four pennies niony forsnid Ami as la
the ^bfiharticU* anentihe 1^ tjout *
e<bfv ffanrl it proven that A\*
heads sweeps aod Hciaps^ w-.hv mrum :uhm<t
Iher was no cssey taken and tfnnd bo the mi It-
''"" * L- •' ' :...,..,,;.. ,,t itifj chisell heads
1 and coyned front
: 1.^. , , ., , . Ini. %i e, sivcnlie
three to the first day of DeeeniWr Im. /ic,
etMiitit^ t\v<i (the former meltinff' books being'
« iterids to four hundreth si^iii* uyu
N ii pound IhiTteen ounc e** Aod ffand
thai thiT ^va« a hundreth and cij^htietwo stone
two wuces Tipd limr drop* coyne4 snicc the
act of iitdetutMlv and that the value of tlie
stone v'ot is efeven hundreth eig'lttie four
nsarks %\\ slulliii;^ rip;hl prnnirs which for the
firf^Uid himdrtth e};^htic tvtru i^toac two ouncofl
* it
S4S]
34CHAltLBS 11. ihwoMiimgi9gaintiaeEm1^LmamUk,i^e.l9tA
undl fbur drops coined since tlie act of inden*
oitie amounts to tbc soume of ane liinidFHli
Iburtie three thonsand siveu liimdreth twentie
-fliz pound mony fbrsaid And as to the sixt ar-
ticle anent the 'difference of the weights from
the Si*ut8 pyll iimd it proven that the officers
of the Mint did make use of the dean of Galds
"vi-eigphts in rcceaveing of the bulUone and that
they troiie<l the i>eaces by the fractious of the
kiocfs weights and ffand it proven that the dean
4if Guilds weights are heavier then the Scots
fiyle two unces and eight drop upon the stone
which after deductione of what waa coyued
•f dollars and doucat donns these not being al-
lowed for hullione that the difference ot the
weights from the first day of September Im.
▼i c. siventic three till the first day of Septem-
ber Im. vi c. eightie two amounts to the
■oume of fyve thousand three hundreth eightie
«iz pound mony fursaid And as to the siveuth
article anent theescaltatione mony ffand it proven
J»y the printing books that the qnantitie of but- ,
Jkine payed in upon the kin^ aooompt and
Qoyned since the daite of the oounsills pro-
clomatione in March Im. vi c. eightie ane
was threa hundred and therteen stons six
pounds six unces tyfteen drop which at eleven
pundreth eighty four marks six shilling eight
pennies the stone t}ie exaltatioue being fyve per
cent extends to twelve thousand three hundreth
vixtie eight pound therteen shilling four pen-
nies And haveing ordained sir John Falconer
and Archbald Falconers to depon anent the
f]uantitie of the buUioneand coyned mony that
was lying by them the tyme ot the exaltatioue
and accordingly sir John Falconer and Arch-
bald Falconer having deponed ffund that thcr
was thretie one stone one ]x:und therteen
iioces four denires of bulUone and current
mony lying by them the tyme of the exalta'ne
which at the forsaid ruite of eleven hundreth
and eightie four marks six hhilling eight pen-
nies u|>on the stone extends to twelve hundreth
twentie eight |K>unds tlicrteen shilling four pen-
nies Scots mony And as to the nynt article
anent the melting doun of the dollers and
doucat douns ffand be the melting books from
the siventh day of January Im. vi c. seavinty
three to the first day ot January Im. vi c.
eightie two that thcr was two hundred eightieaue
atone twelve pounds fy tteen ounces ten drop of
dollors and doucat douns melted doun the tyme
ibrsaid which not being allowed as hullione at
twelve shilhng upon the ounce amounts to the
Boume of fuurtie three thousand two hundreth
eighiie six pound Diooy iurs'd And as to the tent
article anent the earie of Lauderdaldi neeaF-
rog double payment of four tbonsand and ava
hundreth pound tor three vean saHarie lybdM
fiand thesamen proven be the earlei recept
to tiie kvd BaUanden upon his miyesftieB fni^
cept hi the year lm» vi c. sixte fiwr and tha
fourth articlo of sir John Falconers ooBDjpt df
bnllione fitted be the commissioners or tba
thes*rie in the year Im. vi c. siventy four an4
commissioneri
ty four an4
therfor fland h'im lyable to refoond the Hid
soume and tlie value of the ordinar a'rcm
therof flomiN^ c/fimnifrora the tyme of the kft
payrqent made by sir John Falconer which wis
at Martimass Im. vi c. aevinty two which ia
haill extends to the soume of sivea thooaaad
nyn htmdreth twentie ane pounds ten rinlliiy
Scots And as to the eleventh article anent tfaa
band of six hundred pounds granted be sr
John Falconer to the earie to ^ his cooali
allowed The lords in reaard of the retired
ticket produced the mutual! discharge betwiit
tlie carle and sir John daited tlie twentie eight
of March im. vi c. siventie siven the cnnatt
account betwixt them and the other prphatieaii
adduced as to that article finds that the fofaiid
band of six hundred pounds sterling' is pt^
suraed to have been given for the said caaaa
and so is the kings mony And therfer decemnl
the earle to refound the same with the value flf
the ordinary a'rent y*of nomine dmmni fnm tin
first of January Im. vi c. siventy njme to thi
first ot January Im. vi c. eightie three cstn^
ing in all to the soome of eight thousand ava
hundreth and twentie eight pounds SootniuiM
betbr extracting the decrcit the earie can om^
descend and instruct tiutf the fors'd ticket na
granted tor ane wy' cause then that oanda-
scondeil one in the ly bell And as to the twdft
article ttand it proven that the offioera irf* tin
Mint wTOught industriously upon the reaaediii
of weight and ffand these reniedies at a -ffdl
in the mark peice of mony coyned ainca thi
first day of September 1 m. Vi c. eightie two dM
amount to six thousand six hundred pouaA
mony tbrs'd In respect wherof awl that atmr
befor the extracting therof the s'd earia ef
Lauderdale did not condescend nor instruct tiMK
the tbrs'd ticket of six hundred pound i
was granted for ane other cause then thi
descended and in the lybell The m
^ave and pronounced tlicr decreet and i
in the s'd matter decerning ordaining a
and declainng in mancr above writtea and m^
duins letters of homing one f^'tleen dayeaiMl
necessar to be direct heimpon dec. Jta^
tractum, 6gc Da. itecBOL
9i5i] Ih-ocMfirngM^gtimsi ifeXoitirJktAtrr Afoi. A, Di iSSI.
[31«
330. Proceedings against Several Pirsdks of Lai^ebkrhire, foi
Treason: 33 Charles IL a.b. 16^1* [Now first printeil
frooi the Records of Justiciary at Edinburgh.]
li* JusTTciJiaiJCt 8. D. N. Reips te»U ta
l^etono Biirgi de £diQl»irfh decimo
quurto die meniiis Marti i, 1681, per bono-
rubibs viros WtiieknuA Comiteni de
Qudnibenj, Jmg^9nmm Geoeraloro,
Mileliiiiitni MaitlMd dft Duddop Jus-
ticiarie Clef team, JUeiimi Ilominutn dc
Nairne, Duininos JfteotMiiD Foutis de
JDaftdem BttMiMir de Fcirret,
Faksooftr im Nswtoun, et Ho-
Jtmni Uo^ediellsrcarsc CMnmufitoDiirius
uukiftm dictii 8^ D. N. lAiifts.
Curia Lg^itimc aiGrinata*
L HE sAid day aneiil our soveraigne lordfc
«^imiiisil letters of treaaoa, raised, uised an4
^xciit, at tUe instance of sir Gwr^e M^keo^ie
of Roselmiigh, his majesties advocat, for h}%
♦ " ilarch 17 & 18, 168 L At Cnminal
C^urt the beritora of Clidcsdale who were m
the rebellion at Bothwelbriit^e in 1679 beiug
upoQ the (laniiel ; U was aUedg'e^l for Gada
tiaiuiUoH of Uitl, SOD to Itaplocb, absent, that
be cunlit not he dechvred fui^itire fwhat needs
they IjijIi Uv declared fui,auve, ami a sentence
of fortWkuie Jikevv:^ys he pronouivced oi^ainst
them ? mij^ht uol ttie last serve for both t) be-
eause liavinir beeo in prison, tbe privy council
liad »t'l iiiiu at liberty, to appear at a day not
yet come. The J ustieiars found, notwith^and-
ing of ihaA bond, that he ought to have apnear*
eQ before tbeni in i his court. 2do, aUeclped,
He was iUegaily suinmone<l at his dwelling-
liDUse of Hm ; whei-eas forty days before ttiat
his wile and fari*ily dwelt at Slratliaren, Aa-
•wersd by tbe kiii|^'a advocate, that no defie ace
mtmU hm |if«poiie<& for an ahf>ent irattoi*.
, tbe ^rty days were intrudiieed in lii-
r of ]Mtf«ii£rs, that if a man hnd suyed 40
I HI m place, ihougb it was tu9t bia c«sidei»ee
I daiBtcil.^ yet tbe pana^r Mii^kt mmtteen
I til ere, it lonndio^ cam^eniittm/ofimnimsi
Wlm ; b«it not vice verutt ibai a ciialiKMi Miould
hm uida^fui ii' b^s wetc 40 daya abaeia4 1'roiM his
mnt bouse : ** Tbe ciiraitiAl lords ibiMvd no
I drfmrr could be propuiieJ for a tniiloif u&Jess
■■jiMro powQikt/' Home tbou^'bi this hurd,
Mmnig itmnifh vo casAAt defend in cauiOy yet I
f My |if9fa>nia * pcoliniiileixi rationein et causa m
* abnenLa^' aA esai»BGBie of &ickn(:!j8« or stky that
Ii« m ab««tH * ntipytiiqc'eamiia,' or nut at aH
li«wl» broiiod UlegaU^ at the wroci^
Olid not te bt cited at all, are e^^ulpiiiiiaut.
** ^uwrtlur* ifa creditor oft he rebisia, whose
Mi^ m Micwalvrnned, oiay appear tbr an afaseDt
trwutM^ aikd pcodure his interest, * vid^ns rem
* atiaaa igi,^ so tbdii be may lose bi& rosney ;
ml ii' be will bo adauMed ti* objed agiim^ llie
tb«r, Lhivid €»ibscm thar, Doiid Robieson tliOF^
caUed Pocsio, James B^natttyno, wrifbt i
! Jaines Park, weai er tber, J«>bii Stinp&, mo
ther, J>avid Weir ther, aire to Htij|(b Wt
titer, Liu|()i Iker, son lo WiUiana Ker, in
I rtioakl, Tbomas logbs, sboeroaker in Lanork
Robert Haddowc, younjj^er tberof, Mr. "
filoek, of Silvertounhill, John Bttekle^younifer^l
iHgbnes enterest. a^^imaat Mno WilvDn, wroii
ter in LAoerkf and beriior of 0laiiiiepatJi : Bird
Thomas Piltnns, in Lanerk, James Ia
vvreilter tber, WiUiaaa Ihck ther, Jr4in Thom-
soD, carpeiiler tkaVf Alttxander Brown the
.IrdiibBld Symoon, tb«-, Dairid Wbyi
siBitb ibir, Tbomoo Laueblan, inercliand
Iber, WiOiaMn FdrgoaoD, weaver ther, VfiU
ham TwoMik, ton ti* TweddaJev'i
late balyie ther, Gideon Weir, ^tvnesmiili' |
Baiial
rdoraocy aad probation ? Tbougb it be t<
eatable, yet ii was thought ii woold nol
parmitted, liis beings oaly a cit il irrierest.
Gayl. Lib, 1. de n^e |»u1k e. 10* who provi
that *■ in criminaluHis procurator uao debet ail
' milli,^ but the ^tiitty jKinnel hiuneif moat bt
persooaHy present, steing the jtidge may ex«
piscate atucii froin btm, which camiotbe donA
if be was albwed lo appear oniy by a proci^
rator,
« For otkers, viz. Muirbeod of Bradiabollii,
<^c. It w^ alled^d, tlmt il io true, ^ advo4*
*• caiua fisci non prtestmiitar oaliinioiBrt»' yet
gamknaaa livea^ eilatts, fomiaoo ami v^ral
14011% oiigbit ool to bo bionglil ia qaailina wl
oMt ho cotidosoenii im hi» iofoctner, thai hm
laigbt siibscribo '^ m poena tahouiB,' both cou<4
tbrta to tlie citii kiw, and the lavi and practico
of all tiAtiottii, yid thu: act \'?H7 ; for the ver]^'
1 ----'--' ''3VC3 a a?igiiio, thukigk ilieybeao#J
e. die general abnlilioae. xbe a#^ |
u^ ..;. ...Lhtred he bad no iniarsiitr, bal iHd
privy council and Kxchei|uer having^ employed
one to take up lists of all suspect porsons/hei'
by the Coancil's w^arrant, now pursuad ibiaai
** Tbe^iisihnes fouod tbe council's warraalsafl'
ficient to Itberata Iba advocate frotn coadcsocaik
mgp tipva 99^ otibiT iulormer ;'* tboo^ Ihia
■air eiaeuatc the force of tba said jtist act of i
nMMBMaat.
*^ Soctfti'rviUe of Urai was cleansed by thO
assii£e. Vide the assize pursued fwr it, Itilla
Juoe Itidh l^ae the Case p. 73, oi tbif
Volunat,|
'* TlMea ibo advocia ofibriog ta cottlinoa tbaj
diet afi^ainal tbe rest of tbe becilOBH it waai
lerijtfed. The diet was peremptory, and baboira
eithar lo bo dcaarted, or else tbey isnmectiaael^
triad and put to llie kuowU^dgt; of an lasiaok
'* Tka kola found iba advocala oug|ii la aaaiiil
«47]
33 CHARLES 11. Proceedingi agaifut the Lanerkihire Men, [248
mason and wright in Lanerk, Alexander
Ba]jie, smith ther, Alexander Anderson, liev-
tenncnt to captain Wilson, heritor ther, John
PiHujihruy ther, Thomas Hinsclwood ther,
-
against Kuch whose witnesses in the list were all
present ; but as to these who were not in that
case, continued them to June next, he ])eremp-
toril)r bringing in all his witnesses, and insist-
ing ttieu ; otherwise the diet should be de-
serted."
*' At this time, the criminal lords got a pre-
cognition what the witnesses could say with
doss doors, thon<i^h not upon oath, yet caused
ihera subscribe their declarations, ihat quoad
6uch as they ibund no probation again&t they
might desert the diet; \ihich abridged their
labour, there being upwards of seventy or
eighty on the [mnnei ; but it was clearly ^ pro-
* ditiu testimonii,' and a dau;^-ei'0us novelty eii-
piging the witnesses to bide at what they say
behind the panuePs back, and very irrec^lar in
the Criminal Court, where by act oi parlia-
ment 1587, no probation can be taken, but in
presence of the pannels ami assize : And the
use of these precognitions have only been as-
Fumed by the privy council. Some of them
^ho were continued, or dc serted, (seeing new
letters might hereafter be raised against them,)
desired their witnesses in defence and excul|)a-
tion roig^ht be received, to ly * in retentis ad
* probationem innocentiae,' lest they should die
medio tempore. This was refused, seeing the
king ran the same risque with his ; yet they
]iad precognosced ; but that decluratiitn (if the
witnesses died) would not prove.*' Fouutuinhall.
<< Ui)on the 18th and 2l6t of March, 1 find,
by the registers, prcat numbers of heritora in
the shire of Lucerk are present, and called : I
mav class them in two branches ; some of them
make a resignation of their lands, and are dis-
missed ; and others of them stand their trial,
And are Ibrfeited, many of them in absence.
iW the first sort, John Williamson^ son to
■Icstpli IVilliainsuii heritor in Holl, John
!S|jr('ul \()iingi-r, writer in Glasgow, James
IVaikor younjjer of ilaekethurn, William
Twcddalc late Kailie of Lanerk, Hugh Weir
mcn-luint there, being pannclled, they have an
offer n.ade to them «;f the king's indemnity,
and accept of it, and icnuunce and resign in
favours of the king, commissioners of the trea-
sury, :ind ihfir donntors, all lands and heritages
ihWvn to them, or which they had a rig^ht to,
before his im'jesty's act of grace, ann as to
llicm the loriis (U'si-rt the diet hi pcrpeluum.
This was a kind of composition by voluntary
pailinpf with that part of their heritage, which
Ihcy had a right to in their own person, and
then at the death of their parr nts they came in
to the rest of the lands. Thus somewhat at
least was preserved, but it was but few got this
lavonr.
•' The far greater number, who were, as the
fiirmer, cited to tliia diet, and indicted in com-
loon fbrna, as guilty of therebellionat Bothwel,
James Muirhead, smith ther, John Jack in
Nemphler, llobert Frnm ther, ^Villiam F«d-
zean, mason tliei*. Hew '8omcrvaill, of Wdl-
frads, John Hutchieson, of Ilairlawe, Somer-
met with harder measures, as David White
smith in Lanerk, and other forty six belonging
to Lanerk shire, whose names are insert in the
proclamati(»n, of tlie date October 8. Thes^
nad probation led agabst theui in absence, and
all that is proven against most of them is con-
verse with rebels, when they were goinff op
and down that shire, and lying in camp there,
in which the whole shire was neoeamiH] at
that time involved; and they are all fomted
in common form, and ordered to be execatedas
traitors, when they shall bo apprehended.
*^ A ievr others ar^ brought olT by the Ter-
dict of the assize, as not having their indieC-
, mont proven against them : Indeed the proba-
tion against them who are forfeited is abuii*
dantlylame; but, it seems, the advocate voold
hiave all, who did not resign their iandsy to be
concluded under the same condemnation."
"June, 1681. It being represented to die
council, that many persons in Kirkcudbright,
Wigioun, and Dumfries, who were in the lite
rebellion, contiiiue in their houses^ and in-
tromit with their estates, the sheriflb and
other magisti-ates are ordained to seizie aiod
present them to justice, and at the same time
to secure their rents and lands for bis roajcit/i
use : It is likewise recommended to them to
6cciirethecou:iiry from field-conventicles, and
punish such as are guiltj^', witli certificatkiOi
that if they fail, the council will sendln forces.
" In a little time, those onlers are more ge-
nerally extended to the shires of Lanerk,
Air, and Galloway, in a proclamation, which
because I have not seen in print, and it contain
a good many of such as were forfeited hit
year and this, 1 have given it here from theic-
gisters :
' Charles, &c. greeting. Forasmnch as the
* persons underwritten, are by decreet of the
' lords commissioners of justiciary, forfeited ia
* their lives, lands and goods, for their treasMi-
' able risinsf in arms in the late rebellion it
* Doth wel -bridge, viz. David White smith in
* Lanerk, Gideon Weir gunsmith there, Dmk
* Gibson there, John 'AV ilson writer there, Ur.
* Thomas Pillans there, James Lawrie write
* (here, Archibald Simpson there, Thoinii
* Lauehlan there, William Fergusson them,
* John Semple mason there, Thomas liyb*
* there, Alexander Anderson there, John
* Fumphrav there, John Jack in Nemplair,
* Wilham Tadzean mason in I^anerk, Robect
* Lockhart of Birkhill, James Weir of John*
*• sliilp, John Steil in Overwaterhead, Joha
< Haddow in Douglas, James W hite theie^
^ William Falconer in Hamiltoun, Aithor
* Tacket there, Gavin Wotherspoon of Heath-
* rie-know, John Eastoun |>ortioner of Qiuunrv>
' neen, Kobert Goodwine maltman in GiaaMr,
* James Cuningham merchant these, Smb
849]
/or Tnincn*
A. D. 1^81.
[250^
Tmill of Yaifdbouse, I^uVe Greinibeills of
Hog^swajitle, liobert Lockbftrt of Birkhitl,
Gavin UiimiUon uf Hi tl» Gavin 11:iiiiiilua| of
W'eaiiowe, James Weir, of Jolmshill, James
*. Blackwel son to Tliomiis Blackwcl there,
< W ilium KitUleJ Rnmriii KutherglfO, Ilobert
* Fleminar of Aui'liinfiu, JoIiq [^amittori feuar
* ID liogepumn, Tbomas Crai^ feuar in Jack-
* touti, John Miller feuiir of Lon^calderwood,
*JohLi Wihon of Hjghflept, Itohert Sloven
* feuar of Newlant), Jobti Stcil of Wmiibltlf
•.John Cochrun of Cragie, James Dykes por-
' tiotier of U alburn J Joliu Carduf feuar in Jack*
* toun/fht^maii Patou at Old-kiik of Camne-
* ihaii» Jobo Whvtlau' of Bolbwel-sbeii, John
* PatersonUiei-e,'John White of Ntwk, Tbo-
•mas Lin of Blairacbiri) Jolm Weddale of
' Chisdale, John Clyde in Kilbride, all in
^ Lanerk sbire ; GiUifrt Al*lewrath of Dom-
* chory, Tlioma** Mac j arrow of Bar, John
* Majarrow of Penjanow, Henry Macjarrow
•of Athalbaiiy, George MVhir of Beoman^
* Henry M'lewnith ol' Auchinflonr, Joho Alex-
* ander of Duiouchry, M'unken son to
* M^uoken in Hilkertotinf Alan Bovvy soti
* to Bowy of Drumley, James Wood in Air,
* Painck* Mulougal of Freugb, Mr. Williain
* and Alexander Gordons of Earistonn, Mr,
* Wiiiiuoj Fenrussrm of Kaitloeb, Dunbar
•younger of Maeliirmoir, John Bellof White-
* side, John Gibson of Aucbincbero, *
* Gibson youESfer of Inglistoun, Gordon
■ of Deodeocb, Grier of Dalj^onar, -■ — -
* Smitb of Kilroach, M*IeHan of Bar-
' rua^ebun, — ^ Gordon of Craigie,
* Lennox of Irelanduun,' ►Gorduntd' Bar-
* barrftOf John Fmvberton of Auchinehrie,
* David M'cullocb son to Ardwell, William
* M bitehead of IVtibbouse, John ^Vdeh of
* Cornley, — — Neilson of Corset' k, Robert
* M'lellan of Barseob, Samuel Miellnn bis
* brother, ^FullnrtounofNetbcrnull, (itorge
'Mackartoey of Blaeket, Gofdon of
•Garrery, Gordon of Koockgray,
* Herron of Little-park, — ^ — Gordon of Holm,
* — « Gonlon of Orerbar, John M*naug^lii of
* Culg-nad. Murdoch, alias laird Murtioch,
' Andrew 8worri in Gallouay, John Miilcolm
* in Uafry, tn Galloway. Which persotii (as
* we uie inlurmed) do not^vithstutidini^ hve and
* reside at or near tbeir dwedin)^ liluees, and^
* by thcmsolveflf or otber&% to tbeir use and be-
* hooff do iiplit), (MissesB, and enjoy tbeir lauds,
* rents Hud goods, as if they were our free and
•peficeaMe subjects, in hi|rb and proud con^
* tempt of U9^ otir authoiity aud lawjs: We
* therefore, wiih advice of our privy counil,
* d<» hereby ^ive aod jf rant fuU power, 4tjthority
^ aod comrnLsfiioa to the sberitfs principal of
•the shires of Lanerk, Air» Dumfries, stevronl
* of the 8te%vartry of Kirkudbri^ht, sir Andrew
* A^new of Lochnae, RheriflT-pniicipulof Wig-
< tonn, aod ibeir deputes, to pass, pui^uc, take,
* npprehend} impri<iOD, aod prei^int to jtisti<:e
* the foresaid rebels and traitors^ w herever they
* CUdi be found in any [>arl of their shire or ju-
M*Qiiliarrie of Scorieholm, John Sleill,
Overwatterbeodj John Whyal, of Neak,-
Muirbead of Breidisbidme, * John H»ddo»e,j|
in Duug^las, Jai^es Whytt ther, Jumes Semple
'riidictloD; ajid, in case of assistance orhostil*'
^ opposition, to pursue them to the dtrath by'
* force of arms, or drive them forth of ihe*1
*• bounds of tiieir shires and Jurisdictions ; and,' J
* if need be, are to call to their assistance sucb'l
*■ numbers of our goud suli|ects, as they shalJCl
* find necessary for their assistance, wfio are'l
' hereby ordained to concur with, lortify and]
' assist our comiuiaionera foresiiid in this our f
* service, as they will be ausuerable at ibcir lit-'
* most peril. And if» in prosecution of the sahf j
* rebels and traitors, any of them iditill lie mu-' j
* tilate or slain by any of our said conmiis- J
* sioners as.sisting' them, we declare that *bey j
* shall never be pursued or called in questioii]
Hberefore., but that the same shall be reputftj
^ and esteemed ^ood and aeecptable service to 1
* us. Given under our signet, at Holy-rood- I
* house, the B day of October, 1681, andof ou/1
* reigu the 33 year. Subscribed ut in Sede-*]
* runt,'* 2 Wodrow, 159.
* Wodrow gives the following accoont
this and some subsequent proceedings a^^ainsll
*' that rehg-ious and worlliy gentleman tb%|
laird of Bradishcdni in the shire of Lanerk/\
from original papers, furnished by the laird^
*' of wbtim,'^ pri^ceeds V\ odrow, ** i woukl sa%
more if his mudesty did not forbid me/'
" James 3Iuirhead of Bradisholm, liad 1
still a countenancer of Pre&byicniio ministers $^
and before the risiug at Bothwel, by scleral
summons and other papers before uie, I fmd
be was brought to much trouble before the
privy council and other courts, and paid
consitlerabic sums of money for bearing the
gospel preachetl by Presbyterian ministers, ilc
was further charged ancf finetl for harbounu;^
Presbyterian ministers in his boose, and be*
cause they prayed in his family, v^ hen f liey
came to visit bim, be Has made gtiilty of a
house conventicle, and underwent several ar*
bitrary tines.
*^ 111 tbeycar 1679, at the rising «t n<»lhwcl,
his hoiiise being within two miles of the place
of engftgenieut, he carried with all the caution
he was capable of, and retiretl from his own
dwcllin^jf for 'several weeks; yet he ivus in-
dicted bel'ore the circuit 1681, as being in the
rebellion, though with on t the least sliadr*w oi
truth. His indictment is in my hands, and
runs in the common fcnni above insert. After
til e examination of a prodigious mimbwr uf wiU
nesi*eH, and nothing being proven, and when he
hud given in a representation against some of
his pursuers for suborning of witnesses, ami
oNered to pix>ve it, the matter was husheil
lip, aail by an onler of cnurt just now be-
fore nil-, all further prosecution of bim was
dischaigid.
^* When he was, a3 he thought, secure^ be is
a^4iu put into tlie poiteous roU, and before
Ǥ1J
^3 CHARLES II. Proceedings agmU the Lanerkshire Men, [3»
maUman in HamiltouD, Jamea Lockhart called
laird l>ockliart, in Hamiltoun, William Fal-
Gooartbei', Anbur Tarbct ther, WilJiuin Polr
lock, siiiitb titer, John Scotta, diler and
this circuit at Glatjg;ow receives a new indict-
ment, which being but short, 1 insert from the
original. * James Muirhead ot* BraJisholm
* voun^cr, you are indicted for the crime of
* high treason and rebellion in joyning with
*tiie rebels June 1679, and beiuff in their
* comjpauy with arms at the SchawLead-muir
' Hamiltoun, Uamiltoun-muir, and sci-eral
*• other places, aiding and assisting them,
« giving and sending out meat to them, or
' otherwise supplying them, sending out
*_ horses and servants to them, counteuanciog
'and favouring of rebels, accessory to the late
* rebellion, harbouring and resetting of them
* in your house, upon the ground of your Wad
*• as tenants, receiving onaii and dut^ from
* them, conversing and iutercommunmg with
* them, particularly you reset and keiit Robert
* Turner in Goodocniil upon your lands, as
' your tenant, and receives mail and duty from
* nim ; for all which crimes you are to uqderiy
« the law.'
**• To say nothing of this informal and ge-
neral libel, when he appeared with other gen-
tlemen he was continued till the 25tb of July
at Edinburgh, where 1 find by a si^ed extract
^'the act of ailjouma) he was liberate from
prison. The act itself, containing his petition,
and a short hint of his strange usage, deserves
a room here.
Ipud Edinburgh, S5 die mensis Jnlii, Curia
legitime affirmata.
' The whilk day anent a petition presented
* to the lords by James Muirhead of Bradisholm
* youD'^cr, shewing. That he beiog formerly
* (1()81,) convened before the suid lords fur bis
' uUedgcd being in the lale rebellion at Botli-
' wel, and exact trial made, and seven hundred
* witnesses or thereby b«.'ing examined ^aimtt
'him, nothing of guilt could bo made appear,
* and ihc i>ctitioner having then ]>re8sed to go
< to triui, and having an act of council for that
* ed'ect, the lords at that time deserted the
* diet siinpliciter, and discharged all new letters
<an(l dittays, except by a warrant in pne-
* sentia : And yet, wilhtiut any such ivarrant,
* he was put in the portcous roll, appeared at
* Glas<T<)w, urged a tri-il, and was continued
* to Edinburgh, where !te offered of new to
' abide a trial, but was committed to prison.
* Tbercl'ore craving, that seeing the petitioner
* hath been so oil troubled, and always appeared
' and h now ready to pass to the knowledge of
' an BUMiAQ for clearing his innocence, and is
* ready presently to exculpate himself by fu-
* mous witnesses, that he be ordained to be set
' at liberty, and the diet deserted simpliciler.
'The lonl justice clerk and cominiHsioners of
' the justiciary, having considered the uud
* peCitiiMi, do ordain the pcliiioner to be set
<alliber*v H^rtcacied forUi of IbQ books of
younger, UdingatouD, James Coras ther» Alta--
ander Corss his sob, James Rae, soa to Joha
Rae, fewer ther, Jolm Wilkie, son to Jmkm
Wilkie, in Know head, John 8oott, in Kcamiir,
' adjournal, by me, Mr. Thomas Gordon dodc
' to the justice court.' Thomjui Guhmm.
" At this time there was no security fiir 9my
body who had ever tavoured PresbylffdaM»
and so, notwithstanding of this soctod ahaolti-
ture by the criminal court, neat year at lll»
circuit be is again put into the porteou*
for the same pretended accession lo Batkw«|;
and when he would not purge himself by takm^
tlie test, he is remitted to Edinbui^gh^ wIhb
be is libelled belbre the council ibr i
verse, keeping conventicles andotker po■^>^
and his oath is taken upon the artkka of tkm
libel. And because in his depoaitioa, he a»-
knowfed^es hia having had four tuMes Pivakj*
terian ministers in bis house sinca the i *
Gonveuticbes, and fined, according to a
account given in of hia valuatwii, as an 1
in fhwr tboumid marks, and waa kept in _
about fourteen montlis at Edinbuivfal AH
this I have ^ven the more disiindly, heoeaae
every |nrt ot it is vouched by principal papsii
before me. And this was the case of e p
maay other worthy gentlemen nmi yea* i
this."
With respect to the great nmnber of viJU
nesses examined, Wodrow says, as aNaie^
" Because tlus may appear strnege le
such as know not the metheifei of Ibis timm%. iC'
would be noticed, thai in tiie year 1681, mmj
more witnesses than 700 were cited in to lU6n-
burgh from the West-country agaiosi tiM
gentlemen then indicted, and they were el
interrogate with respect to each genileman wdie
stood his trial."
It farther appears from Wodrow, Vol. 2« pi
42Q, '* that iu Deceoiber 1684>, a decreet' wee
passed by the cutiucil against Jamea Muirheei
of Bradisholm, and otliera : their libel waa mere
non conlbrmity, and alleadged reset, and OOB*
verse, and refusing the oath of allegiance wkll
the king's iH-erogative annexed, which Hmy
did not reckon themselves obliged in law te
take;*' whereupon tlie couecil fined thesa is
difi*erent sums; Muirhead*s fine was 4,M09
merks. It seems that Muirhead was aAar-
wards imprisoned ; for, Wodrow notes, iiiMlBr
date September 11,1685, that Muirheedi, of
Bradisliolm, was lilierate uMler a bond of 40M
merksto re- enter October 12. Intreotiaff ef
the proceedings of the ciicuit courts, heHl im
difierent parts of the countr}' in the yeav liU^
Wodrow says, tlut the p«Mteous roll Ibr fli^
shire of Air, so lar as he couid guess, wImd km
Iblded it out, '* consists of upwards of SUOahcets
of paper ; that of tlie shire o^' Laaerk is upsv^ids
of 200 sbuets, and noetains the whole gl«tr|iaf
that shire almost witboii4 esoeptioia.V Vet %
PP.31M17.
859) ft*' trwnn.
MmMcM^hk mm, Rolieit Cait^. M^oilsetiflr
in U4<ni;«lrfito, Joliti Oofsr In,
Janrn 11i(»m<oii, ficntinnero: itn
«utl yoovgcr, ia Easter Olemorle, J-olift nuBiiH
0Mlberiiiliiiowe, WiUiwn WmIik*^, portiofivr
of MainhiH, Jamrs Gn; nn*
*■ GrayluKicm, ler
«i€G«niafiliefi| i«mes i^ray, nr n<inpKnow»,
Wftllnr uon^ten, poifMinef, of lUbroiHotiii,
Mr. John Spr t^^' -^ '*'-=rr3tih»Hi» ^ireitter it!
we, J
My , ^. ..,,.. -^
O«iodvii>, rnuJtmttfi,
e, nercliiiH in Cilivs<'f>^^
MMiilivnry , u,.,,.. .W"' i^'i-ylitih*^,
liolMit O«iodvii>. rnuJtmttfi, utuiinir-
r thcis
; nier ai Muilefiiiartifr,
nml portiotier, of Shet -
\nmi\ toylor &D<I fcwar
tber, Ifvi^H Kff, ot Howehousi, Hubert Fley-
tnlfl^, of AucKinrtiK% VV iUiani I'ark, fewiir of
iLMrivkSf Johu IliHi ' tV'warof Kogci^uii)
Thomw V ritig' fc\« tafim , Da^id Linde*
«igf'p«iftioiM»r Uifeixn-., >Miitt MiHar yotniger,
fePM in l.0«£f CntlMnvoad, Jobo Witsou, in
tloclimie, ymwmtt or *
Yoiiii^, of fciltull, Thot^ I
iMer of FioM«n4, James b v<'kf»/ ]torti<«t]^r
Off HtOhame, John Caradiiff/ fis^uir in Sire-
v*ti, JaoKM Huntitton, elder, in Prym-IiiH,
Hticbtrd Maikti^, m Tw«*i4iii«yd, Jutncs
WUInr, ymm^^ of lUlkctbiifn, Tbomai
i%llte««t'fli« olti kirk uf CnmiK-lhRt], John
Clr«y of 0irD^tvi1l, Robert 8ieill, in SUinio,
Mm Wbilkw«, in Oottmrliihetlb, Jnbn Vit-
tfftiMi tbor, WiMiafiii W«iilrop«r, portkincr of
&Mir Ontb«4MMt, Mmi €?tlberli«^ j9\xitf^^
puMiwitr of WMaoeHe^, linb^rt Russ}!}, |iar-
tiMier tbevpf, J<iiii Mtlbr, of Wiittprsbnu^,
Jahn Nbnaioin iW fforih Jr^hu M']r\ tt voiinnnpr,
^fl^ckbrkl >n.
inift Geof^f tii-
bdid Ctmlnml^ ol KmrnohUhiiL Jatii*^ llamiU
too (»t' linUyd, JamcK Ituiu1Ur»n, ol'8c<mphally
Tbarau und JfLincji AktDiinft, nf Mftines, John
IhlMtllih fnwnr in llnfuitifii^ Wflliuft l^k*<,
i«i*LtnT"^ ' .i««rt and Wiibam Cilttmurs,
tf€fti*ii< 'f^^ Al4?xafidci.' MurimVt ^^
IMitouiiiif^ud^ luid l>y«k« Oiiivtn S^inplp, 'pr-
#Qii«r <if KifkwiM>rf^ TboiWfM Brownhr, p<ir-
•f Cfj"*"** '^»?<rnMui In^iier, pArtsoMY of
(•«, of F4«iiiUmiB| J^meai
A. D. 159 1. [954^
giAtoJr, in Eit)(tfT«eai, Joltn WHIiAtmon^
ymmgrr, heritor of the lunds of Hull, «ni|
John WiUiamson« son to Robnt Wi11iiitii»0Dy
«^1ed k>rd of 8botcleiieg^, cQftkAiid roeotiou
thM frerTiotwithstiindiit!^ he fh** cwmmon In fie,
liiwc *' ■ lament of
thiskii irpoi;Tii4
rj^iseiutJ ot Ins liinjcsiit's bu lyre 4s, or any
nutntver of theni) thejoynrng And ossiemhlin^
tmg^itber in armes without and contmir to bttt
mnesties conitnaind, warraiid and ntilhoriti<^^
and the abaitincf, assisting, fecep«inp^, inter*
oommonirjc and keepings correspoui1et*f*e witli
such rcljcll?*^ and supplieing' of ihem wilH
levins of mcHi horse, inouev, armesi and I or*
niKbini^ thtni with roe-at, (frink, powder, hftll,
and other munition bellicalJ, are most deta«tft* |
hie, horrid, by nous and abominable cry ittes of
rebellion^ treason and lese majestie, ftnd &M
punishabJe with f[>rratilitiFe of Kif, lam*
henta^*?* and escheat of tbcr moyaWcsr, and
the third act of the first parliament of *^
James the Rmt, It ii statat and ontatned,
no man oppinlie nor nottoriouslie i
Against the kinij*8 person under the patu.
foHaoltinsf lyflT, land and jcroods : and bt
ibrettie sevinth act of the second pirHiameDl
kffig JAmes the First, it is statnt, that no mi
wilfellic receipt, mantaine, or doe fatonrto
pin or manifest rebella a^inest the king^s m*
I'-Stie or common lawe under the paine of for<
laulfrire ; and be the fourteint act of the U
parliament of king' James the second, tt
stiTnt, thai DO man rebell ftgfaine^ thekin^%'
pe?rs(m or anthorilie, ormakewarc ag^inc&l tji%
king's leidgTSt nod inhoso does to the cod trait
to be pnni^fH «flvr tbo onatitie and qnantttit
of siclire^ ' A be tne twentie fylt act
bia 9ext \< it k fitatut, that if tnyj
iMRi oonmun or nor trisftson a^inesttbe Idngvj
jMieuii, m ryse in featr of wear fifpnneil htnii
or recrpte any that has committed treaaoti,
supphe* tliem in lielp, redd or conocill,
h. niM.cKr-M .ic traiiom ; nnd be tli»* f^iM,
)i act of the twdth | t
*j ..^ _' :. . , tin- sivt. It is V X
wherever any <" f
part of thiM niilii , < j
whall prt'sunie to rece»pl, ftuppUe or itit«r-
Aithl,J(dto \
JliMwdi, po:
^iifcr, |iortiMier of 1
jMMpir, MflfOcMr t
iij^T of Flack.
In Kito('hs\ d
ik,
i>ubt
cnmnfn with ih'rn, or ^^r thrm any tddff of j
■. ■ ' ' ■ '!«<'
tic\ ' 'lilh^eni
in N the Bail
traftr>r% rina rLOcii*J, nnn uku wnu t\iitpcitd\
cfTtttW l(ts miiycBlie, or 9omc of hn
r--' " nrfome |>erf<nia of nnthoritie or <
t he fthjrr, that such rehcn* are wittnttl
t ,. , amUrtht p-.m. fUtti the saidf traitoi^J
fiiHl reltells ought to they if cr i
piehcndit niKl ronvi : I\kLva^bel
,> . ^ ' aIW
h ) c trrastrn t n I he m i l U is k tltf^tloTIIf^l
or any numbrr of ti i or icsae^ npOlt^
wty ground or pretext n httiiwaicicr, to r\^ tfr
cmnt&ue m armes, to mtkt peioe or trirf ^ m
S?551
33 CHAULES IL Proceedinga agaimt the Lanerkihire Mem. [S56
to make any treaties, or leagues with rorrai|rne
princes, or estates, or amongst themselves with-
out bis majestie's speciull authoritic and ap-
probation, first interpoued therto, and all his
roajestie*6 subjects are discbair^red upon any
pretext whatsoroeFer to attempt any of those
thioi^s under the paine of treason ; and be the
elevinth act of the first session of his ma-
jcstie's second parliament, it is statut and or-
dained, that iu tyme comeiugf in all cases of
treasonable rvsuini; in amies, and oppin and
manifest rel)ellion a^uinest the king's majestic,
his h;^ne8 advocat for the tyme may and ought
to insist againest, and nrosecut such persons as
he shall be ordored be iiis majestic or his privie
Gouncill to pcrsewe ; and if they be cite<l ami
doe not appeir, tlic justices, notwitlistanding of
ther absence, may and ought to procee<l to con-
sider and give ther interloqmtor upon the
lybell, and it' it be found relevant to admitt the
same to the knowledge of ane assyse, and upon
the verdict uf the inquest ftnding the same to
be proven, the doom and scntance of tbrfaulture
ought to proceed, and be given and pronunccd
in the same maner as if tuc persons accused
Lad compeireil and wer present ; Nevertheless
it is of veritie, that the saids John Wilson,
Mr. Thomas Pillaas, and the other persons
above-named, and ther associats and accom-
plices, shacking olf all fear of God, conscience
aind sense of duty, aleageance and loyaltie to
the king's majestie, ther suvareigue aufi native
prince, most perfidiousiie and treasouablie pre-
sumed in coid blood, and in the nighttime, upon
the day of Apryll, 16r9, to murder and
kill , a soldier in captain ' com-
pany, and \ei\ another of the saids souldiers ibr
dead, and John Balfour, of Kinloch, David
Hackstone, of Ilathillet, and others, having
upon the third of May, the said year, killed
and murdered his grace James late arch-bishop
of St. Andrews, they to escape jusiice and in-
volve others in ther guilt, went unto the western
shy res, and most treasonabliejoyned in armes,
wth the persoues above named and others, llier
dissolut and flagitious accomplices, under the
command of Hubert Hamilton, brother to the
laird of Prestuun, and upon the twe ntie nyntli
day oi the same moneth of May, a day appoynt-
ed for a solcmnc thanksgiving fur his majesties
restauratiDU to the royall government of this
kingdoinc, did goe to the burgheof Uuthcrglen,
and tiicr most proudlic and treasonablio, hav-
ing read acts of ther own coyning, they most
treasonablie and wickedlie burnt several acts of
parliament asserting his majestie's preroga-
tives, and establishing the government of the
churclif drowned out bonefyi'cs sett on incom-
uiemoration of that day, and therafter they
and ther reliellious associates, to the number of
fyveor sex hundreth, did wayUy a small and
lewe number of men under the command of
the laird of Claverhouse, and did most treasona-
blie and cruellie kill and murder some of his
majestic's souldiers under his command ; Ly-
keas upon day of June iberailer, they did
i00 ablic attact^ueandaimultasmall
paitie of his majesties forces within tbe toun of
Glasgowe, under the command of the lorl
Rosse and laird of Claverhouse, be whose pru-
dence and government these oppin, nottar and
manifest rebells wer repulsed ; and yet being
incouraged with promises of levies of iheOy
horse, money and armes, from others of ther
treasonable accomplices, they did swell and
growe to the number often or twelve thousaudy
and they, and the persons above named, march-
ed up and down tlie countrey, throwe the
sliyres of Lanerk, Aire, Itenfrewe, Dumbftrlon
and others, in warhke and -military powster,
robbing and pillageing his majestie's good sub-
jects, searchmg tor horse, armes, powder, ball,
and other instruments of warr, ^uarterin^ upon
and oppressing his majestie's leidges and peo-
ple, and they and their accomplices did main •
taine, supplie, comfort and defend Mr. John
Welsh, Mr. Samuel Arnot, and other fbrfault-
ed and declaired rebells for the rebellion 1666,
did supplie, shelter, and protect the impious,
horrid, and sacraletlgious murderers of.tbe lats
archbishop of St. Androvs, and they and ther
accomplices, to the number of nyn or ten thou-
sand, march towards Bothwell-bridge and
Hamiltoun-muire, where they did take the boM-
nes to issue proclamations and print declara-
tions bearing the treasonable grounds of ther re-
bellion, and not content therwith, they and ther
rebellious accomplices presumed to modellthem-
selves and take the name of ane army, formeing
and framing themselves in troups, companys
and regiments, nameingcoUonells ot'regiments,
captaines of companys, commanders of troups,
and other officers, under the command of tlie
said liobert Ilamiitoun, John Balfour, of Kin-
loch, the deceast Daviil Hackston of Ratbilet,
and others, the impious and bloodie murderen
ofthc late arch -bishop of St. Andrews and they
and ther accoraplices did incamp themselyes at
Hamilton-Muir for sc vera II dayes togitber in
June 1(379, ami obstinatiie contmued in amwi^
makeing detachments for rifleing and plunder-
ing of the comitrey to make provision for ther
rebellious camp, and notwithstanding of ane
proclamation issued furth by our privie coun-
cil I (Icchiiring the sM insurrection to be ane
horrid and manifc'st rel^ellion and bye treason,
and commanding these rebells to desist and lay
doun ther rebellious amies, yet they did most
treasonablie continue and abyd in armes. ifid
beat parlies he drum, and diJ take the boldnes
and pr^un)ption to send ther commissioners to
our royal camp, and treasonablie did requ^rs
the subversion and overturning of the gt>?em-
ment of the church ; pi-oudhe and insolentlia
boasting of ther trenMuiahle and (as ther oom-
missioners wer pleased to call thein) formidaUa
armes, in which thry mo^t treasonablie con-
tinued unlill the twoniio second day of tbe sM
moneth of June 1679; that his ma'ties finwis
did attactque and assault them at Bothwel-
bridge, wIut by (lod's blissing on his matiea
armes and be the valour and conduct of Jamca
duke of Bucclciigh and Monmouth, his m^jealiii
gcnerall, and omccrs and souldiers under him,
\
k
4lier ouxDcroys and risb«lilou» ami^ wu^^I'-^t'-^^
^ pouted uud vaoqitishcd, uiitl yvi {\n
4<bove tiatiieti 111 villi' Hi>(l i\iivl itiaiJe tilt L __ , ,
they uiid \l iirul liaeraiegious inur-
dtrera ot lit' u hi^liniMiJ' Sl Andrews^
Oiarclied in ]tt&rtie^ and io ' uvvslt^r Up
mid doMQ tltti eotiiitreyf in u uf l>uni>
fiivsy V\ iafto'jiJ, Aire, and SttwaiUiL' of Khk-
€udhrj;7hr, f^nwrt* riT»*»^ iipno ttfut opprt'HHMiiT ||i$
ri ilier
^ ond
iifcV ot June i.Lst, i: * jist Mr,
Kitcliard Cumeroti, li atidcoti-
1^.1: '"--'^ ^ ■. and
ie and denunce
>^^ : sorTt under or
ycalti ^ and dill iiiohI trea-
sotiahlo iilrive and dUperse,
a HKjst trcaionablc paper cattod ^^ the F^inna^
licks Nuvke t-ovenanl ;'* v^hicli was tukeo
from Mr. Donald Cat^dl, at Uuiiiiisteiiic^ and
is nowf* printnl and pMMisUcd, aiid heretA
hotdrti ail r^-pei led » Rill ^ ^cat
at t lie trii'aiiouahle atiil icu-
fjon uiiCid be Wr, Donaiu i argiii, iii ion wood^
ii|H)ti ilj« day of last, a^^satuect the
li»t ' "^ - ' ■"■''- '- ' - n the
d ^unaiueii
,A3i »..»..v| -^ sidtft
Mir lie* forces ^se,
•Mil I . ailit-lajrd 0 _ _:iLill,
did tieji^lu, resist and oppQi^tKetn, kiiled and
woundii seireral o( thcm» uDlili at kji^ih \hty
w«r diwsipat and dt fate, the s*d Mr* Uitcbard
Cameron bcnng' kU<id upun tbe p^ace, and
i>avid Hacksloun id' tUMnletf and otbers, taken
pnaonemt In ducinj^ wlieral or ane or olber ol'
the a-ds dtedi^i the saidei John Wilsoo^ Mr.
ThoDias Fdlaus, and. tiw other persona abov««^
Otnied, have c^intuUttd and inciirred the
crymea and paine of trrusoa aUivt? mentioned,
Dttd tre actors, aiit «nd part M -^ ' -i -^
l»einfir found be ane ii&MyHc, ibr\
punixbed with brfauJtui ot'lytJ', 1,^:,., , ^ - ..o^
10 ibe t«?rrDr of otheii» to couiiuitt the like her-
cfUr,
Pcnewer, — Sir Gmtge M*Kenzte of Hose-
tiauffh otir sovcratgu lord's advocat.
War rand /or Advocat § io compcirjbr the JJt-
fendrru
Thf 1— * • '- '- -" Justice Clfi^
and C did aiitli'
and ia., ... ,,, Lri» Mr. >; , -
Hun BaiLidlouiJ. and ^1 ^Miiiaie, ad-
VOCata, to cittiKM Mr ;a]m! iuitorr itri>> uf
inch of th<
aball coiuiMrii
for treason aiid rcbeUiou at tbi« dyrt.
ReUls declared Fugititti,
Tbemtid day Jolm Wilson, wrcitter in La-
nerk^ l^lr.T le,
lirrriuer tbt^i .i ^ . . .. u.i^ld
VOL. XL
Si .^^c-ir, ther* Thomas LauL'hIun iHcr, Wdliam
1, ^eavur lher» fiidroii VVtlr, "june*
ljei\ James Park, wtfiivcr tliei\ John
humpte, mason ther, Hiiji^h Ker, ;ion lo W illiain
Ker^ in B^rooald, Ttiomas In^lis, ^lineinaker
iti l«anarkf Itobert Haddowc ther, John
Buckle, younger, mason and uvight thm%
Alexander Balyie, >jniilii Iher, Altxander An*
dtrson tber, Joba Puitipbray ther^ Thomai
HhiMC'Uvood ther, John Jack, to Nt-mplder,
WiLJiDni Pudzeaii iher, Hugh SomervaiK of
Urrats, John Hntcheson, of Harelawe, Uo*
bert 8onierv(iillf of Vairdhotise^ Luke Grein^
sbills, of lio^^casUe, Robert LocklinrU of
Btrkiidlf Gavin Hamilton, of Hi IK Jnmes
>Veir, ofJohnshill, Jame?i vr'^^fl^ »« • > -^* s- o-
rieholiiie, John Steiil in < n
Whytt, of Neiik, John ll , . i^ i^ us,
JuidW V\ hytt ther, Wdliam Fateouer in Ha*
milton, Arthnr Tarbet ther, John Scott,
younger, in Udini^stouu, James Canie, in Ud>
In^Moii, Alexander Coc^, his son, Jumea
H^f^'f son to John iiae, fevvsir tlier, John Wit*
kie, son to John VVilkie, in KnoivhvafI, John
Scoir, son to John Scott, in Kenmnir, liobert
Coisc, wadsetter in Udingston, John Thomson,
son to James Thomson, portioner of Gam-
quein, George Roberrson, eldar and younger,
of Kaster Glenlore^ John Kussill, of Eastfeild,
Gavin Weatherspoon, i'ewar. In Heather-
knowc*, James Gray, elder, of Chrystoud,
John Easton, port! oner of fiarnquein, James
Gray, of Berrieknowe, Walter Donahlson, por-
tion it of RalHestoiin, Mr. John 8preuU, wreit*'
er ii! Glasgfowe, Gadn Wood^ wriirht Iher,
Robert Goodwin, mahman ther» Jaijies f -un-
iti^hani, mcrchnnd ther, Isack litackiveli,
son to Thomas Blackweil, calendar thrr^
John GoTan, portioner of Shetlestfiun, Wiiltam
Ridilell, fewar and mason in Rii(btreleti«
John Brown, t ay J or and fewar tht*r^ Uu^i
Kcr, *#f Boi^liouse, Robert Fk\ .f
Auchinfiae, William Park, fevfai j,
I t.. ij-,^,jj^^j^^ fewar of Rocertouti, i iimnas
var of Jatkloon, John Millar^ yoting"-
ran, ot Craijf, John
' .. : litippeii, ThoHMi^ Le-
per, pomoner of FeiUIUead, Jatnes Dykm,
portioner of Halbume, Johti Carodnrt', fewar
lU Straven, Ritbard Meikle, in Tweihesyd,
Thomas Palton, at the Old Kirkof Cnnibu^ne-
. John Ciray, of Darngafill, It
ain, John Whitlawe, in Rotli
J<tiH> Paterson, ther, VVilham War<hoi>it , |M»r* j
lioour iif Eaater Calderliead, John Catberhead^J
'ii^'er, portioner of W indie- tdge, John
:t, younger, of Stockbridjfcs, Tltonjai
*..;.v^ of Blairrcckonin^, William Dykes, of
I.*aiiibhill» Gavin Stuiple, portioner of Kirk-
wootl, Thoina« Bro^valie, |M»rtioiier otTuritsl^.i
James Aikenhead, in Kittocbayd* Ja
Dykes ther, John Grainger, of Fla
J^i'kn Watt, ther, John Weir ^f Strang
ThotoM Uobeiisou, portiObar ot ilu
859]
53 CHARLES II. ProceetUngi ggmmd the Lanerkskire Men, [SGO
Joho Haddodr, in fiMteraeil, bcnig «ftjiiMli
called to liaTe eompeired befor the Lonia oom-
niissioiim of jiiMioku-y tbia day and placi>, in
the hour of cante to haf e undarlycn the lawa
for the crvmca of hye treason and rebdiion,
comniitteff be them in comimif ^ ^ burghe
of Ruthergien, upon the twentieftynth day of
May, 1679. and proclaimiBgr «cta of tberown
coyoibg at the maroatcrocetbefof, and drown-
int^ out bouefirea, aett on in commemoration
of hia majestie** bappie rcatauration to the
royal government of this kingdom, asaaoltin^
and attactquinir a pertie of his majeatie's forces
at Loudounhil), under the command of the
Jaird of ClaTerhouae, Iciilinfir and murdering
eererall of his majesties souMiera then march-
tngr to thebar^h of Otasgovre, and atUcoiieing
a partie of his majestie's forces within the
same, under the compnand of the lord Rosse
and laird of Claverhousc, marchiilg up and
doun the country with the murderers of the
late archbishop of 8t. Andrews, and others
ther accomplices, to the number of nyn or ten
thousand, quarterin^^ upon and oppressing his
majestio's good leiges and people, robbing and
rifieing ther goods and houses, publishing and
]irinting the treasonable grounds of ther rebel-
lion, beating parlies be drums, sending ther
commissioners to the royal camp, treasonably
requireing the subversion of the government of
the Church, resistiog feighting and oppose-
ing his majestie's forces at Bothwelbridge,
nnder the command of the duke of Buccleugh
and Monmouth,* untill the saids rebells were
* Of the procedure of Monmouth against
the Scots insurgents, Algernon Sidney in sue*
cessivc letters writes thus :
** No man doubts of the truth of the news
brougrht hither by an cxnrcss on Saturday
morning ; which is, that the conventicle- men
hi the county of Glasgow are in arms ; that
one captain Grimes coming something t(K>
near them, with his troop ana other forces, was
beaten back, with the loss of his comet and
Iburteen troopers; which according to the
posture he found them in, he was persuaded to
content hiniKelf with, rather than to press -far-
dier. Tlif*. council was called upon this oc-
casion on Saturday last, but nothing (as 1 hear)
resolved until they hear more, some doubling
whether it he a laid business, or a snddcft
tumult raised by accident. 1 know not the
truth of this, but the discem^es I have heard
▼ery often of late, of those who every day ex-
pected some such thin^, persuades me to be-
tieve it is not fallen out by chance. Thouvb
no resohirion wna taken at council npon this
matter, it is said, that private onlers are given
fHit to several officers of the late disbimded
troops, to get their men again together ; and
to others, upon the roosi plausible pretences
that they can invent, to delay their disbanding
These ampicions go too
h some of your friends
i degree, that eomnellortare
■ tebe^BDged than ooiuali; and
ft
defate, and eommittingditaevenllctlier aoli
and deeds of bye treason and rebcUioB, at
leiiffth mentioned in the criminal lelteni raMI
at nis Majestio's advocate instance against
•nai iney can mveni, io
M mud as may be. 1
Ihr, and already reach
and BUM, toauch a dcgi
if they do not find a way to core that aoie, at
the next meeting of pariiament, they will he
looked on as their predecesaors. If nothing
from Seotlaod hinden, the oonrt will go te
Windsor to-morrow.*'
** The Scotch news that I mentioned te jon
last week, doth still possess the minds of all
men here ; but all relations that come from
Scotland arc so impel feet, that no man knowa
what to make of tnem ; and those that cooM
to court being more particularly so than otherir,
no men are thought to understand less of A#
business than privy counsellors. This is at-
triboied to Latnenkile ; and thoogh it be ooa*
clude<l, that what he says is not true, eome
think the business i^orse, others better, than it
is represented. The fact, as far as I hear, is^
that the earl of Lithco with above five, and
twenty hundred horse and foot did come withiB
a few miles of the conventicle- men, and find-
ing them in such a posture, as he did not think
it prudent to chaige them, he concluded the
best was to let thciu take Glasgow, where they
are said to have found good store of arms, am-
munition and some cannon, and having left ao
many men in the town as are thought sufficient
to guard it, they march with four pieces. Tliej
are said to encrease in number every day, hm
we know nothing of them certainly, unlen it
be that they have no landed men amongfll
tliem, nor any gentlemen, but a younger bro<-
ther to a knight of the Hamilton family. The
last week we heard of nothing but raising ef
great forces to subdue these rebels. The doketf
of Monmouth, Albemarle, and lord Ganel
were to have regiments of horse, Feversbam
one of dragoons and grenadiers, the lord
Cavendish, GreyofWerk, Mr. T. Thynne, and
some others, regiments of foot ; but thM bent
seems to be something abated. The lord Gr^
gave up his commission, Mr. Thynne refhaei
to take any ; Cavendisli doth not raise anj
men upon his, and Garret swcaiii he will net
be at a penny charge to raise a man, but if the
commissioners for the treasury >vill raise lua
a regiment, and provide money to pay it, be
will command it. W hilst ways were sought 6
remove these difficulties, the Scotch lords that
are hereeudoavom-eHto pei'suadethem that the
business may be euded by far more ccrlun and
leas chargeable vays, in a^ much as these mca
having been driven into a necessity of takinj|
arms, oy the extreme prcs&iire suffered fnua
those that did aburo the aiithcrily his majeatV
had trusted t!iem with, the people being eaana
of those burthc'ns, the pLTSons removed tlial
had caused t]u:ri!, 9w\ sacli men placed *iA
the goveniment, as wjie rxcq>tabic to thn
nation, th^?y durst undertake rliat all mi^
be composed without blooil. This was not
(as I hear) disliked, but auotbet* point wttk-
alaited, that doth yet more incliac the eoart1§
iheiQf ihfir anmt as ihey tvho wf^r iawfuUie | thor ^p|>(.i
filed be CI«org« O^Llhie, Albany lierauiilt hy \ mn\ \iW\
•OOod of trit'T*" "♦ ^*.'iih ilr^pluyetl coat, nr--' i.... -i,.,
•liicr ■ohnuL >^it to havi.^ touwJ cair
■nd soverlit; *i..v» *.. J.^ books of adjourna
mild coime* i wluoh la in the year lAll act*
at' p4irliajiie&t were made tn botli kint^^iiomt,
MHcing ittrcttaop fov iny pei'soo beioa^iog
unto ^ther to make wnr upoa or iiivude liie
<»ibert wiUiout I lie cotiiteut f»f pariiatneuU
And ihovigh Qoe or two of tkr judges aay,
tbfti tlia acU bring rccipruciti, ihe 8coIb
httving resotiided lUrirfl, outs f /' > ' T
«r thougb il did qcH, Uie act
invasian, no vi^ays louclielh suco i^ irv ^^^c
llJttg's command tdiould li^o to subdiit^ rebels ;
iAben my, that whut the Beats did niighl
Ui4eid gtre unto the parliutuent of £n^laDd
ft juil jB^rouod (t( aiiouiini)< iheir act aJ^o, but
not having done tt^ no intin can doubt but U.
pemajiis in force ; and wJiosoever marchetb
•gaiuBl ScotUnii incurs tite penalti^ of treg-
flon denounced tiv it. And home that were
pretent i>t tbe nrnkiii^ iif il, are so far froin
approving tb« distin^iosi lMwt«a invadiu;;^ ^uid
subduing rebeia at to nay, thai ibc parliament
Ibexi fmdingtliey bad l^en upon the like pre-
tcnoe eagi^ped against Hootliind in 16^8 and
3tf, madetbiiftslttpicsaly to binder any sueb
bqaJBgaa ii lliat vhioli tn im>w dept^odin^f ; tmd
lo lake oarti that England ibonld urvur be
tgiiB engaged againat fikotland, without the
tfiomt of the parUaaiflQt; wbich was also tht!
niflMiwtiy the act was eooliJiQed in ioYce on
our aide, tliougli it was divoWed ou tbeit^.
Thia rendeiw men of eatAtaa uawiUiag to en-
gage j aad hereupoa the duke oi^ Muomoutli
wai a^ai aaray yeaterday in isueh hasle, aa to
carry no more eompony with biin, tbau could
go in MM day te your good town of Newark^
wbcrabewaa to lodge the last nigbt Heia
lumished with powers of indutffenca lo com-
poae rather than destroy ; and the lord Mel-
via (wbo ifi thought well enough inclined
to non^^eoal^riiiiats, and well bkod by tbem)
ia aent with btmt as being thought a fit
miptMiir of a good agreement. Tiw? fou>i that
¥fw» caaberked in Ihe Ttiarues is gone i*tt lu*r-
wick, where it ia Ut Ktay to serurt) the ton n«
and tho other fore<«, thatare uewly efltertai|ied|
are to continue only lor a mouth. This iooki
as if your frit^tid Laiherdale may within a
while bt:lel\ aaindted as the carl of Danby.
HiAsaiDir is almost every where dishanded,
oniastlue these that ufion this ooossion iu«
agsin takoi into pay, and the enuniries almost
every whme express Ihe u^aost haired lyala
theoi, as soon ns ihejr have laid down their
aroBSi. IlotiglBfl*s rsgimenl now iu Ireland^ as
ia said* hath ordfta to maidi inl» bcotlaud«
which giving {leopli! nonsioii l«» lalik of ibai
country. they say that the king hating lately
plaisad me gfaalesl powem ia Uie tbr<ie kingf
deess in the hands ii' tk» three worst men that
eould be tutiud in tlieia, can oever he 11 laisa
oatii Ihey arc nil sacritiocdf la sjcpiale Ihe
TMr Ihe saidt IorJt*t?^F^
r of cause» to il
• I fir nou of Uiem
.w-,-u.... i, Ueuemll^ Justice
faults of the jcroverament, and appease tlie dts^
conteutii of the nation.
'* I told you in my last, that tlie duke of
Han'' : gone towards 8cotbtid, since
wbn :, , i»rt« bare been so various, thai
no nvMi ^^ t'A kimwff what to make of llml bust-
nesfi ; luid the ca use of t hi !3 uncertainly is impute
': ' i thekinM'*so^ersi,who iir
k'tisrs directed unto person
1
lh•^n they think
here '"> ^«t>»i
btou:
thcTi
with
that o V
. and as much honour, as ttio^e
> I ould shew unlo hint ; that the
oouiKnl lia%aii;beenimj|ie(liaiely calieil, be ex«
posed unto litem bis oomtuinaion, which was
very well Itkud ; that the chancellor invited
him Ut supper thai niglit, snd that he was the
next morning to go to the srmy» having tirsl
sent an express 19 the lord litfico, that com*
[nauds it^ no ways to engage in any action
before he corpes. Soqae tJiutik that be both
the convontiri^-iueD at an advantsge, and will
pursue it to their destrucljou. Others fiay»
that u[M»n the extreme avemon that is !ihe%vn hU
over England to a war in Scotland » and tho
tittle prub;ibilil) yet ^ippei&ring of the pai JijL% ,
meat's being atiy ways ^gMgeshle in it,
hath reoeiveil much miirt^ k;cutle instruction^
and tnttuds by the li lard Mrlvin, 1
compose thoiie basin • cau ; ^md If
can accomplish it, w i ' \ rondrr hiiu^elf
very popular iu Kng! c(>tland.'"
** The duk^ ll^iuiUuu and sooie other
Scotch lords having let his majesty know that
the disorders in Scotland proceeded only front
the ejttieine presiiuri^^ the people were brou^hl
under, by ih^^e who, contrary to law» abuseil
tike (>Quer his maji>vty had trusted them with,
did undtrtake to hutkik uU without bh^"^ 'i <'i>|
would be pleaiied Ut eas^* them of i
&urt*8, and, retuobing those who hviu v,.,,^,4J
them, put the goveruuieut ol th# kingdom inl(_
Uie hsuds of such pcrfions as w^e w^llf
t^lstksing unto the nation. This having b<i^
taken imo consideraiion for eouic days, tli,
duke HumihiHi witli llm re^* «ml one l./ockr
hart, were se^it for by the kiogi whoto^d th«;iiif
the points fortuerly spoken of did irlaio uuti
his prerogative, which in thrre points he wuuL
nolsuirerto bt^ ttiuchcd '. l«l. Thai 1 '
a right of disposmg of all placcri^, in
^kscitaie such peiiM>ns aa he should uiiim
2dty, That it belonging to him to prrvt^ul
conspiracies, he might bectn^^ im'I •<■
aim sus^teid persons ; and (h
au^h thing us a Habeas Corpus r i
shpiiM he AS long as he lived t
biiog hii j[4ut iu pmvcut ur to
S6S]
S3 CHARLES II. Proceedings ag^mt ike lunurkshire Men, [2G4
Clerk, and Comnaissioners of Justiciary ther-
for, be tlie moulh of James HearysoD, macer
of court, decerned and adjudged them, and ilk
«ne of them to be outlaw a and fugitives free
he might raise such forces as lie pleased,
quarter them where he thought iit, and em-
ploy them as occasion should require. To
ivhich Lockhart replied, that the places in
question were those belonging to counties and
corporations, which had ever been chosen by
the people respectively according to their
charters. And as to what concerns conspi-
racies and rebellions, he thought he could
prove, that what his majesty did assert did
neither agree with the laws of Scotland, nor
any other law, nor the ends for which that,
or any other government was constituted.
*' The next point in discourse was concern-
ing some articles exhibited against Latherdale ;
in which it is said, that'* his majesty for se-
veral years passed had been utterly misin-
fomieil, and never known the truth of any
thin;;: relating nnto Scotland, hut been guided
by such reports as best suited with Lathcr-
ilale's interests." That he had been thereby
induced to bring down the last year that army
of barliarous highlanders, upon pretence (»f mu-
tinous and seditious field-conventicles ; whereas
such meetings as had been, were modest and
quiet ; and quartered them in those countries
where there never bad been any at all. Se-
veral other misdemeanors are said to be men-
tioned, and amongst others tbot of Michell, who
liad been put to death atler having had a pro-
mise of h'te and limb, by false oaths made by
Latherdale and some others of the privy coun-
cil. The conclusion was, the kiiicf commanded
the duke, that these articles should not be made
|fublic. In which he excused himself, foras-
much as having done nothing in the dark,
several copies had been taken, which were
not in his power. Some say, we shall this day
see them in print, with the declaration of the
<:oiivcnticle-mcn, printed at Glasgow, which
is very well worth seeing. The forces of
these conventicle -men, or as they call thcm-
selvesjthc western army, are variously reported.
Bofiiesay, they havo 14,000 or 15,000 men ;
others, that this day was a sennight they had,
not far from Sterling, between two and three
thousand horse, well armed and mounted,
with about the like number of foot ; that a
brother of the earl of Galloway was coming to
them, and within three hours march, with
above four hundred horse and foot, and that
they had parties oi* good strength in several
other places. *'
" A Courierarrivcdthe last night from Scot-
land, who brings word, that the duke of Mon-
mouth had attacked the conventicle-men, and
easily forcing a little barricado thry had made
to defend a bridge, had utterly defeated them.
Some letters say, two thousand are killed lipoo
tiM place ; but ny lord Sunderland tells me
4liere is only some hundreds slain, many taken,
#sd ilia whole party dissipated and .destroyed ;
his majcstie's lawes, and ordained them to be
putt to his highnes home, all ther movable
goods and gear to be escheat and inbrought tar
our soveraigne lord's use for ther contemptioo
bv which means it is said, that the duke of
Alonmouth will have made himself as popular
in England and Scotland as the duke of York.
Men here will be startled at present, but that
will not hold. The Scotch lords here have
been so wise as to leave their countrymen to be
cut in pieces, but (as some believe) not enough
to keep themselves so free from corresponding
with tliem, as not to leave that, which being
well followed may bring their heads to the
block."
** The news concerning the Scots, mentiooed
in my last, is oon6rmed by several exprenee,
and all shew their defeat to have been entire,
the party dissipated, and tlioce who escaped the
fury of the sword remain exposed to the dis-
cretion of their conquerors. 1 iind men's judg-
ments as various, as to the nse which will be
made of this advantage, as of the dnke of
Monmouth's action in what is passed. Some
did tliink that they being a poor people, brought
into despair by tiie most violent peraecutiOD,
Eitied by all both in England and Scotland,
clped by none, without head or conduclff wers
to be spared ; and that in doing so, he might
have made himself very popular in both king-
doms, (which he is thought with reason muoh
to desire) and best to have provided for the
king's interest. Others, who look upon it as a
fine thing to kill a great many men, and believe
monarchies arc b^ kept up by terror, extol
the action, and say tliere is no other way of
suppressing oM rebellions, or preventing- new
ones, than by force and rigour ; looking upon
Caligula as a great statesman, and odfrint dwm
metuant as a good maxim. Some think tint
the duke of Monnioiitirs first instructions were
according to the first of these ways, hut that he
\\as followed by others, which savoured muoh
of the second ; those that were of tlie first opi«
niou, do now think the best way were to com-
pose tiling there, and by shewing indulgcooe
not only in sparing those that are oboozMMn,
but in giving them such indulgence in mattcn
of c<>n!«cience, as may satisfy them, prevent die
like, and please the iKnly ofthe Enttiish nr'^~~
which hath given many tokens of being l
concerned for tiiem. On the other side, 1
are not wanting who think the best way to
bring that stubborn people into /subjection, and
keep them, as they call it, in peace, free fran
rebellions, is lo use the utmost rigour upiB
those that are in their power, and to diseaver
who did in any measure assist or abet tben ;
and in order tirereiinto the prisoners ar& used
most cruelly, and it is said, that at the loask
forty of the most noted men amongst ^theat
shall be put into the bouts my lord of Latherdale
hath brought into fashion, to make them dis-
cover what correspondence the great bmo
held with them. 1 know not how & thia may
coooeni some tbat are, or ktely hare I
«ei5!
«TV(J iljsr* - '- "^-^^ wliicU WM prrmuncrd for
tkoui. L*o1luck, Kuiilht ui Hnmilton,
JoUo Al.i,.. , , ... iiVaursliuui^li; ilixMn Hamil-
ton, of Meadowcs ^It'iiii fit ay, son to James
Omy 4l<iei\ i»f CUry^Uiiin ; iuh\ John HprciiU,
BfijitUh^cnry it» (iliistr«^v<?, "wiio are c«»utairved
in tlic- lybt-fl, WW r»i»l t'H^*ii, tl^e said Juhn Grny
was allijudged ti» bo di'itd, atid Johit Sjjreull bi^-
^u^ a (iristitif 1', was continued till tlie eexl oi'
iuoe.
Dyet coutinu(!(i till the 17tU tDsl.
17M jUarcA. lOBl.
The Wlid day rompeii'ed G«irjfe Og:ilhie,
Albany hrratild ; John Uoodiiib», Robert Lee-
kie, WiHiiiiii Rcid, John ScoU, and James
Smith, wiiiit^^^'s, ihHTl in his execution, und
made fhith uf»on the triilh and teritit* oflhe
r^.'. iiii.iM oil.. 1, if) !.^riiii.i>,t the rebdl heritors
ilk ts.
1 ik instruments ufiOQ
produelum aud venticauun of the executions,
and thai the letti?rs %ver exccut aifaiuesl ihu de-
fenders at the marcat crocc of Edinhurj^h peir,
iuid «hore of Leith, u|Km thri^Kcurcdavei warn-
ings and at thcr d%velhng-hotsbeSf and th^ mar-
cat cros<*s of tiie headburi^hs of the shyie,
hut it is urobahle enougli they may have the
fortune that ordinarily nccompaniex thifni that
prelendiu;;^ Uylni very Bubtilu und keep well with
both KidcA, eier to do Uwi riiuch or tiio little ;
aiid that whereas they might have prevented
fill tntnitlts, if i\wy had codeavourcd it, by
deiiyiog" all manner of favour to the diseon-
t<^nted people ; or reformed the state of that
Itingdom, if they would have taken the cod^
duct of tlieni, and very well provided for their
ovvn intenst by either way, raay have ruiued
these p«>or people by stirripi; them up, and
leaving them to ihemsclves ; brought tlie whole
tiaiioD under the poiver of tbcir enemy^ and
given such advantages arraitist themielves, as
may be their ruin, if they are pun»ue<l ; that
iSf to perish or be saved by the mert-y of him
they [irtite«» to abhor, Iluke Hamilton com-
plains he is ruined hy thi.^ business, and that
not only all the prtivisions of victuals and
corn and crnuis upon tlie g^round is destroyed,
hut that there is not a cow, one horse or sheep
leH ujkon liis whole estate; and hijs own house
had been plundered, if the duke of Montuoiilh
hail not sent an o^ieer to pretierve it. But
Xallierdih; aayt » he cannot U lieve that Hamil-
ioit*t fHcndai tenants, and servants, would so
fat forget their depetidenfe, oUliguiiouii and
MkI oianueTs^ u to deal uncivdly wiih him.
dlewailric, regal itie and other jurisdictmu whcr «
they live, upon Jbnrlie dayes by a heraul(t'
with dis)»fayed coat of urines una by ^und uf ]
(rmnpet, having :ind aifixjno' at the saids i^.
BipeiUive places lull doubles of the letters, won
be word, with lists of the haill assyscrs and
witnt^ses names lo be adduced againest the de«,
J'enderSf and uiteiog the other solemoiliei» re<^.
quisit.
Mr. David Thorit^ fo? Gavin Hamilton, of
Hill, ane of the defenders mentioned in the!
criminall letters raised a^'t the rebell heritor^.]
in Lanerkshyre, alleadifcs, that he cj*nnot b^
d eel aired fugitive ujion theexeculion producefL
because being pn">oner within the Tolbtjiib i
Edinburgh* and for fourlie dayes betbr hi||
ou;^ht to have bein cited at the Tolbuith an '
perionallie.
1. Takes instruments upon the executtOQg
which bears only dwelling house in generall^ana
upon the lierauld executer his judjciall rlcclitra-^
Liofk, that be did cite him only at hts duellini*^
house of Hill, and it is denyed, thai lb f sail
Gavin or his faiiiilie lived ther the tyme of lb
citation, but that then and for a verie lonsidf
rablc tyme befor bis wylf and familie lived i
8traven, which is offered to be proven.
Jmh a« arr.
itiuil a'; -
the ill
» those w ho Jnanaye hu»i-
^^itively of them, but 1
• rid my jiidernienl, until
lit cotne% hark, which is
expert
** It
tnuk.
»u ihd not know what to
-'t^in.ijit belbre you had
^ou weroas much
you understand that which I am ignorant of ;
and to say the truth, I am so ; a ^reat part of
our mO(iem prudence heini; to suppress in-
formations of the truth, which I take to be as
f:reat a point of subtility as that of one of our
friends^ who €0i3cealed'a ujisfortune befallen
him in the first acquaintance be had with a
woman, until he was Uke to fnll into pieces.
Some thiuk the great lords will be found to
have incited the poor people, aad then endea-
voured to value themselvi^s at coart upon the
power they had of appeasing them ; and if
that prove true, they may have the fortune
that ordinarily accompanies those that do too
much or too Tittle, and ray lord Laiherdale*s
boots will be o powerful means of di covering
whether this be so or no.'*
** The duke of Monmouth, before he canoe
from Scotland, had taken care that the Scotch
prisoners should be used with more humanity
than they found amongvt their (^^untrymeo,
and »inc4^, hi^ arriv al here, orders are sent to
cnlat^e the indulj^cnce granU^d unto the non-
conformists in their tneeiinjLf<j. The result of
(hat business, as far as I understand it, is, a
great many fools have hern killed ; tlieir blood
uef upon Lathcrdafc ; their folly and the
cruelty shewed iitito thein hath guineda preat
dedl of rompasMon for those that remain of
their party, which prol>ably will persuade those
in auluoriiy here to proceed more gently | and
that which is rea!.onable in iuelf, will be ren-
derfd alisolutely noceasary, if the parlianietit
be tiufieied tu Hit ; for unless they prot e to bf
of a temper very ditfereot from what is ejc-
pccteil, they will suffer uotbing tike unto d»ai
which hath beya,''
967] 53 CHARLES II. Procudingi agmmH th Lgnerkikire Men, [fGB
Tf>cai* beiD^ warrandit by the lords of his
majestie's pnvie counciil or thcsaorie to per*
■ewe tlie iMmnaUs, he is not obleiilffed to cud«
deaceofl upon ane informer, and mod that he
* Mr. Hume, in different parts of bis Coin-
mentariss, treats copiously of the powers and
duties of the king's adfocate. The l61lowip§^
pa8sa|re will furnish some insight into tbe His-
tory of the proceedin<^8 of that officer as publie
accuser.
*' Let us now attend to the circumstances of
a prosecution at instance of the lord AdTOcate,
the public accuser, who insists in the name of
the king, and for his majesty'a interest w the
execution of his laws, and in the tranoiiiUitT
and wiiUare of his people. This office, tLougtt
it probably existed at an earlier period, io not
however, inuch taken notice of before the be-
ginning of the laih century ; and the com«
mou account is, that it was first raised to its
present high privilege with respect to the pro-
secution of crimes, by the stat. 1587, c. 77|
which dechurcs ** Tiiat the thesaurer and ad-
vocate iMirsew slaughters and utheris crimesi
althaucbt the parties be silent, or wald uther-
waycs privily agree." But, that this is dqI
J|uite an accurate stale of the case, may be ia-
erred from a former statute, 1579, c. 78»
which fixes the penalties of calumnious |ife-
seeutioo, and provides particularly ibr the OMS
of process at instance of the lord Adrocale
only. <* And gif the king^ majestie's advoeit
be onlie pursewer, (says the act) his inforaiv
to psythe paine tbrssaki." Andinileed it is
obvious with respect to crimes of « publie
nature, such as treason, sedition, biaaphemy,
and many others, for which no private indi-
vidual ever had right to prosecute, that there
must always have been some reguhur coarse
and method of complaint, wherein Uie offenden
in that sort might be brought to justice. Bui
farther, with respect even lo crimes injarioua le
individnab, if they were ako of an intereeti^
nature to the public, his majesty, in our prae-
tioe and constitution, seems always to have
been esteemed a competent accuser. The
statute 1436, c. 140, has these words for thK
*^ Trespaasours may be accused at the king^
instance allenarly ;' imd it ordains (paneralhr,
** That aU maires and sejjeandes arreut at ae
schiriffis' bidding, albeit that na partie ibl-
k>wer be, all trespassoures, and that the laid
scfairefl'e follow the said trespassonres in the
king's name, gif na partie f<4(ower appeeris.'*
And again, a still more ancient statuu^ 14M»
c. 20, etttitlcd,Of Murebuming,has this ffT|n«Bi
provision, after fixing the penalty of the tra^
pass. '« And gif the lord of the Und iwae
notsik pain, nor punisbis notsik tresnessonwi,
as is bcnir said, the instice-clerk, be the i»-
ditement, saQ gar sik trespassoures he one*
rected befoir the justice, and punished as mui
is." in these words, we have a hint ef the
course in which this sort of business was i
pmpaied, and wiiioh aoesidmg to tlie v
■eneiofoarsliMciofthe tiftecnlfaianl
His Majettie't Advocat replyes. That 1. he
oppons the execution, nor was the kin<; to take
notice of his being prisoner for a cry me, it be-
ing sufficient to the king to consider his dwell-
in<^ house. 2. This reaves in a defence, be-
cause it is ane exception upou the uulitie of
tlie execution, and consequently cannot be
pro|)oned for ane absent. 3. In fortification
of the cxeculioi), offers to prove his familie
lived at Hill a quarter of ane year befor.
The Lords finds that this defence for Gavin
Hamilton, of Hill, resolreing in ane nuUtie of
the execution, and not being ane essonie or ex-
cuse, cannot be receaved unlesse the partie
wcr present.
Intran*
Hohert Trame^ in Lanerk
John Scolt, elder, in Keumuir
John CorsCy in CUdsmilne
James Thompson, ponioner, of Gamqnen
Akrandcr Wur draper y in Shctletoun, portioner
of ^iidlequarter
David Lindcsay, portinnrr of Jacktoun
John Nhnmi, in the Forth
Geonjc Muirhcad, of Steinstoun
Archibald Cieiland^ of Knowenoblehill
James Hamilton, of Halsyd
Jahici liumilton^ of HiovXioAX
J oh A llohnes, of Newtoun
Jlotcrt RussiHy portioner of W indie-edge
Hcnrif Bnsicell, portioner of Dunsystoun
John [T^ar//ro/;er, portioner of Denishill
James Meik, portioner of Fortisset
Archibald Frcntise, in Staioe
James Muirhead, of Breidisholme
Mr. Robert Black, of Silvertounhitl
Indytcd and accused for the crymes of trea-
son and rebellion at lenth mentioued in ther
dittay.
Ptr5faf«r.— Sir George M'Kenzie, of Rose-
haugh, our soveraigne lord's advocat.
Fro^rs in defence, — Sir Geo. Lockhnrt, Mr.
Wm. Fletcher, Mr. William Hamilton^ Mr.
John Kincaid.
Sir George JL)ckhart as procourator for
Breidsholme and the other defemlers craves
they may be putt to a present tryall, and that
his "majestie's advocat may condescend upon
ane informer in regaird that the persuit btnog
for treason the act of parliament is mqst clear
and positive, that whoever accuses any person
as suilty of treason, in cace he succumb in the
probation he is lyable to the paine of treason,
and a commisaion from the counciil or thesau-
rie in gcnerall termes is notsufficient.^
His Majesties Adtocat declaircs James So-
mervaill hade commission from the lords of
the thesawrie to go unto the countrey, and
take information againestthe pennall.
The Lords Justice GeneraH and CommisMSB-
ers of JiMticiariey find that his miyestifls nd-.
^ 9n§h% t» inftsttpaHrill soch ttf the ii&nnnns,
WWMM itMc wiitieifef ooottiaed ta tner ll^tit
ire ftll preiCDU and oompdring.
Irit^ fi'rnh Jusitcc Gencf nil, Justice Clt!rk,and
Co 1 1 ■ rs of J usliciar y, of conienl c^f hU
1 u ;i ; . ivp. \ ^ n n*\ for ^e ^r e rait rit lier causes
ftiiii C'JLJ . -,■■'.■ 1 iV ■• ^ * ,'.ik1
he t!iir j 'S
Vl the sntus jtir»eii i r ^nii, ^«>1iq
Ccireei amt remnant ptiii > nanied, and
ifi?5f*T' r-^- f' r - i-^mgor i.tnt;i».H|4 of i\ny n«we
lei h jii for the eiymes almve spe-
•^ If |,i :;^ ..iie rxpresse v^urraud from the
nils in prtsaitiiSy whcrupuD the de-
iifid tlier pracouj-ators alxivt^-named, ask-
eti and iouk in^trunieaiiq, and pmtested fur ther
cauiioners rtJietT^ aod cra?fd ther Utmds of caa-
tiOTi riii|f!jt be dtly?erctl up, which proteslntion
aiient the cautioneni reliefr, the saiils lords ad-
tnitttd, and herhy adtnitta, ond ordaiues ther
' ' \ cautioners bonds to b<i giveo up.
Kis MajU^ie^'t Advocat Heclairei he BhaU
rtnaiat agiineit any of the dettuders aa to
Um tlMf dyc't 1! deserteil Y ithnuX a apeckU
Fraud from the privie eouuciJi, condescend-
ing^ upon ther tiames, surename^, and de<jijriia<
tioDs, wberupon air Geoj^ Lockbart and Mr.
VViJIiam Fletcbcr, adrooata, asked aod took
iastrumeiita,
^^d'he Lordi contimie the dyetminest James
^^poatyoe, w right ia Luierk, John Robert^
^Ki weaver and portiunert of Hbetleatoutif
Akxander Murray , ot Westouohead, and James
of the iixtecDth century, appears to have lieen
Ihvrn t that alkr iiifonoation had been taken up
in the several counties, aoder tlie hricTe of
dittay in the luaaaer fbnnerly detailed^ the
ju*itice< clerk, at the oommand of the justiciar,
]«iaii«^ up fn>m those materials, what ^as then
caUed the l^ortiious Roll, aad Traistis \ that is a
toU of the names of the delinquents, and a file
^todiotaMnts agouti them, aeoommiidated
!ir wwpcetiye cases. And with the nme
also, to cirpede the ncecsaary pre*
the thai of ttiove eiuurg^B^ and to
Df nis nrflcrs ta tbecrowncrB (for we too had
Ibia effice imneH/ ^uGfh now lon^ liisused)
H^iedermrr-*' •■ -- ' ■ -^ ♦liem in ward,
lurerv frt>ir appeamnce.
^pemrmii » \»hethcrwith
l^llie start yrcs, or the trial
a! crTmf-i , "t illiTt*; *"vt TMin-
t
i-i ue, thul lu train-
► insert the iianrie
•cate, nor of
! such eoo'
■ ' dtfwnio iHt^
y.asappeani
J iiom the *ery
> MockLiizii^ has
tit, 21,
^ othff
Wilfoii, ta Ridj^'ehpad - '^ ^' ' j IT, who are in*
d>ted tor the said il :!t the a<x-otKl
ftiomlay of Jttut ulxi, .ik^i . i uiaiii«s Uie dyel
a^atniTi^t Jaaoes Lot k hart, in Hamilton, caAtd
laird L>Qfkhart, till the Kxt duy of ApryH niict«
and ordaines them to Hntl caution tor thee
appeirance at these dyetSi under the painei
contained in the newe acts of parliamcnL
A DfiSATB,
Sir George Lockhart^ for the pacmalb, aU
leod^cs, that they having- Bdduce«l a great
muny witneases tor proreing of the g'rounda
of ther ejicul|iat<on, and the dyet being i;on-
tinuctl m that the paiinalU moat compeir op
undeiipfne the oertitication of lawe, they ther-
for crave aooordingfto the opinion of lawyers^
and particularli© Matheiis iu his Utte dc 'pro-
baliouu Innocentifi^, ClivruF, Que^t* 53, and
others, that the Hiinesses of ther exculpation
may be examined to lye in * retentis ad futu-
' ram rei memoriam,*
Mr. William Flrtcher crafCB the like for
KnoweohleliJIt and others, as to whotn the
dyet is deserted upon the gToumJs fcirsaid.
The Lorda delay the examination of the wit^
oesaes ol' the cioulpation till tlie dyet of coo-
tiuuation come, and ref U!ke to examine witnasaai
wher llie dyet is ileserltd.
The said day Jatnea Hemple, maltman, iu
Hamilton, gave* in presence of the saiiU Lorda
ane Petition .sig^ned ht' him, Showeing that be
was deephe sensible of his high mislbrlufie in
they had hee^ hronght into court, it waa th#
duty of the lord ndvocale to insist on^n kim.
port, and bring them to an is^ue ;
account, even in 1 he oldest books of ;i u , < ,
he is marked \nihepnrtihu$ as counsH ior tlie
crown (for the Pet^ewar, Advocntui^,) in like
manner as was practised with res(>ect to the
counsel for the accused. In effect, tliereforeg
though not formally stated as snch in the
charge, the lord advocate was prosecutor for
hismajeffty's interest, and was master of the
instanoe, which he mttr^ht deaert, or restriet, of
bring to;in issue, as he saw cause. And thuS|
Xn the wholft 1 think it prohable, tFiat the
rementk>oed act of Jatnea 6| which allows
the lord advocate to pafMii llMNlgll the party
injured be silent, is to bt nodersload of thnf
foroi of pniaecotion only, wherein the imlivt^
dual oaast Uavc insUttd - tirunt^y by summootf
or cr till inal letterst ^ h 'aaio ^ aeon^f
plainer is engroaacd, — tha acoUMl ¥§
a particular day of trial, iiat whether 1 ana
ri|fht in thts conjeoUire or not, certainly dMt
statute must have added la Iba wcigbt mA
consequence of fkm offiadi» who aaw vpvaiM.
sustained the peiaon of hia m^OBty, tmA wtMm
ed the law in this interaatiii^ departiaaiitf It
ia laid aooordin^y , that aoon af tar thii nanod^
ns* iM tha tHal of Amot of WoodmUa, Nov. 3,
t598,iaibefii«ttiiataiioaaf hiibaiag wamktA
in the raoord undertbe lilk of l«Pif A4toail%
wlikh ka has t w mm NtalMa.** !
»n]
33 CHARLES 11. Proceedings againtt the Lanerkahire Men, [27?
having' wandered from the road of his loyaltie ,
and duty towards his soveraigne, in being led -
on to a rebellion agaiueat the king and his
authoritie, and for which he confesses he de-
«erveth the greatest severity the lawes cane
indict upon such ane delinquent, and as he
hath a true sense of his cryiue, so he does in-
genuously declaire howe long he continued in
it, which was from the sabbath night efter
Drumcloge untill that rebellious attactque upon
Glai^owe ; and having that same day returned
to Hamilton he did present his majestie's pro-
clamation, requyreing the rcbeJlsto lay down
tlier armes, and did detaste and abliorrethe
cryme as much as his misiortune, and us to
which he pleads his guilt and not his innoceii-
cie, and throwes himself upon his majestie's
clemency and mercy; and as to his future
cariage, dureing that horrid rebellion, he did
demaine himself peaceablie, and followed his
ordinary busienes, which he is able to makeap-
peir by the most famous and loyall persons
within the toun of 1 lamiltoD, and as to which he
hath cited \\ itnesses, and he is content, as a far-
der proof of his sincoritie anil devot resolutions,
to live loyallie, to take such tests as the lawc
reqnyrs of good, and faithfull subjccttS ; ther-
for crarcing, that if the saids lonis examine
witnesses, they would examine them as to his
guilt eiler the attactque at Glasgowe. The
whiik petition is subscrvbed thus: ** James
SempU."
The said Jamest SempU beiug entered on pan-
nail declaires that the Petition above written,
presented in his name, is subscrybe<1 be him,
and he acknowledges the lybell, and comes in
will, and declaires his sorrowe for his cryme,
and is content to subscry be the declaration and
to take all the tests requyred of the kind's
subjects.
Sic Subscribitury James Sempll.
The Lords continue the dyet agalncst the
said James Sempll till to-morrow.
The said day William VVilkie, commissar of
Lanerk, and Thomas Stodhart, commissar
clerk ther, being oftymes called to have en-
tered and presented David Whitt, smith in
Lanerk, and David Gibson ther, befor the saids
lords this day and place, in the hour of cause
ther, to have underlyen the lawe for ther rysc-
ing and joyning in amies with the rebei'ls in
themonethsof May and June 1679, burning
his majesties laws and acts of parliament at
the marcat croce of Kutiicrglen, orowning out
boncfyres, sett on in commemoration ot his
majesties happie restauration ; resisting, feight-
ing, and opposeing bis majesties forces at
Londoun hill, Glasgowe, and Bothwel-bridge,
and committing the several other acts and deeds
of hye treason and rebellion, at length men-
tion^ in the criminall letters rais^ at his
majesties advocats instance against them, and
aeverall other persons tbereanent, as they who
became cautioners and sovertie acted m the
lipQki ef adjournal, coqjuiictlie and aeYeraUie,
for entering and presenting the nids David
Whytt and David Gibson to the effect fomid
lawfull tyme of day bidden, and thej not en-
tered nor present, and the saids persone nor yet
they compcirand ; the lords justice cleik and
commissioners of justiciary therfor, be the
mouth of John Mckenzie, macer of court, de-
cerned and adjudged the saids William Wilkie
and Thomas Stodhart, cautioners forsaid, to
be in ane imlawe and amerciament of fyve
hundreth racrks for not presenting ilk ane of
the saids David Whitt and David Gibson, and
also decerned and ordained the saids persons to
be outlawes and fugitives frae his Majesties
lawes, and to be putito the home, and alt ther
moveable goods and gear to be escheat and
in brouq;1it, to our sovereign lords nse, for
ther comtemutioTi and disobedience, which was
pronounced lor doom.
Uamilton and Thomson delayed.
The IiOnl.4 Justice Clerk ami Cororoissionen
of Justiciary for several causes moving them,
delay the try all of James Uamilton, of Pryor-
hill, and Johu Thomson, carficntarin Ijauerk,
who are indy ted for being accessorie to tkc kte
rebellion.
The said day anent ane Petition presented to
thcs;uil lords in name and behalf of Alexander
Hroivn, in Lanerk, makcaud mentioiie, that
wher the supplicant being chaleuged for bein^
at Bothwel-oridge, and cited to compeir befor
the snidslonlsin ane court holden at Glasgowe,
in October, 1679, he did compcir personallie,
and entered himself ou pannall, and declaired
he was readie and willin*; to abyd ane legall
tryall, at which tyme the saids lords in re-
spect of his majesties indemnitie, and of ane
declaration under the lord Carawatha hand,
bearing the supplicant to hare taken the bond,
duscrt^ the dyct siinpliciter agaiuest the sun-
plicant, as the act of the said court, under too
hand of the clerk therof. given in with tba
petition, bears ; notwithstanding wherof, the
supplicant in a short tyme therafter was ap-
prehendil be Mr. Wiliiam Ferguson AiUeadgiif
him to be ane heritor) imprisoned, and Ma
goods scazed upon, and disposed of at pleasure;
whcruj>on the supi>licant having made applica-
tion to the counciil, the lords of councill did
recomcnd to the carle of (jlencaime or lord
liosse, or any one of them, to make tryall ef
the supplicants condition, and if he was ant
heritor ; and the lord Ho^so having accordingHa
made tryall, the lords of councill upon his re-
port did grant ordor and warrand to the magis-
trates ot Lanerk to sett the supplicant at
libertie, as the act of councill made therancnt
produced with this petition testifies, yet never-
thelcsse upon some misinformation or ratlMr
mistake, he is yet fardor tn)ubled and con?eiiied
befor the saids"^ lonls upon ane citation at hk
dwelling-house, the supplicant himself bcHtf
absent and abroad, and knoweing nothing «|
the affair, conceaving himself in securitie —
the forsaid act of councill, wliich
upon the lord Rosse his report,
fur ibe saids lonls would be |»leaseil \m talce
tlie premises lo cousidenLtiou, and Ijkways
c<)nKidt;r the c«»ndiii9U ot' the !JU^i|ilic&iit, his
I W^ff and numerous fumilie, who is iiowe tra-
^rgtlin^ tibratid to miike up that losse he liaa
Hhaineij atreadie, and to sutislic his creditorfi,
^^Ibriii he ta «iii much coi^ai^ed, and that he
' can Dot but he uttcrhe ruiued if the dyet he not
^d^erted, or the su{>{>licuiit absrtlfed, ii$ id jus-
■I^Jie ou^hc lo he.
^fplie Li >rd!> Justice Clerk And Commissiooers
^Rusticjury !i ' ' "- peliliun with
the act of c«i' nrnall abcve
ineuiionod, tSit > Mit-i<«»r.n cMu^mLid' his ma-
je^tiei ndvocat excuse the petitioner's absence,
«nd de5ert!itbe dyet siitipiiciter, and dl^ichaigcs
all newe leU^fJi, except be a war rand in j/rc-
fittt
lotmn'
if-
^ohn Witliamwn^ sod l<i Mongo WilUamson,
Itor of tlic htnds nf HoU.
^ohn Wiihmn*fm^ son to Robert Wilhumsont
ed lord Hhortcteugh,
^ohn Spreutt^ son to Mr. John Spreiillj
wriltcr tu Gfasgowe.
"Utiiam Tutdatf, son to VVilliniD Twedale»
Balyie of l*«nerk,
^avid R'jbtrtnon ther^ called Possie by iiick^
pe.
%vid lF<c*>, son lo Weir tlicr.
"iaracf H''fl/frcr youn^r of Ualk*.-tburue«
ndytvd nod accui^ed for the cr\*me« of trca-
I and relH-Hion, at kng^th meotmned in ther
ay ut in die pi-ecedeote.
?ertactr.< — Our sovereisfD lord's adroeat.
Mr. Cofin M* K'f nric, advocat, as procouralor
for John VViUiAmftun son toMungo Wdliiim!»on,
heritor of the bndf uf Holl^ aileadc:^, thut he
caiuioi jLjoe lo the kno^Oetli^e of uue inquest,
heinq^ hut only the eldest «on of anc herilor^
VfUo hh'i Liken the benefit of Uis inajtisties gra-
cious act of ludemnttie^ and hh father is alive;
and r«'|icifn the «aiue defence for John William-
•on^ son to Robert ^Villianison^ iiiShortcteir^h,
and for instructing^ of his defence^ product d
ceriitk-atfi under llie hand of the carle of Curn-
ivalli, who v%n.s eurnniiK*»ionat by the lord« of
hi^ ; ■ ' • .fill, to take the bund ap-
|w) - iudemnilie, from such
JK' . — itc sbyrc of Lnnerk» and
Wi 1 1 in the late ttl»e[lion» the nhilk
w^ii ^ of the dnti- the 15th of Smi.
leuiber 107^. Mr. Colin f\|*Kenzte rffpeits lite
•ame defence for J ai ties >Vulk*i. v^*ii»U'^^t, 'if
Ualketburne^ and produced
tif»un« undi'r the hand of Mr,
olerk to \m m*je«tie» pnvie couiriU, !
tH^ht of I'Vbruarv laiit^ b^^ariutf thai !i
tak* [ John fliirp^'t, n| t u;ij
bu^ K of Lanerk, upon the
ichvnin or Mt 'tiubcr lant,
|r Jvhn Hifcnid, ndvncat, rcpcit»» the same
acefi»f J"' '.nd proi|uce»
'act of COL, . .!i of hK^ptetu-
fOL. XI.
I, tf. !©8L
her, 1679, bearinc' *li +♦ i'^ lii.l*! tmnTnl ^tl.tr./LT,
ed and in acted 1
not take up arrrt' _ , ..s
authoii^'e, cotdbrnjeioiue mdeninitie, and that J
he was therupon »ett at Uberfy by ordor of the
privie cQuucilL
Mr, Jofin Menziei^ ad vocal, repctts the sam#l
defence lor Duvid Huberlsun, Wiltratn Twed-
dale, and David \Veirf panuall^, and produced
ane testiticat, under the hand of AVilliani
VV i Ik ie, commissar of Lunerk, and ane of the
sheiifTdLpuU tlierof, cert dicing and declairin$f
that the said Jiavid HoUnliioti did, upon tlitt
IHlli ilay of February \i^i^ conijuir belivrc hiui
anil declair^ ihut he was »orie that lie wai^ iu-
(fadgr*d in ihe late rebfdlion, and htindxllo
craved the brnefitt of his majesties gracious in-
demnities and did si^ie the bond never to lilY
armes a},faincst hi$ mujcfitie or his authcitlie in
t^rne coming, which cerlificat is dated the »ai(l
IBth day of IVbrnary, 1681. And aho pro- '
duced another certificate under the hand of tha
8*d \ViHii»m Wilkie, dattd the Uih of March
last, hearing that uf>onthe last day of I'Vbruary
last bypast, the suid Willi:im Twedale, pannnll,
cotopeircd personallie before him and declaired
that he wossoriethnt he wa5cn4ifad|^cd in the late
rebellion, and liumblie crured tite benetit of hia
majesties gracioutitademnitie^ and did sigue the
bond ne » er to ryse in armes ai^aitiest his majestie
or bis authoritie in lytne comein^. And alio
produced another teslilicat^ under the hantl of '
sir John Harper, of CandmsncthaB, kuijfht,
sliirrilf depni of Lanerk, certitiein^ and der.l air-
ing that David Weir* son to the decrast Hugh
IVeir, mailman, burjjfes of Lanerk, diil upon
the 28th day of' February last bypast, compeir
befor U'dliam VVilkie, commissar of Lanerk,
commissionat be him lotbc effect underwlten*
and declaired that he \^m sorie that he wasi en«
f/adged intlie lute retK^lion, ai|d humblie craved
the benefit of his majesties g^raliouj^ indemnitie,
and difl signe the bond never lo lift aruiea
a^afnest his mnjf-stie or his authorilie in tyme
coming*, as the samcn certificat of the date tl>c
nynth of Match la^l bypast id itself at lengtli
bears,
HisMajestie's Adrocat of consent, flndi the
defence nlcvanf, the defenders rennncinjjf ther
heritage in lb fours of his majf-stte, as well
vvhfrofihey hade actuatl ri^ht, the tyine of
the rebellion or the right of apparancie'
Mr. CoUti M^kftiMc Tcplyes, that the defence
Atanda rclcvaul, in respect of his majestic's in-
jitie, which prmyd;* that nil persons, ei*
licse that are nctuni heritor*, should be
rulicd and rtmittcd, and for the furdcr
:je of \m leid'^cs* speciullte providn ami
(» 's that his jud^'cs Jthould not streaicli
» o their prejudice ; but ong-ht and
J nrrt til*' sanic in ther favouns ia
the mou ' way, so that from the
rerie propi i . word heritor, ane heritor
is undtr3too<l Lo U* he w ho is mfef^ and taiaedp
wbfcb i» not tbo cace of the paatialU
T
J753
33 CHARLES II. Prcceeiingn against the Lanerkskire Men, [9t§
His Majestie's Ailvocat duplys, that the tie-
9igneofthet»roclauiatione, and the words of' it
d<»e$ exprcsslie inrUid appeirand aires, whose
rija^lit when the cace of their succession does
exif^t, makes thein * iinainetcandempersouam'
wiih the det'u- rt and ipsojuie continues the
fatliers possession in them, and since the^ are
to renunce all ri^ifht they have to heritage,
thev must renunce ther rig^ht of appeirance,
and as to the effect of'tiie appeirance that most
be debateil svo loco, hut is not competent in this
place. The Lords Justice Clerk and Commis-
sioners of justiciary fiind, that the pannalls
ought only to reiiiuicr the henetitt of all lands
and heritages beliilicn in them befor his ma-
jesties act of grace, and not what did befall to
them be deccasie of any of ther predicessors
efier the said act.
18M March, 1681.
Intrau*
Jamr$ Muirhead, smith in Lanerk.
James SempUy maltmanin Hamilton.
John Scot, elder [tortioner of Udin^toun.
Wiilium WaHacCy portioner of Mainhill.
John Afarshullj fewer in Hamiltoun.
James Young, of Peilhill, prisoner.
Indyted and accused for the crymcsof bye
treason and reliellion mentioned in ther dittay,
which is booked the 14th instant
Peneutr. — Sir George M^Kenzie, of Rose-
haugb, o0r Soveraiguc Lord's Advocat.
Procurators in Defence, — Sir John Lauder,
Blr. Colin Mckenzie, Mr. John Menzies, &c. .
The said Advocats, as procurators for the
said James Young, of Peilhill, declaired, That
he being apprc;hcndit and comnutte<l to pri-
sone within the Tolbuith of Glasgo\Te, and
therefter transported prisoner to tbe Tolbuith
of theC^anuogat, wher he has lyen for a long
tyme, though he be altogithcr innocent of tbe
crymes above spccifit laid to his chairge, he
offered himself now readie ami willing to abyd
ane legall tryall therfor, and dissented frae all
faider continuatiou of the dyet.
The Ixu-ds Juslicx* Clerk and Couuuissioners
of Justiciary, ofcoiist-nt of his ma jesties advocat,
and for se>eraU other causiitntoviug them de-
serted, and be thir presents deserts the dyet
simplicitfT, and discharges the laiseing or out-
giving ol' any newe IcitiTS againest the defen-
der for the crymes above spccifit in tyme
coining, except be ane expresse warrand in
lireseiitia, and ordaines the said James Young,
of 1*1 ill) ill, pannall, to he sell at liberty with-
<Mit ciiitiun. WhfTupon his procourators above
uameo. nske<l and t^Htk instruments.
The Lords deficits tbe dvet as to John
W'ilkie, elder, portioner of Cdingstoun, who
coiiipeiaMl and entcre<l the pannall upon some
mis'.ake and misinfsrmation to have undcrlyen
Ihe laue for the crymes of treason and rebel-
hon, nientioncd in the dittav raised a^nest
111* jrtbell heritoi-ftin Lanerks&ire, faia majestie^B
adrocat having past from him jadidallie, he
not being in the letters nor in the executions. '
John Marshall, writter, in Hamiltoao, paii«
nail, judiciallie consents, that ail of the wit^.
nesses to be adduced againest anjy or all of the
pauiialls be adduced againest him, as well 19
these contained in his list.
Sic Subscribitur Jo. Mbrsbau.
TheLonIs Justice Clerk and CommisskmnB
of Justiciary flind the dittav relevant, and re-
mitted the same to the knowledge of ane anyte,
as to the saids James Muirhead, James Sem*
p^e, John Ificott, William Wallace, John Mank
all, no we on pannall ; as also as to tbe remnaot
persons mentioned in thedittay, whose naitiei
wer contained in a roll given in to the aasyMi
and are mentioned in ther verdict.
ASSISA.
Alexander Hlair, merchant.
Lewes Jtdmstoun, merchant.
Thomas Noble, merchant.
Captain Johu Binning, vintner-
Alexander )k)thwell, of Glencone«t
James Balyie, merchant.
Mr. Andrew Temple, of Ravelrige.
James Baird, of 8aughtounhall.
Gavin Weir, of Dairy milne.
Robert Sandielands, merchant*
John Lindesay, taylor.
' Robert Eliot, wright.
Alexander Henrvson, 6f N'ewhaven.
James Gray, of Warriestoun.
John Dundas, of Ilarviestoun.
The Assysc lawfullie swome, no objectioik ia
the coutrair,
His Mujtsties Advocat takes instramenll
upon swearing of the assy se, and for probation
adduced the witnesses efter deponing, and
againest tbe said James Semple adduced hil
judiciall confession emitted yesterday in pre-
sence of the lords, which he this day reitefall
and renews in presence of the assyse, ail
comes in his majesties will and begs mercy.
James Hamilton, in Hamilton, called NepMb'
aged tburtie-four years, unmaried, purged ttii
swome, depons he sawe John Wilson, portioMf
of Staniefiatli, wreitter in Lanerk, with tbt
rebelU several 1 tyuies in armes, ryding «•
horseback, with a sword and case of pijrtolli,«Ml
that he was calle<l a commander, and t\m ba
sawe betwixt tbe first of June and thedeftteff
the rebells at Both wel- bridge ; depons he tMia
Mr. Thomas Pillans, in Lanerk, in annoi wMl'
a tronp of the rebells that day the infiil waaal
Glasgow;
the
hart,
a small sword about him, goeing up and (
the toun with others of the rebeus dnraii^ tfal
tyme forsaid ; and the same tyme and plaoaht.
sawe Gavin Hamilton, of Hill, in ooin|ian
with the rebells, in armes; depont he IBM
Jaiues Weir, of Jobiisbill, coma abn^^at wU(«
for TVittsnn*
tiA of Ihe refa^lli:, i«>lio brought n cannon from
s, atul sawe him with llmt puriie of the
elTit that look dauti the n Ih^IIs UenKh at ll.i-
[iUo»t and (Ji^pons the aaitlJamei Weir Jis-
ary;ej a yi^uAi uiiou the deponent j dcpon««ho
ve John Hnddowc, in Douglas, tieveniU
^mes, in anne^, urih ihereU'lls the tyme far-
^d» and iliat ho Wris culti^d a cnptniti ; .ilepmw
aavre Jaiives VVhvtt, in lloiiju^hLSj twentie
net in armes^ rvding' with thu reht^tls thai
Ime ; deporis he sawe Williftiu Fatconui^ in
lamtlton, walkiti^j several 1 t^nie^ iti nvnk and
J w ilh the rthells, and he hade a hljuk i'ringed
fit ; dpjious he bawe Ilobert Fteyiuing', of
IjiJthrnfin, many tyroes with the rehells on
brsetiack, with butster, pistolh, aud other
nes, and savre J oh a Cochran, of Craigp,
ikways In com[»any with the rebelLs in armes,
1 John CardufTf tn 8traven, and John Whit-
ve, of Bothwi'bheills, in arroea, with the
J screrall tvmes, and ali this he aawe be-
ixt the ty me ror«aid, aod knawes the persona
bi hiOM deponed agatnesl parti cnlarhe, and thisi
^1 tbe trutn as he shall anitvrr to God.
K, Sic Suhtcribitur, J a. Hamilton.
^^iFi/^iaiTi Hamilion, Yintner« in ITatntltount
^Ved fourtie-four years, m»ned, purged and
•worne, depons he knowe« that John WtUon,
Tounger, of Sloniepnth, wreitter in t^nerk, was
to company tn annes with the rchells, antl that
he was a captain, and savre him severalt tymes j
aod lawe Mr. Tliofna* Pilhins, in aiineR, ne-
wenM tyracii witJi the r^trllii ; uud .sav%e Uoheit
liookhart, of Birkhill, in arniti^tiit)) tJie retiells
ia Haimltoun, ond Kavver;avin !Inniihon, of
HiU, in amies with the ri-belht and that he %rfls
at thb deponent'ii house isevenill lymcn witfj
others of tho rchelU; depons he sawe Jame.^
Weir, of JohiifthitU in nrmes with the rebcUM
rtyiny tynie^, and that he hrovij^hi the caniian
from the marques of Dou'^Ias Loa^t*, and that
lie took down the rehelb hrads at HainiUon,
^■id took ane liorsc from ih Ts Htable
^mt sahtMuh ni|fht tb&t thf \ wer as-
^ntlted at llruincloge, and Hilu f ^»hn
!Iaddow,in Onuf^ULS^ marme*^, v^ :iii^
at liamiltoD, and t« -• • - Mean » i,^j,..,mi nnd
oiMBmaudii a ix>p iiorw he«awe lii>-
brri Fleytuin^i ol . ^ f^u<l Inhr, ( uru-
duC in Htmirefi, in ul ^^'
v«rall tymea ; def)on« I on-*
f<»rBaifl8Y atid the tyme that he «aw tlirnt wis
ikireing^ the M-b^Hion, Wtwixt the fimt aniT
^* * \ M<;otid of June ; and thi* in the truth
b««KaU answer in God, nnd the plare uher
^Mwt tbem vtaa Hatudinun.
Sic Subtirtlntur^ \V n UAin H AMitTow,
John WiUon^ wreitter, In IfanuUoun, ageil
tDtie nyn yean^ itiarit!d« piirinHi and stvornc,
be Mwe Jiditi WiUuti, wmtter, in
, Wr. Thmn«« PJlff^fiH, Hidi<«rt Ij^ic'khan
BirkI ' ^ II, cit ilill, Jamrt
]i*<|shu .all innmiciwith
lb* Pdbtti* at UauulitJii au'l ^' ' in Muir,
•a4 iunm M'Uut»aitie wn*^ u Muck
first
I
air«^i
h4^1tfl
!infi
John Haddowe, in Doui^las, ryd like a eaptatu^
liprin the ht«iii «d a irotip «f ifie rehetU »*»ferall
tyme^, and aawe JuiiieK Witytt in Dotis^laii and
VVilliutti Falconnr in Uatnriton in armr-i with
the rct>elLs and isawc Arthur TnrbH exerrised
hy the relK-lla and in ther company, and wine
Itohert Fleyinini; of AiK^hintine several! tyn»e*
in armes wnh the rebclls, finii de|K»ns he sawe
the person ti forsuid^ with the tehells in unnefs nt
Haiiiittnn and Haniihou Mihr^ bctwict the first
and t IV en lie f^eeond uf Jnne 1679, and Jan
M'Quharrie wn*i in armes with the rehells, i
til is is the truth as he shall answer to God.
Sic Subscnbttur^ Jo, WilsuHE.]
Thomas Strintoun^ in IhimlUoun, ai»
tu#*ntie four years, uimiarried, pureed and
fiviorne, deponnhe sawe Janies Weir <dJ«dui9-
hiM, and John 11 ad do we in Douglas in armea
with the rebclls .it HamilUuiu inuny tvmc^. and
sawe William rafcouar and Aritiur Farbet iu
armes witlj the robells, depons he sawe Hiomas \
Patton at the obJ Kiik of Caaibusnclban in
ariues with the rehehi« nt Homiltoun. l>epimB
he sawe John VVhillawe in BothweUfiiells and
John Fatci-son, ther in arines with the reb^^H^
at HamdtQun muir. Depons* he sawe these pc
sons in annes with the rebells^ betwixt
fif^t and I wen tie second day h uf June ]<»T9, !ii _
kncwe ihcm parli<'til.)Hfe*and tins is the tiutb
as be sihali answer to God.
Sic SuhcribitHr^ Tno. STivtivsa^^. J
Jatfteg IWt in FlamlUouo, aged fourtic fi^
yeari, mai'iett, pureed and gwoioe, dcnoris
sav^e Jnme.s Laurie wreitter in Lanetlf \u tfc
deponents house, in Hiimiltouu in cornp:iiij
With two of (he rebeUsdiinkinij I he SalltJiinyt
ni^bt be for the defate at Bolhwelbiid^i^e, depo
he suwe Thomas Lauehlan, merchant in L
nerk ae?eia)I tytnes iu urines with the rebellsil
IlamiltouD, aud saw€ xllckunder A nde r^oi^
shoemaker in Lanerk, weveiall ti(ue* iu armf ^
with the rebells at flamihnun ar»d sawe Huj^li"
Somerraill of Urrats, jmd J*hn Hutcheson of
Harelawe, severall i) uie-s in arnios witli ll»it
rebellh at Hamiltoun and saw.ltdtu llsidduut,
and James \Vhytt in Douglas LiKkhuit ttC
HirLhill Kobert FIcymintr <if Auehinfuie uud
John (J<KThr»n of l!raiife, lykwiiys in armes
>^ ith the re {>elk^ depons lie NMwe «tl the forvuid
persons ui IJamiUoun tietwixt the first of June
that Urnmeto^X' tvuB ioUj^ht and the tweniie
seconil ot' June, that the rehells wer detkte at
Ilothwdbrid$(e and knev«e ikii ni jMriteuhube,
hutknoweanot if Juine* L»wrie hade aimes,
and thia is the truth as he ^hall nntswer to God.
Sir Sttbucriiutur Jai^ics Tod.
Jo fin Leckic^ raeasenjj'^^r in Tlamiltoun, ag^e
fourtie three yeai'R luaricd, purj^ed and sviortic
dt^pouK he vawe Thoiuan LuiiehlaUp Alfi;
under Andertion, shc»einaker in Lanerk,
arine<4 %vith tli# it*tie!ls NrreniH tymi^
llamiltouUf ami that Aleimtider Atideiitoti w«
;i lievtenant« nnd «iawt Jmt <•( Whi^tt r^ditif; i
Jidin llHihloweii troop, aud hiwc John Hu^ilj <
WipdbiU tt tinBUlw Mil liBnilipii'miiir t^
S79] 33 CHARLES 11. Proceedings agaimt the LanerkBhire Men, \2SD
gWSf shoemaker tber, all io arma with the
rebells, at Lanerk, the tyme of the late rebel-
lioD.
Sic Suhscribilur, M. CuFFORD.
James Crawfurdy balyie of Lanerk, ageA
fyi'tie-fyve years, pure^ed and svrorne, depone
that tlie day that Bothwel -bridge was fought,
he sano David Whvt, smith in Laiierk, in
arnies with the rebells, in Lanerk, eftcr the
delate; depons lie sawe Thomas Lauchlan,
and William Ferguson, in Lianerk, sereraU
tynies in amis with tiie rebells, betwixt the
tirst and twentie- second dayes of June, and
sawe John SScnipIe, mason, and William Ped-
zean, mason, in Lanerk, in armes' with the
rel>ells, several! tynics the place and tvme for-
said ; and this is the truth as he shall answ^
to God.
Sic Suhscribitur^ J. Crawfurd.
Jame$ Uautie, in Lianerk, aged fyftie-eex
years, marieil, purged and sworne, depone be
sawe Gideon Weir, gfune smith, in Laneik,
with horse, armes and ane carrabin, in company
with the rebells ; depons he sawe itobert Ha^i*
dowe, youngest son to Robert Haddowe, ahoe-
maker, with a sword comein^ back to lianerk
on the sabbath day the rebelh wer defate at
Hothwel-hridge ; and this is the truth as he shall
unswcr to God.
Sic Sabseribitur^ Ja. Haistib.
William Ihedale, late balyie of Leoeik,
auedfourtie eight years, maried, depons be
sawe John Jade, in Nemphler, in company
with some of the rebells in Lanerk, in armes
the tyme of the rebellion 1679.
Sic Subscribitur, Wiluam Twedale*
John Allan, in Hamilton, aged threttie eigbt
years, maried, purged and sworne, depons he
Kuwe William Park, fewar of Lairfad, in armes
with the rebells, within the toun of Hamilton.
Sic Subscribitur, John Allanb.
William H9attie, in Lanerk, aged twentie
four years, maried, purged and sworoe, depom
he sawe Wiliam Dick, in Lanerk, on hone-
back, .with a sword about bim, ry ding, with ifae
rebells, and sawe David Gibson, in Laneriri
rydin^ on horseback with the rebells, and
James Park, weaver, with the rebells iaai
armes with the rebells and -saw John CarndofT
in Straven, and Robert Stcill in Staine, in armes
with the rebells at Hamiltoun and Hamiltoun •
muir, de{>ons he sawe them l>etwixt the first
and twentie second dayes of June 1679, and
knewe them particularlic and this is the truth
as he shall answer to Go<l.
Sic Subscribilurf Jo. Leckie.
Bogcr Cleiland, in Lanerk, aged fourtie years,
mariecl, pureed and sworne, depons he sawe
Archibald Symson in Laneik, David Whytt
smith ther. Win. Ferguson th<*r, Gideon Weir
thcr, David Gibson ther, Thomas ln<;lis, shoe-
maker ther, all in armes with the rebrll$,Alex.
Balyie, in Lanerk with the rebells once but
not in armes, and sawe Alexander Anderson in
Lanerk, John Pumphray ther, John Jack, in
Nein])hler, iu armes with the rebells, and depons
he sawe one who was called Hugh Somervaill
of Urrats in annes with the rebells, and sawe
John Whytt of Neuk in armes with the rebells
and that he sawe them at Lanerk, Hamiltoun
and HaniiUouu-inuii- betwixt the iirst and
twentie second dayes of June 1679, and this
is the truth ns he shall answer to God, depons
be cannot wreitt.
Sic Stibscribitur, R. Maitland. I. P. D.
Gavin Monty in Lanerk, aged fourlie years,
unniaricd, purjjwl and swonip, depons he
sawe ^Viiliaiu l>ick in Lanerk, with the rebells
in armes in or about Glusji'owe and sawe Ar-
cl^iSald Symson in Lanoik, and David Whytt
smith tlicf, Thomas Lnuchlan ther, William
Ferguson ther, Gideon Weir ther, James Park
Ihcv, John Sein))le, mason ther, Hugh Ker,
Btm to Williairt Ker, of Bcdronald, Thomas
Iiiglis, shnctnaker in Liiiork, Robert Haddowe
youiigor in Laoerk, John Buckle ther, and
John Pumplirny all in armes with the rebells
betwixt the first and twtntio second dayes of
June 1C)7[>, depons ho sawe Thomas Hinsel-
wood in Lanerk, and William Pad/eau, niasun
thrr, Luke GrcinsliielU of Hojjsoastle all in
amies with the rebells and knewe them par-
ticularlie, and this is the truth as he shall an-
swer to God.
Sic Sitbscribiturf Gavin Moxt.
Archibald lUmelwoody in Lanerk, ag-ed
founie eij^ht years, maried, i)urijed and sworne,
depons he siwe ^Viiliam l>ick rydiiiyf out ol'
tlw t:i'j:) of I/mork, with amies at that tyme
tlr.; r. b.lls wtT in arnies iu the West and he
Ka\«i' ArcliiLald Symson rydini^ with armes at
I'lat tyme; de;)ons he sawe John Buckle goeini^
from tliciiuinOr Lanerk with arnuis the tyme
fors.Lid. depons he suvvo Johu Hulclieson of
Harclawe, rylinif wi:Ii annes from the West
lioiiK^wards the tyme the rebells wer In armes,
and [his is tlu; truth as he shall answer to God.
Sic Sub\cyifnlury AacuiUALD Hinselwood.
Mark Ciiff'ord, in lianerk, aged threttie
three years, niarietl, purj^ed and sworne, de-
pons he sawe David Whytt, in amies with the
rebelLs, in lianerk, and sawe William Ferguson,
Jjphli 8eraple, mason, in Lanerk, Thoinai In-
on foot, and sawe Thomas Inglis, id aro
with the rebells ther, and sawe John BueUc^
Thomas Hinselwood, John Jack, in NempUVv
William Padzean, mason, in Lanerk, all m
armes with the rebells, within the toim of*
Lanerk, in June 167£> ; and this is the truth m
he shall answer to God. . .
Sic Subicribitur, William IIuTlB.
Jama Sliman, in Lanerk, aged threttie njB:
years, maried, purged and s\%ome, depons oe-
!?awe James fjourie, wreitter in Lanerk, rydi
throwe the touu of Lanerk iu comany wilfa I
rebells, and a sword about bim,
HuD^h K.er, son to William Ker, of
ryding with the rebells in armes, in the U
Lanenc, the tyme of the rebdlion ia taltl
for Treasm,
T9; rodllmisidetrutb as he sbftU answer
Sic Suhicribilur, James Si^an.
Jamct Watmn^ taylor, in Lanerk* ageil
biinielhree years, maritid, ported and
worne, depons he sawe David Gtbsoo, in
Aoerk, in armes Hith the rebella, ryding
hrowe Lanerk in June 167^, and sawe Ar-
bibakl Sympion 1j kways in armi«« with ihwi
he Mid lyoieand place*; ami this is the truth
i be shall answer to God*
Sk Subscribiturt James Watsone,
James Wh^ii^ in Lanerk, aged thrctlie lex
Peai'jdy married^ sHome, depons he sawe Wil'
pnm i>ick, in Lanerk, iu armes in his retume
orn Bothwclhridge the <lay tJie rebells wei-
iefate thvr ; and thia b the truth as he shall
usM'er to God.
Sic Suhicribiturt James Wbytt.
_v——-ih Coupar^ mcssengfer, iu Kilbryd,
l sworne, depons he sawe John
|1 >,,*,.... ,;u, of Rogertouii, rydiug^ with the
ebells throwe Rilbryd, and a sword about him,
;f>er the «x»(iHictatl>rumcloge, and sawe John
A ilson, of Hi^h6ctt in ariiiea with them the
anietyme and place, and sawe Robert 8tei>
rin, i%;wer^ in New I and » in armes with the re-
A\% on Thursday efter Drumckige in June
1679, aud this is the truth as he shail answer to
lod.
Sk Suhtcribiturt Ji:remie Cocpab*
Wdliam Follock^ id IlamiltOD^ aged tweotie
^bt ycara, maried, purgwl and swome, de-
ns, he sawe Jamc!^ M'Qu hairy, of Scorie-
bolme, in armes with the rebel Is, m Hamiltouo,
ktidsawe Arthur Tarhtt, in llamiltounf and
CDavin Weathenipoon, of Qeatberie kaowe,
ohert Ooodwiue, iu Glas^rowe, a horseman^
ill in armes with the rehelts at Haauhon-muir,
ujd «awe John Grey of llum^avill^ aud John
""jitlawe of Uothwclsheitbi, \ViHiam Ward-
• of Wester C'aldcrhead, all iu armes with
' elU, in June 1679 ; and tin*! is tbelrutli
be shall answer to Gfxl, and depone he
«»wefl nothing a^ to John Marshal), in Ua-
Dilton.
HkHubtcribUur^ Wilem Polok-
JLohert Thontpitm^ miliar, in t^^mehago,
^ed Iwentie \h\it yeam, married, depons he
awe John Whylt, of Neuk, jo armes with the
ebetls, betwixt LrsoiahaGTo and Hcunilton* the
I of ibf r«bpnion» Mwixl the first u\i
r and twitttie seeumi day iheruf ; »ud this
I the truth av he %\m\\ aiiHUfr to Go<J, depons
B cat! not wrvitt
$ic Sublet iUiur,
John HViV in **
A. D. 1(?$I*
rs
fears, marled.
awe John l*ui
i liyt, ot Netik,
urmes ^*'f'' »*
iblbc
Ja. Foous.
'* ^1 twentie four
<'ruc, th'puns ho
ijnii t , . ^ij.rvun W<ir, Johit
Jolm ( ot.'hrnn, of Craig*^^ ol)
' n belts uiJunr 1079 , and
i»! shall answer to God.
J. Wua.
William Wkarrie^ in Scorrieho!me» aged
fourtie years, married , purged und sworoe, de-
pons he sawe John Sleill of Oier water bead,
coroeing and goelng to the rebelU befor the
delate at Bothwel bridge* nnd sawe him eiW
the break at Bothwel-biidge, wher he was
skulking, and this is the truth as he shall an-
swer to God : the deponer was purged of par*
tiall counrrilK
Sic Suburibitur, Wiixam QuHARlK.
William Weir, of Clerksloun^ aged threitie-
sex ye^rs* maried, purged aud sworue, de*
pons' he sawe John Whytt, of Neuk, Thoraai
Linn, youna:er, of Bloirachining^ aud Jamei
Whytt, iu Douglas, all in armes^ with tiii^ re-
bells, in June 1679 1 and this is the truth as be
shall answer to God.
Sic Subicribitur^ WiLU Weir.
Andrew Robert son , in Belihill, aged fourtie-
four years, marietl, purged and sworn, depons
he sawe Luke Greiusheills, of Hog*s-castle, io
armes, with two tioups of the rebells, at the
Sbawehead-Muir, on Sunday befor the breali
ac Bothwel- bridge j and this is the truth as be
shall answer to God,
Sic Subscnbitur^ Andrewe Robcbtsoh.
Johrt Hamilton^ in Lowe, watter^ aged twen-
' tie* sex years, marled^ purged and sworn, de-
pones bf sawe Arthur Tarbet iu ILimilton, in
armes with the rebells, in June 1679 ; and this
is the truth as he shall answer to God, and de-
poDS he cannot wreitt.
Sic Subscribitur, R, MArrLAND, I. P. D,
Robert Wcir^ iu Hamilloun, aged fourtie
years, married, purged and sworn, depons
nihil nwii,
John Millar f of Milnheugh, aged tbrettre-
sex years, wtduiufit purged and sworn, dcpooi
he sawe John Millar, younger, in lAjngCathcr-
wood, with the bodre*of the rebeiU, and a gone
on his shoulder, eight dayes efkr the conflict
at Drumcloge ; deponti he sawe John WiUon,
of Highflett, ryding throwe the Kirktoun of
Blaotyre, with a sword aUoiit hiiu, towards
Huiiultoun-Muir, wher the rebell*i then wer»
but depons ther was no person in his company ;
aud thiii i% tlie truth as ne shall answer to God.
Sic Subscribilur^ Jous Millar.
John Millar y iu Keomuir, ma tied, purged
and swonie, depoua he sawe James Corse in
Udingstoune, rvdiug by the teun of Kenmuir,
in the road to Gia^i;uwe, ihey day the rt^bella
entered Glasgowe, and lb at be hade a sword,
but tJiere was no perjkOn but another man in
his company; demms that William Riddell,
fewar^ in Ruthergirn, was in arme* with serin
or eight others of the rebelli*, and ihat that
partie offered to search ttie denoupol's house
for armes, and that the ^atd n ilham Riddell
being of the deponeut^^i acquauitanre^ he dealt
with the partie to spsire the de|HJUcnt*s house,
and depone It WHS betwixt the contlicl at Drum«
cloge and the delate at Bothwel bridge; and
ibis is the truth as he shall answer lo God,
St c Subnet ibitur^ J . M i LLAa.
nS] 54 CHARLES II. Proceedings agmnH the Lanerkeiire Men, {fH
with the rd)ellt at Glas^^owe, tnd that he ctme
Tvith some of the rebells to the depooent't
father's house to. search for antief $ depoos be
sawe Isack Blackwell, son to Thomas Blade-
well, keeper of the calendar ther, m aroies with
there bells at HaroiJton-Muir ; and this ia tb*
truth as he shall answer to God.
Sic Suhicribitury Jorh ]>UE#.
John ArneUl^ merchant, in GlasgowCi maried.
Surged and sworne, depons he aawa Isack
ilackwell son to Thomas Blackwdl, keeper
of the calendar in Glai^we, in.arme8 with the
rebells in June 1679, m Hamilton -Mnir; and
this is the truth as he shall answer to God.
Sic SubtcribitHr^ Joiw Armeill.
Jumei Strang, of Corsehill, ag;ed fourtie*
four years, maried, depons he sawd ThOmu
Craig, fewer in Jackstoun, upon the fyiV of Jont
1679, comeing from a partie of the rebells to
Kilbrydkirk, and sawe him ryd back to the
partie, deiK>ns he had a sword and a carrabm ;
and this is the truth as he shall answer to God.
Sic Subscribitur. Ja. Sraano.
Andrew Firming^ in Langland home, ^gel
f\i\ie three years, marled, pni^ged and awomCi
ifepons he sawe John Millar, youDg«r, in
Longcatherwood, hi company with the rebelli
in commissar Fley mings park ; and this is tht
truth as he shall answer to God.
Sic SubtcribilHr^ Andrew FtfittoiG.
William Dune^ in Robiestoun, bemg' swomc,
depons nihil novit.
John AndertoUt in Chrystoun, being soleflui-
lie sworne, depons nihil novit.
Robert Seott^ in HamiKoun, aged fonrtie
years, maried, purged and sworne, depons he
sawe William Park, of Lairiadd, se?erall tymes
in company with the rebells at the deponent's
house, hetwixt the first of June and thetwentie
second day thereof ; depons be sawe Thomas
Whitlawe with the rebelUi, tyme and place
forsaid, and sawe Gavin Paterson lykways
with the rebells tyme forsaid ; and that they
wer both id armes on the Calsey of Hamil-
toun, and that the said William Park was in
armesj and this is the truth as he shall answer
to God ; depons be cannot wreitt.
Sic Subicribitur^ R. H^LirrLAND, I. P. D.
John Marshall^ messenger, aged threttie-
fy ve years, maried, pnrtjred and sworne, depons
he sawe Gavin Hamiltoim, of Hill, in Glas-
gowe, efter the infall ther, in armes, and sawe
Robert Goodvin, maltman, in Glasgowe, ryd-
ing in amies with the rebells, carying the
Paisley collors the tyme forsaid; and sawe
g' kways James Cuuioghame, merchant, in
lasgowe, and Wm. Riddell, fewar in Ruther-
jjlen, John Cochran, in Craige, John Carduif,
in Straven, Thomas Whitlawe, of Bothwel-
sheills, all in armes with the rebells, within
the toun of Glasgowe, the time of the late re-
bellion in June 1679 ; aud this is the truth as
he shall answer to God.
Sic Subscrihitur^ John Marshall.
Malhew Braitkmoody in Udinffstonn, aged
scxtie years, maried, purged and sworne, de-
pons nihil nomt as to any of the rebells men-
tioned in the dittay.
James Alexander^ saidler, in Hamiltoun,
a^^l fuurtie-two years, maried, pni^ed and
sworne, depons he sawe Huffli i^mervaiil,
vounger, of Urrats, James M^Qubanie, of
Scoriebolme, Jn. Whitlawe, in Bothwelsheills,
and John I'atcrson, in Biithwelshi'ills, all in
arroe« with the rebells, within the toun of Ha-
miltoun betwixt the conflict at Drumcloge and
the defeat at Both wel -bridge ; and this is the
truth as he shall answer to God.
Sic Subscribilur^ James Alexander.
Robert Afeicander, in Nethertoun, of Hamil-
toun, a;^ed tburtie years, maried, purs[etl and
sworne, depons he sawe John Gray', of Darn-
gavill, sroeing up trom the toun to the Muir
of Hamiltoun, }w her the rebells wcr, on horse
back, with a gnne like a blunderbush ; and
this is the truth as he shall answer to God.
Sic Subscribilur^ Robert Alexander.
George Peiry cordoner, in Glasgowe, depons
he sawe James Cuningbame, merchant, in
Ulasgowe, rydiu^f up and doun Hamiitouu-
Muir, with another man, and that he was
amongst the rebells ; and this is the truth as
be shall answer to Gofl.
Sic Subscribilur^ George PeiHs.
Jchn Drewe^ ton to Walter Drewe, maltman,
in Glasgowe, aged twentie three yeare, mar-
ied, pnrgchl and sworne, depons he sawe Gafin
WMlMrapoOD, of Heathens, knoire m arms
Thomas Bowitf in TodhlU, purgeil and
a?ed fourtie tire years, depons he sawe Joha
ffamiltoun, of Rogertoun, in Hamiltoun -Mair,
standing in rank and fyle with the rebells ;
depons he sawe Thomas Craig, fewar in Jmck*
toun, ryding from Kilbryd towards Hamihotm^
Muir, wher the rebells wer ; dcpbns he law^
Thomas Craig, fewar of Jacktoun,' ryding^
from Kilbryd towards Mamiltuuu-Mair, wh«
the rcbeils wer ; depons he sawe John Millar^
of Long Catherwood, in armes with thetebcJIi,.
in Jiamiltoun-Muir, depons he sawe Jtrflll
Wilson, of Highflett, in armes with the reMli,
at Evuodale, and heard him give commission
to poynd for not giving horse to cary ther 1mi|^-
gadge, and this is the truth as he snail answer
to God. Depons he cannot wreitt.
Sic Subscribitur, R. Maitland, 1. P. D. .
Robert Lindesay, in Kilbryd, aged fyftietwu.
years, purged and sworne, depons he sawt
Thomas Craig, fewar ofJacktoun, in amwi
with the rebells in commissar Fleymings parky
and sawe Robert Steivin, of Newlana,- in
armes with the rebells at the said place, eAar
Drumcloge and befor Bothwelbridgt: ; and ^^»^
is the truUi as he shall answer to God.
Sic SubMcribitur, Robert LiNiikAT..
David DensMion, smith, in UdioMdiai
agttf ibivtie-eight years, depons nftfl'wofil
xra to any of ilie rcbcUsi mentioned in ifae
aiitiy
fhtirtw StotI, at thi^ m^h^ of Rath well,
I twtftili^ JWe ye«r«, unratirie'l, pnrgtitJ and
rii*{Htir'< hn'KaMe Gavin Weathci-arpoan,
tletii^V kurrvvc in %rme& anion^t tbc
"In Jute HifUj uwi (Iqtonfe llial llii»
i« the truth us hts nhttli answer to Gotl, nuU
ihe canu<»l wrtiilt*
: StthcrihUur^ B< Mahxat^U^ L P. D.
|pAi» RtJnittim, in Little Esrnockr dgetl
mie ftivin vears, unmaried. pureed and
if
noliHu
i»,.,L r.
^ ; "deiMms he 64iwe iViUiam
''"I'l, John CtK'Ur«iti, o(
i Cliai^ftlJ, and James
J_' ^11, ill Hirneii with the
fth« nir, in June 1679, ttnd
m^^' Ti, jwrtioner ot* Hinle*
d«an, in &riiitf« ivitb Ihc rebelts t vnm and place
forti^ld ; and this U llie truth asi h<i shall
^■krerto Gtid.
^^ 5lV Suhicrihitur, Joilfl RoBCsm«E.
Thomui Wutt^ in Blantyre, aged foortie
yearly umrricil, purged un ] swornct depons he
sawe James C'orsiT in ' fi» in armes
whh l\w reli«ll8 at Shau * ilr, and sawe
him rjfd throwe Jllantyre unuM^iately efter the
licfuk Dt Bothwetbiidire, and sawe James Rae,
xtn lo John Kae, in UitingMtoun^ lykways in
annrs \\\\\\ ihu rrhclU, at the Hhawefiead-
mmr ; dennn^ I hut he aawc John Millar^ in
Lon^ CHt|i€i'woott, in amies with the rebellSf
and fiawe John Piitci'^unt in V ' ' tu-iUg, in
arrnr«with the rcbejh, at Nt iiiir in
June 1079, ani) thi^ is the ituiu n.^ he shall
answer %o (Jod, ()<^pon!i he cunuot wreitt.
^^JSrc $ub^cribi(ury It. Maftland, I, 1\ 0»
^^fe^n Qr0jf^ in Bettley-nuin, a^ed twentia
^^Bm, nnnmried, dejH>fj$ he liuue Joim Eabluun*
^fmoncr, of CJaiiKpiciUr and Jarnc^ Gray of
^Krieknowe, wiilkiiij; in the streets of Gias*
^^e, and itworch about them, oua marcatduy,
when the ri;tieH» >^ere iti the totin ; and tliis is
the truth a^ )te ^hall answer to God ; depons lie
y|mnot wi-eitt.
^^mc SuhicriltUur^ R. Mattland, L P. D.
^^■year»,m! 'ki
fllf^ Rawe JJlt|ll■^ I'.nis III rr,i.^ ,|.i.rnv n;Mi i|}r
rebtflU ^vithin th'^ tiiiM) of latietk, hut t-annot
be (M»siti%e If h** '• "'■ ^uncs or not ; dc[U>ns he
Biwe Unhitt ' in Lunerk, in annt»
with lh» said \ -niirrk, in June lb7y»
tfii# tyii)< ; (hpiMi» he nsixw
John Ho ve, iu arnici> with
the rebeh«i iymv iiml |»i;irt iorKuid ; aiiil thU is
truth MM h<' «htdt iin»vvt^r to God ; depous
mnoi wreiii,
Stibnttoitur^ R. MAnxAJ«i> I. P, D.
€rt Sf{thir, in t*anrrk, ajzed fy-ftie yenrji,
' . punC^ *^*^ sivome, de|iona he Mwe
A. O. \6%U
Thnmaii Hinw|woo<l, m tianeHc^ ffoealong^lJ
with the rehells and a statTin hiiband; ii,mti ]
tht$ is the truth as he flhtUl answer to God.
Sic HHbtcribitur, RoBEitT M*GtB.
John Lindftaif, ^hoeoiakerf in Lanerk, a^ed
fonrtie years, niaried, purged and sworoe, de-
nuns he 8AWC Alexander Balyio, smith iii ,
Lanerk, in conit»nny with the rebells, earrying'
a musket, ut llauiihounf in June 1679^ ana
aawe Thomas llinselwood^ in Lanerk, in com-
pany with (lie rehellji with a sword ; depons he
^awe James Mnirhead, stnitb in lanerk, stand-
ing at the syd of tbc streit, and some women, ]
about hiai« atnl that he had a sword, butwajg
not in company v*uh any of the rebells nof^ *
went not out of the toun with them, nor did h« '
see him converse with any of them ; depons htt
sawe John Jack« in Nemphler. in armes wUli
the lehelU, witliin the loun of Lanerk, witli
sword and pislollii, in June ld79 ; and this if
the truUi i\^ he shall lOiffWfrto God.
Sic SubicribUur^ JoHN LitiSaAT. t
Andrew Weit\ nierchand, in Lanerk, ^^^
threttie-sex years, ptirgcd and sworne, deponi^l
he sawe James Muirhead, snaitb, in Laiierk^ f
with a sword in hii> band, iti company with tli% {
rebella, within the Loun of LaoerlL, and that Imi
sawe no other of the citizens who wer re§rular j
in .thcr company^ and net er know nor heard ^
that he was ont of the toun the tyme of the re^
hellion ; and this Is the truth as he shall anaww
to God- •
^ti* Subicribitur^ Andeiew Wem. ,
R. Maftlakd.
Jame* Stlkirk^ mason and wri^ht^ in Lanerk,
aged threttie one years, pureed and sworne^ de-
pons nihil tii/vit^ ,
DuTtd CaldwtU In ^loocklandf age^l thretti^*
years, maried, purged and sviorn, depons he'
Kawe John Thomson, son to Jaracs Thomson^*
potiioner of Garnquein, in armes with th«'
rebells, oji IlamiUoun IVluir, in June 1G79, and
sawe Georyre Robertson, younffer, of Glentore^
ia armeii with the rebells, on Hamilton -Muir,
with a piMoll In his hund^ and sawe John Rus-'
sill, uf EttjitllcUK ryding with the rebcHs se-
vernll tymes, in Ilamiltoun-Muir, but knowe^
not if Ke hade armes; depons he sawe Johir
Ka^itoun, of Ganifpieint gfocinj? up and dout|
with ihcreMlson Hhawehead-Mmr,nnd hturtm
him at other places with tire rebells in arme«f
dtpnns he sawe Rotiert Good? in, mahtnan, in
<;l;iSi,^o\ve, in a liouiic of Gla8||^Gwe^ wiih ve-
VLTull of the rebelUf andthat he w»^ n,.,. j ju,^,
hudr' pi^toUs ; depons he saxve ^ cks,
(jtutujijcr, of Halburne« and ^ ird-i
roj»pr, portioner, of Bas- J, ia
armes wild the reMIs on \' J»", in'
June 1671^, and this \% the truth as he shall luvn
swiTtoGod,
5*V Sub*cribiiur, DArin CAH)W\LtE,
Jttkn SmUh,ma\Ui\^n^ in llrttnilfmn T,iiivT*./t
nnd iw orne^ depons he sawe f i
rydingfio to GIa»gow« the tyt ,: *
S8T} 33 CHARLES IT.
wer upi btti ther was oo perton in his cam-
panv* and tle|>0Dg he sawe Robertson,
of Chmore, in armes Vfiih tlie rebells in Glas-
gowe, in June 16f9*
5<V Sub*cribitur^ JoUN Smjtu.
Molteri Twedale^ in Lesmahago, a^eil tlirettie
ye&TA, unmarried, purged and sworne, depons
oe rawe John Steill, of Overwatterheadt in
company nitb the rebells at Lesnialiago, with
ft fiwrord and pistoUs, in June 1679.
Sic Subscribitur, Robeht Tweddeix.
John Barre^ in Galrigie, ajjed fonrtie years,
maricd) |)ur^cd and stvorue, depons be sawe
John 8teill, in Orerwaterhead, in armea iriih
llie reliells, iit Hamtlitjunr in June 1679.
Sic Subicrilniur, John Barb.
George APWharrie^ in Boigsyd^ aged twen»
tic- four year, marie*!, purged and suome, de*
poos he sawe Thomas LinUi youn^r, of Blair-
ockoning-^ in armes with the rebel li, in Hainil
loun, lit June 1679.
Sic Subscribiturf George M^Q chart.
George Fairie, elder, in Rutherglen, aged
threttie three years, maried, punered and
tworr.e» depons he sawc WiUtaui RidtWl,
i^ar, in Kuthere^len, in eompany with the
rebelU at Rutherg^len, with sword and pistol ts,
in June 1G79, and sawe John Ifamiltoun of
Roirertoun, and Robert Fk yming', of Auch-
rnfine, in armes with the rebells, upon the ^9th
of May^ 1679, when the reMIs burnt his ma-
jestie'i acts of pnrliaineut at the croce of
Kulherjirlen.
5ic Subtcribiiur^ George Faibie.
John Dahelt^ in ETarthill, aged thnttie^eight
years, luaried* p*i«*g*^ a>id sworne, depons he
aawe IV illiam \Vardn>j>er, portioner, of Wester*
Calderhead, wilh four ijr (y^e of the rebdh
come by the deponent'^ hou»e» and dc^ioas be
hade a sword ; depons he cannot wreitt.
Sic Sub§crititur^ R. Maitla»o» L P. D.
John Bae^ in Udingiitaun, asred sejttie yeaii^,
piiT|red and sworne, depuits he knoucs nothini^,
Troyolui Balpey of Hnuterhouse, aged fyttie
two years, manerl, jiurged and sworne, <le|K>n«
be sawe Jumes Gray , of CbryHtoun, with tour-
tie orfyilie of ttie Vebell^, at the Sighihilt. ol
GJasgowe, all in amies upon ihe Monday
•iter Drum doge.
Sic Subscribiiur^ Teoyolus Bullie.
Cfaud RlJitetif auiith, in Rutherglen, aged
♦yftie four years, mai itd^ pureed and siwonie,
tie pons he sawe James Gr;iy, younger, of
Chr^'Stoun, in co inn any »*ith the bodie of the
rebeiU, at Rutberglen ; depons be sawe Jnmai
Cutiingbame, mercband, in Gl&sj;Tovr, the fur*
•aid place, in arnie^i in company with the
rebells, and with Robert Humillon, generalt,
inJune«{jr9; depona that Will mm Riddell,
fewar, in RtJtberglen, wsm in airnes with the
rebells un horseback, tht tyme forsaid.
Sic Sub»cribi(urf J a, Fouus.
Praccf dings agaiad th€ Lanrr^shire Men, [S
John Wilkie^ in Udiiigstoiniy twmmei de^J
pons be knew nothing.
John Murray, portjoner of Daldoivie, ttiAilJ
ntn> it as to any ot the rebfdl^ tucnLiooed in Ut6|
ditlay,
Willinm CuuitU, at the New Kirk <vf Monk-
land, 8|fe< threttie fotir yimra, mr^ned, deiKin#1
be knowes nothing as to any of rim rpfwdltf
mendooed in the dittay.
Robert Scott, in Rutfieii;k», ;*-trt ivftie]
years, maaed^ purjjetl and si\ oMn , tlfpuns'iliiti
efter 0rumclt»g, and befor itie dttate at Boiii- ^
welbridge, John Millar, younger, in Long Ca-
tber^ood, did i>ivit ihe tleponent to goe out i*$\
the rebells, amUold the deponent he htmself
wasgoeing, ara) that he went from home ihej
tyme of the rebel hon, bat did oot
amongst the re))rik.
Sic Subscribitnr, R. Scott,
Jitmet Hamilton, in Maines of Neils] anil«
aged threttie two years, maried, piirg^ed
aworne, depotis that be sawe Thomas Paltoiiyi
at the Old Kirk of Cambusnelhan, in aruie9>^|
carving a halbert, in company with the re-
bells, at Haniilton-Muir the week befor iIm
defate.
Sic SiJ*$cHbUur^ James Hamilton.
William Jamiemn, in Dewishill, aged foiirtie I
years, uiuned, pnrged and sworne, depons be
Bsiwe Jameji Dycks, portioner, of Hulbiirn, ia
armes in company with t4>ii or twelve of the
reliefs about a Vnyle from Hamihonn, the
tyraeof th«lafc rebelhon, betwixt the first and'
twentie second d ayes of June 16 TO; depons
he cannot wreitt.
Sic Subscribitur^ Ja. Foulib*
Gttvin Wood, taybr in llamiltoun^
tucntie years^ unrnuried, sworiie and pui^ed,
depnji nihil novil, an to John Marshall, in
Hatiiiltotm, exeept thiit he thinks he sawe tiim
at Humitufti that ni^bt Drumcloge was fought, i,
but cannot be positive, because it was night. t
John Hum iit on f son to Gilbert llamili
in HamiUon, depons n»Ai7 llo17t^
James Marmood^ in BplshiU, marled,
fyftie years, putged and sworoe, depoi
knowes nothings
Jamei Jack, in Udiugstoun, aged fourtie
years, marrie«l» purged and swome, depons be*
sawe James Wilkie, M»n to John ^Vilkre, im*
Udingstoun, in armes, bareingasword, in tlt^t^
toun of ildingstuuu, when considerable nuro-
bers of the rebells went throwe the toun, but cltcl^
not see him joy n in arme*! with the nd»ella,
buitbai it w j« the (time of the counlrey and of*
hiH nci^hbour^ tbttt he was in the rebellion^ ^
depous l>esav\e Julm Enstoun, of Garnqueitt,
in amies, mat clung thiowe the toun of lid-
in g&touu, with about ane huiidretb of th^
rebetlsj etWr llrumclo^^e and betor the defate
at Bothwcl-brid^e ; depons Jie sawe Gavin
Wealhcrspoou, lewar, of Heathcriep koowe in
I
jbr Ttmivii*
i^ilk ih^ leMli, the tjme md place
SkSubtcrihitur^ James Jack.
hn Frame, ia tUe BlackwimJrawe, Bfiff?d
lie year«, maried, purged and s Te-
' fii^lia he sawe John Wilson, of J m
' arme«i u'itU tlto rebtUs^ some tynic^ uun the
mmibcf of six and aomel^me wah the ouQiber
ol'twelv<\ and that they wf nt to the Flatmuir
to tht raiidevouzc Thursday efter the aitacque
Pasgow ; depuns he ifave ThotnaB Crai^,
oner of Jacktourv l^kewoyes with the
l»» ID arine^, tyme'aud place forsaid ;
06 he cannot irreltt.
Si9 Suhicribitur^ Ja. Foclw.
Joki% Leper ^ in Slratlifeni aged threttie
Tears, unmaned, purged and sivurac, depons
Kesttwe John 8teiil, ot Windbill, in company
witfi the rcbijtls, but knowe^ not whither he
liade arrne* or not ; and tliat it was betwixt
I I>rfimeelo;jfe and Both wel bridge, and depons
I that John 8teill said to the dcivonent, that he
I was thcr sf^eklng* hack his horses which wer
taken by the rebells ; depona he sawe John
1 Cochran portioner, of Chappet, the day that
J^fumcloffe was foiighten, in conapany with
the rebeUs, and particular! ie with BurghhCf
within the toun of Straven ; depons he sawe
James Dykes, portioner, of Halbum, in com-
pany with the rebetts, iu armes near HarniU
toun ; depons he sawe one called Paterson, in
I the deponents motbcr^s house, with thp rebells,
but kn<s)we^ not if he was called John or Gavin
Uklerson, and that the guid John Cochriin was
Hed,
^^ Sk Subscribitur* John Lepeu.
James Nacsmith, Mye^ of Hamiltoniu^ pvn^-
«d and fiwome» depona he knowea nothing.
Jama Nacsmiih^ servant to Mr. Tlobert
Black, aged threttie sex yeotrs, unmarried,
j>arged and swome, depooa he sawe John Steill
of Wiudhltl, in armes, with a company of the
rebells at Sitvertounbill, and that they were
mil horsemen, and hade a standart, and this was
<m Saturday betur the detkte at iiothwel- bridge,
ilepons he cannot w re ilk
Sic Stib$cribU tf r. J a, Fot;U9.
Jame$ Bramn^ wreitterf in Hamiltoun, n^ed
threttie years, uumarne4lf punned and sworne,
depons that James Lourie, wreitter^ in Lanerk,
went in company with flnlicrt Ixirkhart, of
Birkhill,toH: ' p,
and their con s,
ttud f ] i[> tjic toviu (Ji iiannmuuhf and
^pu^ James Lowne communed with
Jfihi* U ,,^^.,iy in r^nerk, who was a cnptainto
tiie rcb«!iU» and l»ckhart, of Birkhill com*
muM'^l »«♦'» !^lr. John Kintf, dt[ion)s James
Loi Nibf^rt Lonkharl badeairnefi^ and
that r_i iii«' Tweutie oav uf June, about
clef ill n t'
SU .- Ja, BitowKg,
Th« Couft coatioued tilt tomorroH the 19th.
^ vol.. XI.
Ifff].
The Perscwer and Pan nails compeirfng per* .
sonalhe ' nt in die precedente/ Hia niajc^tie's
adrocatc for farder probation agaiuest them
and the other rebel] i^, m Lanerk shy re, remiitetl
to the assyse, adduced
Robtri Scott^ in Kutherglen, who formerlic
depons, being iv- examined, depons, that John
Brown, t ay lor, in Rutbeig^len, wentawuy lo the
rebells tbe*Sabholli day of the rout ;it BothweU
bridge, and that tlie depoai*nt aJwistd him not
to goe, and not^vith standing hi? went fore-
ward, and that the said John Brown told thede«
ponent that he was taken and caryfd in pri-
soner to Edinburgh, knows not whither h^
hade armes or not.
Sic Subscribitur, R. Scott.
John Wallacey in Dong! as, being interrogtt
as to Fatton at the oUl kirk of Cambiu-
nethar, depons he knows not tlie man,
John Wilkie, m Udingstonn, aged foartia
fyve years, raiirried, porjjtd and sworne, de
pons he savje John Stott Mer portioner ot'
Udingstoun the day that the reUlls wept Vf
Gla8guv%e goe to the west end of the toun ot '
Udingstoun, on horseback, with a sword,
which way is the way to Glasgowe, whcr th^
rebells wer, but was dikant fyre myles thcrfrae*
Depons he came home the same night to hit
own house ; knowes not if he went to the
rebells therefter, depons he -sawe John 8cott,
younger, ryd from his father's house over tha
Croft towards the west-tfud of the toun of Ud-
ingstoun, the way towai-dsthe rehell ariiiy»
wliich by on the south S3'd of Clyd ; knowes
not howe fare distant they wer from the srd of
Clyd ; depons he hade a sword ; knowes not if h«
entered the rebells camp or not, and that lh«
premises wer betwixt the first of June and
twentie two day Iherof, 1679 ; depons tliat th#
day of the attactjue at Glasgowe, he mw^ ,
James Corse, in Udingstoun, in Carmyloi
with a sword about him, and th;it theref^er ho
told the depuncnt that he hail bein at Glaa-
gowe with the rebells ; depons he knowes no-
ihing as to Alexander Cor^ his son«
Sic Su bscribit ur, John W Ji4itE,
John Eamilion^ of Fairholme, aged fourtJ#
years, married, purged and sworne, depons hm
eawe John CardufT, fewar, in Straren, about
four er five days befor the break at BothweU
brtdgfe, come with a sworrl about him, tho
way from Hamiltoun wher the rt*bells lay
towards 8itFertonD-hi1l^ and ther wos another
person called Arkhill with him, lykcwaysiu
armes.
Sic SuUcribiiitr, Jo. HiMrLTonv,
flia MaJeHit's Ailvocot addnc*»d Troyolm
Balvie, nt ^!;onterhousc, a nitnests nimiiis^
William Wallace, portioner, of MainhSlj oa
pannalL
Mr. Ri^tri Mmn, ndrocat^ as procurator
for him, nlleadges, that tlie said 1*royolll^
Balyie could not be ttUuitted a witnes "^'
V
29H.
33 CHARLBS IT. Proceedingi aga'mit tke LanerkJkin Men, [29S
Lim, because iher wer inmicitue capitalet be-
twixt him aad the said Troy ol us, wdich he of-
fered bim to prove by the witDeses efter men-
tioDed, Viz. Thomas I>onaId, smith, in Dyke
bead, and James Pettiecprewe, in Bakpedie, who
beiogf sworne, deponed that they heard the
■aid Troyolus declaire that lie repented be bade
not sticked tlicsaid William Wallace.
The Lords having considered the witnesses
depositions, they rep^^ll Troyolus Balyic from
bein^ a witness againest the said William
Wttllacc.
James Marttood^ in BelsbiU, beinpf sworne a
witness ai^inest the said William Wallace, and
pursred, oepons he knowes nothing of William
Wallace in AlainhiU his being accessoric to the
late rebellion, only Troyolus Balyie told the
deponent that tbe pannall was in armcs with
the rebells the tyme of the late rebellion.
The haill coinpeiring witnesses wer sworne
aifd examined in presence of tbe inqueist, and
ther denositions recordit, except these who de-
poned they knewe nothing, or deponed only as
|g such ag^t whom ther is a full probation led.
The Lords ordaine the assyse to inclose and
returne ther verdict.
HisMajestie*s Advocat protests for ane assyse
of error againest the inqueist in case tbey as-
■olyie.
Eodem Die.
IntrarC
John IlamiHon^ of Stonball.
Thomas and James Alstount^ of Af aines.
Robert and William Gilnwurs^ portioners, of
Preistgill. .
Indyted and accused for the civmes of trea-
son and rebellion mentioned in ther dittay re-
fh>rdlt the 1 1 instant.
The Lords Justice Clerk, and CommltisioncrH
of Justiofar}', of consent of his Majestie's Advo-
cat, aad for several 1 other good causes and con-
sideraiionsdeserted, and be thir presents deserts
the dyet as to the saids John Hamiltoun, of
tilonhall, Thomas and James Alstouns, and
Robert and William Gilmours, simpliciter^ and
discharges all now letters to be raised or given
out agamcst them, for tlie crymes above sped--
fit in tvine coming, except be ane express
worranJ from tbe saids lords in presenting
Wherupon the saids defenders asked and took
instruments and protested for ther respective
cautionci-s releiff, which protestation the saids
lords admitted and Itercbv admitts, and onlaines
tbe saids cautioners bonus to be dely vcred up«
March 21, 1681.
Intran*
Jainet SempUy maltmati, in Hamilton.
John Scoit^ elder, [wrtioaer of Udingstoun.
Jtunes Muirhead^ smith in Lnnerk.
If j7/Mm Wallace^ portioner, of MainhiU.
John Marshall^ fewer and wreitt0r» in Ha-
luiltOUD*
Wi
Jotm
John WilUamtoHy son to •
heritor of the lands of .
John Williamson^ son to
cail ^ lord Sbortdeugth.
Jo.'n Spreullf younger, son to Mr.
Spre 11, writter, in Glsiagowe.
Witiiam Tmedak, son to William Twedale^
late bal^'ie of Lanerk.
David Robieson ther, called Pdoie by piek^
name.
David Weir, son to Weir ther*
James Walker^ younger, of Halketbume.
Indyted and accused for the crymet of trea-
son and rebellion at lenth mentioned in tb«
dittav.
The saids John Williamsons, James Walker,
John Sprcull, William Twedale, David Robie-
son, and David Weir, and ther procouratori,
gave in renunciations subscribit be thera of all
ther heretage preceding the rebellion, wherof
the tenor followes :
Be it kend to all men be thir present let-
ters, We John Williamson, son to Robert
Williamson, called lord . Shortcleogfa, Jieha
Williamson, son to Mongo Williamson, berir
tor of the lands of Holl, David RobieBOu, ia
Lanerk, called Possie by nickname. Fona-
meiklc as we are persewed as heritors to undcr-
lye the lawe for our being in the late rebellioB
in June 1G79, and that we did defend ourselves
upon our taking the bond not to rysQ in annei
againest the kmg's majestic or his authorities
as not being heritors, and therby have the be-
nefitt of his majestie's gracious mdemni^, and
it being found be tbe lords justice clerk, and
commissioners of justiciary, that we oogh't
oiily to renunce the benefitt of all lands and
herctages befallen to us befor his majestie's act
of ^race, Thcrfor wc lie thir presents rennboe
and resigue in favours of the king's nuycslis
and commissioners of his bynes thesawrie, and
his donators, all lauds and beretasnes b^lle^
to us, and whcrutito we bade right be(br his
majestie's act of grace, and binds and obliges
us to denude ourselves therof omni kabili modo^
at the seight of the lords of thesaarie, and ha
the adwLse of his majestie's advocat consentug
to the registi-ation hereof in the bookes of iM-
joumall, that letters and executorials needfvff*
may be direct thereupon in forme as eflefrs or
that the same may be registrat in any I
competent within this realme, and for toateflte
constitutes 3Ir. Colin M'kcnzie and Mr. John
Monzics,advocats, our procourators. In iiitniM
wherof thir presents (written be John Ander-
son, servitor to Mr. Robert Martin, clerk to tiw
justice cjurt) are subscribit with our hands i^
Edinburgh the 18th day of March 1681 yeaii,
befur thir witness George Monro writter ik
£dinbur«<:li and the said John Anderson
Sic SubscribUur John WiLLUMaoir,
John Wiluamson, David KoBiESONia '
Geo. Monro, witnes. *
Jo. Anderson, witnes.
Be it kend to all men be thir .
ma John Spreull younger wreiuirr in
293]
/or Trrascn.
Ifor^meiltle n% f mm pcrsewetl »s ane heritor lo
iimk'rlye the In we tor ixty b^intf in I he late
ristfethrtn in June 1679, and that I <lid defend
myself upon the takinif ihe l)ond not to rys*? in
armet against his majesticViorhistiuthoritie »«
fiot beintf ane heritor, and therhy huve the be^
nejHt c»l" liii nn8Jostie*s ^ra'-ious indeinnUic;
jmd it heinij fount! bt the lotdsjwsticc clerk and
coninus&ioners of jiistlriary, that I ought <»nly
to reounce the l>eiiefitt of all land^ and herc-
tji{j;c« Itefntlen to mi* liefor liiit niaje*itie's act of
gnire, therfor I lie thir |<Tesent8 renunre and
ttsi^iw in f;iVQurs of the kind's majestie and
comiHissioners of liis hig^nes ihesaiirief and
his dunatorii, nil hituM anil heretag^es befallen
to mc or fiherut^u I hade rifirht liefor his ma-
jestie'sc act of frfaec, and biiidji and obtig'es me
to denude myself therof omni Imbili moJo^ at
the sjijlit of the lords of thesaurie, and he the
adwi»e of his muje&tie^s advocai consenting to
I he reGfi^ttmtion herwif, in the hooks of ad-
journalf or any judges bookes within tins na-
tion, that iettJrs ctecuionals needful niny be
dire4:t hei'euiMU) in forme an cttVirs and consfi-
int' master John Kincatdadvoc&tt ray procon-
ralof. In **itncfi wherof I have sobscnhit thir
presents (written be John Andci-son, nreitter
in Edin'r) with my band at Edinburght the
18tb day of l\[arcb^ i6lii years* befor ihir wit-
iieaacs* fieor^e Monro, wreitter in Edioburg'h,
itnd Ihe uRiii John AnderBOD.
Sic SubjtcTibittir Jo. Spufiuix,
€ir.o. MoMto, witness.
Jo» An!jcuson, witneis.
Ite It kend in all men be thir presents tetters,
tueJunii-s^Vulker.yonng-erorHatUwoodburnc,
format nt?ikle sis ) anie persewwl as ane heritor
to underlye the hiwe for my beint^f in the late
rebellion in June J67l>, and that 1 diil defend
myself upon till i^iUirii/ the bond not to ryse in
armes a^inr j's mnjt'stie nor his an-
iboritie, as n ,me berilorf and tiierby
li8V« the benehtt M ins majettie*« vraeions in-
tlemniiie, and it l»emtj' found bo the Utrfn Jus-
tice elei'k and oommiiiRioner!* of justiciary that
I ousrbt only to reaunce the bpiiujitt of alf Und^
and heretages befallen to me befur his iriaje^tie's
act of tj nice, Ihertor 1 he thir presents renuoce
and resigne in favours of the kinjj^^s inaje^itie
und commi^ionera of hiic highnes thcxaiiriej
and hi^ dunutor^^ all lands and horeta^rs be*
J;ttU»n to me, or whenmto 1 badt: i-iy;hi befor
Jiis majemie'A act of ^race^ and hinds and
obtid^e« mc to denude myselt' ihei-of, omni
^t^tti modoy at the *(ei^^lit of the lords of the«
Pttirie, and lie tht-;;di^ise of his innjestie^a ad*
WOCal i"rqisei»iritL' to the re^jfistmtjou hereof, in
Ih' iiniHlIf or any jud;^e« buokett
%'^ti •% llrat letters of hcM'uttii'' and
other r^trtt«M)ttdUne4H!ftiUm»y be dire«rt there-
lipon in ioruui as efleirKf and coiistituts Mr.
IJolin lM»Ken»ie^ advoeat* ray priHH)uniior tn
inritn^^i %vherof^ thir preKenlK (wrktlen l>e Jt>hn
Aiidi*r»o», wrviUrr to i^lr. Itoliett >lAriin» i'lerk
tn the jiiAtrcfr eoiirt) are snlMcribit with my
kftodi at Edtoburyh, the 10th day of Manh,
few j€»f», befor tlu> wilnesfies Geerg^e ^lonro
Kvreiit^er in Edin> and the t<aid John Anderaou
Hie Su htcrihit ur^ J a . W alkes*
Geo. Blo^no, wttne^.
Jo. ANorjisox^ wrtnes*
Be it kend t<^ all men be thir priwent 1ett«
me William Twedale, sua to William Twedal#
late balyie of L»\nerk, trorsanieikle an
amc pefsewcd as ane heritor to ntiderlye ih^
laue for my bdntr] in the late rehellion ia
June }679t and that I did defend mys^elf npofl
the taking ane boiul not to ry&e in anna
aipiinest \\h majestie nor his authorities as no
l>ein^ ane heritor, antl thereby have the benetij
of his majeijtlo's pracious indemniUe, ai^d if'
heintr found be the lordf* justice clrrk and com-
mtssioners of justiciary that I ou^^itonly to i
nunce the bencfittof all land and hereta'^es UmA
falkn to me befor his aiajestie*8 act of graceil
thertir I be thir presents renuoce and reaignij
in favours of the king's m^estie and commis*
sinners of his highnes thesaurie, and his dona
turSf all lands and heritagrea befahen to itie o
wberunto I hade right hefor his mitjestie'sao
of gracCf and binds and ohleid^^ mc to denude^
m^vself therof, omril hubUt modoyHX the seigh
oi the lords of thesaurie, and be the ad wise ot
his majestie's advorat consenting to the regia
tration thereof^ in the iKiokes ot adji»urftall, d
any judges bookes \*iiluu this nation, that let*
ters and execulorials needful I may be direcli
hereupon in forme us efleirs, and constitutil
master John Menztes, advocat, roy prucou*
rator. In w lines whereof thir presents wvitJeitl
he John Ander'son, servitor to Mr. Rob<
Martin clerk to the justice court are suhscrib
with my hand at Edinbur^^h, the 18th day o^
Mareh«' 1/381 years, befor thir viitnesseflpl
Georife )Ioni-o« wrctLter in Edinburgh) atid tb
said Jo4iA Anderson.
Sic subACriLUury WlLUAM TW£DDAIX.
Geo. Mu^ro, witnen.
Jo» A\DERSo*si, M'itnea.
Be it krnil to all men he thir present
me David Weir, son to Ungh Weir, mercband
in Ennerk, fforsameikle as I ame ncrsevv<!d
ane heretor to undcrlve the latve fcir my bein
in the tate rebelliou In June, 1079, and ihal]
did defend thyself upon thn takin^^ ane bond no|,
to ryse in arnicii nt^insi hU majestic nor hiil
autiitjntie, as n? f ' ne hcrrtor, and lhcre*J
by have tlie hr! . mnje^itie^s ^ndQUij
imlenmitie, and a Im ,,, ^ ...und b«Mhe lordsjtis-*J
tiee clerk and commissioner*! of justiciciry, thall
] uuQ[Ut only to renancc the bonctilt of all I
lands and hercta^**^ befallen to me befor hii J
rtiajcfitic'ii act of (rraeci ihfrfor I he thir pre-
•anta renunce and ie«i^ in favours of Ihe king^^s
naajtstie au«l couimissioiSers of hiKhi|Thnesthe-
saiirie, and his donators all lands and heritafj^e^j
befallen to me, or wherunto \ hndp ri^^ht hefor hi* i
maj^slie^B act of gnu'e, and hinds and obleidges]
me to denude myself tlierof, omni habili tmiJiif*^^
at the fi^ht of the lorda of thesaurie, aud l^ I
Ihe adi7yi*e of hi« mnjestie'a adnk^t, consent •*!
ing tQ ihe regiairtttiou bei^evfi d the booket of ad*
r)5]
98 CHARLES II. Proceedings ngaind the Lanerkshire Men. [296
journall, or any judges books whbin tbis realmey
that letters and executorials needfull may
passe thenipon in lorme, as efTeirs and consti-
tutes master John Menzies, advocat, my pro-
Gouiator. In wiliies whergf, thir presents
erreitten be Jobn Anderson^ senitor to Mr.
obert Martin, clerk to the justice court) are
subscribed with my hand, at Edinburgh the
18th day of March, 1681 years, befbr witnes-
ses George Monro, wrcitter, in Edinbui^h, and
the said John Anderson.
Sic Subtcribitur, David Weir.
Geo. Monro, witnes.
Jo. Anderson, wituess.
The Lords Justice Generall, Justice Clerk,
and Commissioners of Justiciary, in respect the
saids John Williamson^s, James Walker^ John
8preu!l, William Tweddale, Da?id Robieson,
and David >Veir, have accepted the benefitt of
liis majestic's gracious pardon and indemiiitie,
and have renunced and resigned in favours
of the king's miyestie and commissioners of
Lis h}'ncs thesaurie, and his donators, all
lands and hcreta^es befallen to them, or where
unto they hade right, befor his majestie's act of
Srace deserted, and be thir presents deserts the
yet in perpctuum^ and discbairgcs the raising
or outgiving of any newe letters or dittays
againest the defenders for the crymes above
8|iecitit in tyme comeing : whereupon they
and tlier procurators asked and took instru-
ments and protested for ther cautioners relieiT,
and craved ther bonds might be dct^'vered
up, which the saids lords admitted and or-
dained.
The said day the persons who past upon the
assyse of James Scmiile, John Scott, James
MnirheafI, William Wallace, and John Mar-
shall, aiN)vc designed, and the remnant persons
re niittvd to thi lu, returned ther Verdict in pre-
sence of the saids lords, whereof the tenor fol-
low es : The .\ssYse be pluralitic of votes, by the
mouth <»f JanKs Baird, of Saughtounhall, ther
thancellar, Ifiiids t!ic sufficicucie of the pro-
bation led againest the persons underwreitten
conforine to the depositions of the witnesses
adduced, to witt, againest David Whytt, smith
in Lanerk, Gideon Weir, pfunesmitli ther,
David Gibson ther, John Wilson, wreilter
ther, Mr. Thomas IMIIans, James Laurie,
wreitter in Lanerk, Archibald Svmson ther,
Thoiuas Lauchlan tlicr, William Ferguson
ther, John Semple^ mason ther, Thcmiasln-
l^lis ther, Alexander Anderson ther, John
I'umphray ther, Jc^ Jack, in Ncniphlcr,
William Pad/ean, mason, in Lanerk, Kol)ert
Lockhart, of Birkhill, Gavin Hamilton, of Hill,
James Weir, of Johnshill, John Steill, in Over-
%vaUerhead, John Haddowe, in Douglas,
James W hytt ther, William Falconar, inlla-
milton, Arthur Tairbet, Gavin Weatherspoon,
of fleatherie-knowe, John Easton portioner of
Ganiqurin, Robert Goodvin, maltman, in
Glasguwe,. James Cunning ba me, merchant,
tfier, Isack Ulackwell, son to Thomas Bbck-
weU ther, Wdliam RiddeU, fewar ia Ruther-
Ben, Robert Fleyming, of Aodiinfiiie, Jioha
amikon, fewar of Rogirtoan,Thoiiias Ciaigis^
fewar of Jacktonn, John Millar, portioiier ot'
fiODg Catherwood, John Wilson, of Uigliflttt,
Robert Steivui, fewar of Newland, John StcOl,
ofWindhillfJohnCochraQe, of Ciig«, Jamss
Dycks, portioner of Holbum, John CaFdof,
fewer in Jacktoun, Thomas Patton, at the Old
Kirk of Camnethan, John Whitlawe, in BoA-
w elsheills, John Patterson ther, John Whylt,
of Neuk, and Thomas Linn, of BlaiTachin, and
fiinds the pannalls above wreitten goilty of it*
seiuff and being in the rebellion 1679, with as
rebcTls, in armes ; and also, Assolyiea JaiMB
Muirhead, smith, in Lanerk, John Willde, in
Udinffstoun, WiUiam Wallace, portioner of
MainhiU, John Scotts, elder and younger, it
Udiogstoun, William Dick, m Ijtfim, Jaaei
Park ther, Hueh Ker, son to WiUiam Kor,
of Bedronald, Robert Haddowe, ther, John
Buckle ther, Alexander Balyie ther, Thomas
Hinselwood ther, Hugh Somerraill, of Uratts,
James M'Qubarie, of Scorieholme, James
Carse, in Udingstoun, Alexander Corse, his
son, James Rae, son to John Rae, in Udings-
toun, James Grav, elder of Chrystonn, Jsraes
Gray, of BerrieCnowe, John Brown, in Ra-
therglen, Hugh Ker, of Bawehouse, Wilfiam
Park, fewar of Lairdfadd, James Heidi of
Kittochsyd, John Cochran, portioner of Cfasp-
pell, John Hutcheson, ot Hairlawe, Lus
Greinsheills, of Uogscastle, John Gray, of
Damgavill, John Marshall, wreitter in Ha-
milion, George Robertson, elder and yow^^^
in Glentore, William Wardroper, portioncrsf
Wester Catherliead.
Sic Subscribitur. Ja. Babd, Ch*
Eiler oppinii^ and reading of tlie whilk ver-
dict of assyse, 'Die Lords Justice Generall, Jos-
ticc Clerk and Commissioners of Josticisiy,
Therfor be the mouth of Andrew Conning*
hame, J>empeter of court, decerned and adjodr*
ed the said David Whytt, smith, in Lanm,
Gideon Weir, gunesmith ther, David Gibsm
ther, John Wilson, wreitter in Laneric, Mr.
Thomas Pillans, James Laurie, wreitter tfasr,
Arcliibakl Symson ther, Thomas f^tii4>|M
ther, Wiiliaia Ferguson ther, John tfempli^
maso'a tlicr, Thomas inglis ther, Alexandw
Anderson ther, John Puraphray ther, ^ohn-
Jack, in Ncniphler, William Pailzean, msmi
in Lanerk, Robert Lockhart, of Birkhill, GaLfin
Hamiltoun, of Hill, James Weir, of JohnsUD,
John Steill, in Overwatterhead, John Had*
do we, in Douglas, James Whytt ther, WiUiui
Falconer, in Hamiltoun, Arthur Tairbet thsTy
Gavin Weatherspoon, of HeatheriduMi«%
John Eastoun, portioner of Gamquean, Rahul
Goodvin, maltman in Glasgow, James CmuM;^
hame, merchant ther, Isack Blackwell, aon Is
Thomas Blackwell, ther, WiUiam RidMI^
fewar in Rutherglen, Robert Fleyming; in
Auchinfine, John Ilamiltoun, fewar of llsyi
toun, Thomas Craige, fewar of Ja '
John Millar, portioner of Long GatT
John Wilson, of Highflett, BobsfC
wr]
Trkl of the
ievr&rof Newl&iid, John ^teill, of WuidhUI,
Jobn Cochrao, ot'Craige, Jatn<fs lKck»» por-
itMiacr of HaJbunie, Jolui CardoflC fewar in
Jtctenn, Thomao Fatton, at the Old Kirk of
daoibtuQethaii, John WbttLawe, in Botliwel-
•bdlls, John P&terson tber, Jobu Wh^/tt, of
neuk, and Thomas Lioi of Blairacbin, and
itk ane of them to be execut to the death, de*
Enaioed as traitors, and to underl^^e the [laines of
treason ttod utter punishment appoynted by the
kvresof this realme when they ttball be appre-
bendit, at such iyraes, places, and in tiuoh
tnaner, as the lords ju&ticc g:4merall, juaitice
clerk and commisfiiouers of justiciarie shall
appoynt, and tber names, roemortCi and ho-
nours to be extinct, and ther arraes to riven
furth and delate out of the bookes of armes,
suae that ther posteritie m'^y never have phice
oor be able herefter to bruik or joise anie ho-
oHices, or dignitu^ witbixi Ibis realme,
in ty tne comeing^, and to have forfault am tint-*
ted ^nd tint alt and « nod re ther la aria, ^ere*
tages, tenements, aoniial rents, offices, tltlesi
diguiues, tacks, sleadiog, roumes, poss^ssioiis,
^oods, aad gear, whalsomeTer pirtakilag to
them, to our soTcrergn lord to remain jwrpetu-
alhe with his highness in property, which w»s
pro n unced tor doon i : W hereupon h is M ajfsties
advocat a&ked and took inf»truments.
The Lords continue the proDtmcingof doom
and sentance againest James aSemple, majtman,
ui Hamittoun, who is fountl guilty of treason
aud rebi*Uion, and is come in his mnjesde^s
will, aud has confessed the cry me, and beg«
pardon till the lift day of April nLxt.
N. B. The diet against James Semple
continued from time to time, and ot last di
out altogether.
33 L The Trial of the Lady Alice Lisle,* at Winton, for High'
Treason: 1 James IL a. d. 1685.
Augutt 27, 1635. I *^® ™**** niostrious prince, James the BfCOttS^
* I bv the gracse of God, of Englaod, Scotland,
CLofAr, Alice IJsle, hold up thy hand. France, and Ireland, kinar. thy supreme and
riVbicii sliedid.] TJiou standest here indicted I natural lord, the fear of Gml in ihy heart not
Dv ihkt name of Alice Lisle, iif the parish of , huviug, nor vrcigbing the duly of thy alle»
Ellin^ham in the county of 8nuthampton. giance; but beiug moved and seduceiihy tkc
widow { fur that thou, as a false traitnr agaiast instigation of the Devil, the love and true* dito
L
♦ Mr. Juslioe Foster calls her (more pro-
gierly as it iM?eins) Mrs. Lisle. Hhe was widow
of John Li&le whu had been one of the Judges
ol Kitig C'harlett the First ; (See vol. 4, of this
CoUcciioii p. li>:it— 1133;) but I tind not hb
flame auiurtg ihuiic whw signetl the WaiTaut tor
Kveitiitiua. (Ht« vol. i, pp. tl34, 1136.) He
bad alirrwardH, in ihe Protectorate of Oliver
Cmmwell« U^en Lord President of the High
Court of JiiKtit'c. (See in tliis Collection the
Cast!* of GcTlmnl luxd other*, lol 5, p 517 ;
olfiNr Henry fejimg**by, vol. 5, p. 87 1 ; of Dr.
tituirt, vul 5, p. dU3» and of Mr. Mordant,
▼oL5, p. *Ki7.)
The fidhiwiiig particatars of the death of
Lisle, arc related by Ltullow, his friend sod as*
•uciate^ and a partner of his expa^trlation :
•* Mr* Linle having received advice from the
lieutenant BaU«al, tlmi a certain Frenchman,
who iistrd to cngi^iive u(Kjn seals and dishes at
Vetay » Lau«anna, and other pbces, had in-
fbrmeii ih*^e {Savoyards of the way they should
for lhi» exix^uiion uf their wicket! dasign,
r to demand him at
V here being" intbrm-
ctiii 4uai t)i' ' n mcivsn^e wan
luse hitu to be
it my request,
> into custody.
,„,.:^;d bad pasti^d at
I
paiited a w
Lausanna, and supposing the alam> to be over,
was returned thither. Of which the gcovern-
meat of the to\tn havingf advice, tliey caoscd
him to be ^seized, aud carried before the burgO'^
master ; who, alter a sUi^ht examiaation^ con-
tented hinisvli with banisluiig him from ttuir
jurisdictiitii. Anil nuw Mr. Lblc beg^n to
think, that he hiid not much l>€t(er provided for
his security by Abandoning V^evay.
** On the VVcdneiday ot the same ^leek, tirn
men in the habit of nri-oyms, mounted u^ion
good horwi-^, came to lodge at an inn in Vcvay,
Urwhidi our landlord havmg- rcueivcil notice,
(according to an order of the badilf and c)iate«
lain formerly sigiutied to all iuokii^pci^), be
went tci the house where they were ; and,
upon rxaminatton, was assured by them^ that
they bekinirod to a German count, who wus
then at the baths in the l^ais dcs Vallces ; thai
thev were by his onlcr conic to this place to
wait his return, and that they bad already sent
a messcngfer bi acquuint him with their arrival*
Beiu{^ not able to draw any more from them,
he came huuie ; and^ bavin^t ^icquaintcd me
with what hud passed, earnesily desired, that f
would be ujion my guard. In the mean timn
theftv? pretended sjf<»oms crmlinucil al V«vay
till the 'riiun.day in ih« tollowmp week ; whea
one comiu'^^ liom the lioilii* before mentioned,
assured, iliat no such person a* thcte tVllow«
dcscnb^ had been there; which added to i
m^m
1 JAMES n*
Tyia! of the Lady AUci Lkfr^
[ natur^il oliediencef iiliicli a true And faith-
ful subject of ottr said lord the kxug^ towtii-dt»
him our said lord ihe kin^. should, and of ngbl
ought to bear, u hoi I J w ill idra wing", at»d »viih
al) ihy ini^ht intending- the peace aod com-
mon tranquillity of ibis kingfaom of England
to disturbi and war and rebellion against our
threatening message sent by our landlord to the
innkeeper for entertaining such rogues, they
liasteoed away, and went to Lausanna,
*' On Thurs^Jay the llth of August 1664,
one Mons. Longeon of Lausanna brought me
the sad newst that Mr. Lisle goin^r that inoi-n-
ing 10 hear ilie sermon in the church that stood
near the tovm-gate, was shot dead hy a person
on foot, who had a companion waiting for him
mi horseback, with a led hor«e an hl^ band ;
which the murderer having mounted, and
cried Vive U R<nft they immediately rode
away together towards Morges. 8«jnri aAer
this barbai'ous murder uaa committed, we un-
derstood from Lausanna by the description of
' the persons, their cloaths and horses, that they
were the same that had lodged at Vevay.
They had continued for a week in Lausanna
l>efure they found an opportunity to put in exe-
cution their detestable plot, and had carried
Ibeniaelves with such indiscretion, that djrers
penons suspected tliem to have a design
•gainst the English. Of which Mr. Lisle being
Informed, he sent his landlord twice to try
^rhat he could d raw from them * B ut tli ey had
BO well contrived their story, that he could find
iio colour to remove them. Many persons
tipOfl euspicion of these feUows had desired Mr.
Xiile to be upon his guard, and to forbear going
to the churcli he used ; because it lay so near
llie tow negate, that if any persons should make
an attempt againut him, they might with little
diflicully escape by that way, Oor country -
wen al«o who were with him, perfbmied the
same office. But he would by no means
bearken to their advice ; saying, he was in the
hands of God, and had committed himself en-
tirely to bis protection ; adding to this answer,
that my lite was his defence, and that til) our
eaemies had dispatched me, he assured him-
j telf tbry would nut think of him. The villain
^ that murdered him had waited hiei coming at a
fcarher's shop, where he pretended lo want
aarncthing for his teeth ; til! seeing Mr. Lisle
at a flislanre, \\v stcpt out of the shop, and as
i lie came hy , saluted him. Then following him
into the church -yard, he drew a carabine from
i tinder hia cloak, and shot him into the back.
^ IVith the recoil of the |iiece the villain's hat
t^iras beaten off; and he himself falling over a
ficce of timber, di-oppcd bis gun, which he left
ehind bim ; and us coon as he had recovered
' bimsolf, running to his companion who held
I the teil boi^e, he mounted, and made his ea*
[ cap**, 'llnis died John Lisle, escj. son lo sir
tlldham Liale of the Isle of Wight, a nM?mher
1 €5* *' . ^ I r r ui, one of the council of
i * 'd' tlie great seul, and one
^ iri »av *i3i3u*tiv* lu the ioitl j»rtjwdciil in Uie
said lord the king, within thiii ' i
England to stir up and move, an'
mout of our said \t}Tii the king, wutuu thai j
kiogdoui of En^lanil to subvert, and our said
lord Ibn king iWim the title, honour nrr' ^t— ^*
name of the imperial i^rown of this I
dom of England to depobe, cajit down, .....x ^.;
high court of justice that was erected for ihe
trial of the late king,"
Burnet, after mcntior'-^ *^ m?^>.
ties of Kirk to the pan
the savage and shamelt ;>^ ......,^\ ;<r.,, w. .;
(for which, see vol. 9, pp. 056, 7.) wrlltrs timi
of the proceedings against lady Lisle, atid
those against Mrs. Gaunt. (See the next Caae.)
** Two executions were of such an extraor-
dinary nature, that they deserve a nit>*^ par*
ticular recital. The king apprehended Uiai
many of the prisoners had got into Londoo,
and were concealed there. 8a he aaid, thoie
who concealed them were the worst sort of
traitors, who endeavoured to preserve such
persons to a better time. lie had likewise a
great mind to find out any among the rich
merchants, who might atlbrd great compoai-
tions to save tlieir lives : For though there
waa much b!ood shed, there was little booty
got to re%vard those who had served. U|Kpn
tliis the king declared, he would sooiier
ptirdou the rebels, than those who harbourt^
them.
** There was in London one Oauntt a
woman that was an anabaptist, ivho Kfient a
great part of her hfe in acts of charity, visiting
(he jails, and looking after the poor of what
peiiuasion soevtr they were. One of the re-
bells f<>und her out, and she harboured him in
her house ; and was looking for an occosioa
of sending him out of the kint^dom. Ma
went about in the nij^t, and came to hear
what the king had suid. So lie, by aa uw*
heard of hasene*Ls» went and delivered himself,
and acetified her that harboured him. 8he wet
seized on, and tried. There was no witness to
prove that she knew tliat the persou she bar*
boured was a rebel, but he himself^ Her maid
witnessed only, that he was entertained at ber
house. But though Ihecrymewas ber bar- ^
bouring a Uaitor, and was pi-oved only by this <
infamous witness, yet the judge charged ibt
jury to bring her in guilty, prt^temling that tht
maul was a second witness, though she knew
nothing of that which was the criminal pari.
!She was condemned, j^nd burnt, as the l^iw di^<
rec't« in the case of women convict of treason.
She died with a constancy, e^in ton chenrfuL
ne^, I hat struck all that shw it. 8he «aid
chanty was a part of lier religiiMi, as well as
faith : Tins at worst was the fceiling an
enemy : So she hoped she bad her rewTird with
him, for whose «ake she did thiK ^ ' how
unworthv fioever the periton wax, i o «#
ill -I mT, tnrit: She- r- -;. r ': '• -ini had
h") to be ih« 1 red by
fiir ill uub iL'igQ J and tiiai iict ^uutTJug waa %«
301]
tn the county atbresaii]» well kiiovr*
mg ooe John llicka, of Kein&baro, in lluil
county of Somerset, clerk, to bea ^ikie traitor^]
and aj a false traitor traitorously to ha?e con* i
8pir«fl tiiul initt(^ne«j the death and destruction |
of otir said lord the king, aud war, rebellion 3ii4l
insurrection ogainst our said lord the kiu«j*pj
L
pTif#v and our said lovereigii lord the king 19
death and final det^truction to bring' and put,
the S8tli day of JuJy, in the finil year of the
reign of our said lOTereign lord James the
titecond by the grace of God of England,
Scotlaud, Prance, and Irelaodf kingr, defender
of the faithf &c. at the parish of EtUngham
martyrdom for that religion which was fill ioTe.
Pen the Uuaker told me, he saw her die. She
laid the ttraw about Lcr for buraio^ ber sjiee-
dily; and behaved herself in such a manner,
that all the spectatort m felted in tears.
** Tbe other execution was of a woman of
peater oualit) ; Tbe lady Lisle. Her hus-
band hull been a reijicidei was one of Crom-
wetl'k lords, and waa called tbe lord Lisle, He
went at the time of the restoration beyond
•ea^ and lired at Lausaune, But three des-
perate Irishmeo, hoping by such a service
to Qidke their fortunes, went thither, and killed
him as he was going" to church ; and being
well mounted and ill pursued got into France-
His lady was known lo be much affected with
the kiug^i death;, and not easily reconciled to
ber husband for the share he bad in it. 8he
was a woman of g'-eat piety and charity.
The night after the action, 'Hicks a violent
preacher among the dissenters, and Nehharp,
<ttme lo hw house. She knew Hicks, and
treated bim civilly, not asking from whence
they came. But Hicks told what brought
thelii thither ; for they had been with the
duke of Monmoutli. Upon which she went
ant of the room immedialely, and ordered her
chief servant to send an information concern-
ing them to the next justice of peace, and in
the mean wlide to suffer them to niake tlieir
escape. But, bcfure this could be done, a
parly cauie about the tiouse, and took both
ihero, and her for harbonriog them, Jeflcrics
revolved to make a sacrifice of her ; and ob-
tained of the king- a promiiie tltat he would
not pardon her. \V hith the kin^f owned to the
•arl of Frifeisham, when he, upon the offer
of I^QQQL it he could obtain her |*ard*in, went
and begged it. 80 she wat brought to her
trtall. No legal proof was brought, that she
knew that tliey were rclwls : The names of the
'|MsnPont found in lier houM^ wc^re iu no pro-
cJamotion : 80 there ^um no notice given to be*
ware of tlietrK Jcifeiie* affirmed to the jury
Upon hiv honour, Uiut tlie persons had con-
fi^aiied that I bey had bevn with the duke of
Monmoulh, Thin u as the turning a witness
againit her, ufWr which he ogght not to have
judgtd in ihe umtter. And, tlionsli it svaa in-
iijatd on» ai*a point of law, that till the persons
liiuod in her houne wire coniicted, she could
not be found guilty, \fet Jetfenes charged the
jury io a most vioWni li.antuT to bring hrr iu
^ailty. Ail the audienci» was Strang r I y affected
' liith so anttinaJ a liebaviour in a judge. Only
tlie p«nioii moflt concerned » the h.dy hersdr,
who was then past seventy, v^aa so little movid
_. 1* .i-„- ^i-^ .•_!* __i_ _ The jury brought
iha judge tn grsat
1 1
•t ie, that the tcl) asleep,
bar i« uot gmhy* Ikit
fury sent them oat again* Yet I hey broughl
her in a second time not guilty, Tlieti h«]
seemed as in a transport of rage. - He upoa
that threatened them with an attaint of jury»
And they, overcome with fear, brought her in^
the third" time, guilty, Tbe kh»g would she»r
00 other ihvour but that be clianged the sen-
tence from burning to beheading. Hhe died
with great constancy of niiud ; and expressed
a joy that she thus suffered for an act of cha-
rily and piety,"
Ralph, vol. 1, p. 889, seems to infer, froia
the goodness of Mrs- Lisle^s defence, that tb«i
anecdote of ber sleepingupon her trial is not true.
Tha Procecilings in the West of England
against the adherents of Monmouth^ of whicH
this Trial of Mrs. L"is!e Rcems lo have been^
the commencement, are related by ihe dilfe^
rent historians with different degrees of circnm*
stantiality, and more particularly in the '* Wes^
tern M arty rology" and the ** Lifeof Jefleries.**
Tbe fnemis of James have endeavoured to pal-
liate his guilt in these transactions, but I thinl^l
1 have somewhere read, though I recollect not*
distinctly where, that J efleries declared he hati
been reprehended by king James for not excr?
ciaing still greater severity*
And Oldmixon tells us, that Rirke bern[
upbraided with hiscrueltv at this tiuie, jtroLest
ed hiscomniission went farther, and that hehail
puta restraint ^tn the power and the instructit
which were given him, %'ol, 1, p. 71*5, Heti]
also, to the like effect, Echard, Kennett, H.
Coke, and Uapin,
In what Blacpherson calls, " The Life
James the Second written by himself " [;
to which see, in this Collection, vol. 6, pp. ^97f.
et set].] it is noticed, that imprudent ze^il or ok
some «iiid avarice carried bim [Jefferiea
beyond the terms of moderation and mercy, ani
he drew great oblocjuy upon tlve king's clemeti*
cy, not only in the number but in the manner^
loo, of several executions and in shewing mercyj
to so few, oarticularly to [sucii is the esfpre^
sion] an om gentlewomnn one IMrs, Alice Lisle
wiio WAS condemned and executed only for bar-
b«ruring one flick and Nelstrop both ill mem
enough indeed, and the latter in a prodama*
tion ; but iia she pretendeil was ignorant of it,
and therefore, perhaps, might sufft-r for a com-
mon act of hospitahty ; but this severity was
contrary to the king''*^ intentions.— The king
questioneil the Chief Justice, but he pelliated
his 8everitii?8 with the nretence of nece^sar^
juatfce, w hich the king Knew not hovr to con-
tradict, sine* he had the pn cuution not only tO
aend four other judges a«i his* ansistatita abmg
with bioir but IHr. Fohejffii likewise ia <inahty
mm
A
SOS]
1 JABfES n.
trkl of the Ladi/ AUce Lide,
witliia this klogdom of Engfland traitorously to
blife IfiFied and raised : Thou the said Alice
Jiste nflerWBfdSf to wit, i!ie same QQth day o^'
July, m the first year of tlie reigw of our said
nf his Solicitor ; who being a known farourer
of the preabyterian party he Uopcd would mo-
derate tne Chief Justice's heat. This mnde the
kimg' acquiesce iu what f^ad been done, though
it was of great disservice to him at bottom.
Tlie cruelties oi* Kirke were still more inexcusa-
ble than the set erities of Jeflferies ; he caused
many to be hnn^xl more out of a bloody dispO'
sttioci and to satisfy his own brutal passions,
than lov^e of iustioe or his master- s service. It it
not improbablef that he had tttlten io his yiew to
dt^w an odium on the kin^." Vol, 1, p. 145.
And sir John Dalryraple (Memoirs of Great
Britain and Ireland^ part 1, book 2, toK 1,
]v« 8?t 4to ed. of 1771) amon^ other matter in
tartennntion of James's share in the cmehies of
this horrible expedition, says, '* Jl is certain
that x^ hf^n lord keeper North made complaints
4>f what Jefferies was doing, James gate or-
ders to stop them'* [the cruelties I suppose] :
and for this he cites the Life of lord tiuildibrd, or,
as he calls him, North, p. 260. (Hume, too, on
llie same authority insinuates the Mme matter.)
In that work R. North expresses himself thus :
*• After he [the duke of Monmouth] waa
beaten at Scdg-more the lord chief justice Jef-
feries performed his^emorable expedition in the
Wcat, armed not only with a commission of
Oyer tnd Terminer "but also an authority to
command the tbrces in chief as g-eneral of 'the
West, for so be was styled. Upon the news
returned of his violent proceediug', hiK lordship
ttbe lord keeper Guilford] saw the king- would
ea s'reat sufferer thereby, and went directly to
the luofif and moTed him to put a stop to* the
fury which was iu no respect for liisi service,
but in many respects for the eontmry. For
though the executions were, by law, just, yet
nerer were the deluded people all capitally pu-
nished ; aud U would be accounted a camaire^
and not law, or justice ; and, thereupon, orders
went to mitigate tlie proceeding ; but what ef-
fect followed, I know not. I am sure of hiji
lordship^s intercession to the king on this occa*
siou, being told it, at the very time, by himself.''
lAfe of Lord Keeper Guilford, vol. 2, p* 200,
aro ed> of 1808.
Bui in tliis account there must, as it seems,
be foine mistake. J t appears from North 'sown
repreiGfilation, that very slionly niter the ao>
cession of kiug Jamirs, the Lord Keepi*r icti
into thesicknesa, which terminated in hia death,
(vol. 2, p. 201 f) ; that at the time of the Coro-
nation (April USd, 1(^5) he waa so ill, that ** his
l>eariug^ the long fatigtie of thnt i-eremony and
wiJk was neatly » wonder ;'* (p, '205,) that '* in
Kia slate bin lordhhip took a resolution to quit
the ^'at seal and iveat to tny lord Rochester
Id i.^ ' ^rith his uis^ettty to accept it/'
(j^ 1 **^ lord Hocbettter put hini otfj de-
ft^i^ uiM lutdtbip might couUiiu« ke^ftft $ad
sovereign lord the king that BOW U, at
parinh of Elliogham aforesaid, in the ooi
aforesaid, the said John Iljcks in Ifay dvi
ing- bouse, situate at the parish afbresaid, i
be a ficreeo to him iu staTing o6f tb« 1
work" (p. 20T. 34f2) ; that the keeperl
Bisted, and on June lltb, wrote to Ftochesterl
letter, by means of which leave wan obtaiOti|
that the keeper might retire with the seal iat0
the country, in the hope of recoTeriug hit
health against the naxt winter; and that r
consequence of this perroisaioo he went fifit I
Aatrop Weils, and from thence (after the 4*
tors threw up aa Roger North expresses k)
his house at Wroxton in Bedfordsihire, wb
he continued in melancholy and fretful
turity, till bis death in Heptember* (pp. $0T||
et seq. 343).
Now this account seems to be utterly incon*
sistent with what North relates of the
keeper's going directly to the king and moviit
him to put a stop to the fury and violent]
ceediogs of Jeffenea. It appears that Jcl^
first 0]»cncd hts commission at WincK
where Mrs. Lisle was tried oa the S7tli of ^
gust ; and I recollect not to have found
Other person named as having been tried I
upon that occasion. In the *^ Im^
History of the Life and Death of Georj
JeflTefies late lord chancellour of £ugij
(which from the Dedication to Jefll
aud from the conciusion of the Life itself ad
pearK to liave been writlea and probaby
first published while Je/feries was in the
Tower,) only Bill's. Lisle's case is menttonH an
having been tried at Winchester, and
said, ** their other prisoners were <
Salisbury ; and tliis was the most reruarkuibltt
thing at that assizes. From thence they sn
forward ibr Salisbury, where were many priJ
soners tljai h&d been picked up and downl'
country then in the gaol, the which witli th
thai wei-e brought from VVinion were ordered I
to be carried to Dorchester, there not being- eri*]
deuce enough to accomplish what was tlMHJ
designed by my lord.'* With this
Roger Coke, who mentions only
LisTe as tried at Winchester, and then sayiJ
'* Jenericfl and his brethren make haste la
proceed in tlieir commission, and from Wio.^
Chester by Salisbury on the 3d of S
arrive at Dorchester." KjCnn
relating the conviction and execution ui 31
Lisle at Winchester, ouuts all luentiou of Sslb
bury, and merely says the judges went to
Chester* and with tuis agrees Ecliard'fi reU«j
tloD, Oldmix<m and Kapin are silent us to tbv
successive stationn ai which Jtftcries and hif '
associates executt;d their commission.
Ralph says *^ at Winchester he opcneil liis
commission :'^ an<l (afler relating with aoant
circumstautjality the case of Alice Lt8lr,«ml
* CoUin«i says titat Lord Keeper G(«t|i|fi|i
died on tSept^mber ^tb.
cornify ttfhtesni*!^ ^riTctIv% wi<*knny at.«1 ] u[thf>!f!hjgf nu^ niuinrjiinuj:^ of the i^fort'Sfaid
a'rtoron^ly »ti4't etitirlaiii, i'oi»Lru^ comfort, j John Hick^*, meat and diink M\io ihc wiiiJ
and ibiil tli'iu the h9u\ John llirks then anti there tnaliciously imj
ilicrc, for the coniforlmg^
^ <if N^khorp and Hicks) con-
, . and from thctjce,
. .^ .. ^ud h'm collertii*ti, to
Dorchesler; when* Uv hointed hiK hlooity flag',,
nd iiiatlc it ftr^i ftiipai-ent, Ibct lie li solved to
[ire 00 qimrtcr.**
T' thou|Bfh he nflervTurti s yv.-s -.umr
of hidy Li.sta^s case, tooscly suys
-o^au al DoiThi'sLer ; and this, ihough
rirtly true, yet ruorars wiih il»c nther
onit^A, Ihat at this pUce wn» bi^aiii that
uhuit cifusion of blomi, of which North
riles» that •* thoiig;h thp execiilioriH vrerr^ hy
Iw, jusiT, vtt neter were the deluded peopte
_3l capitally punisliod ; and it would lie ac-
couutcd a cartiag«, luid not t»t«', or jtislice '*
lu the ** frnparttal History of ilki- f^ifennd
>eath of fii'or-jfe lord Jeft't-rit eir-
gmstantially reliitolf that at I r the
pnt»(iou wttis read on ThnrMUv tiie 2d of
_ fcndipr^ the jndjifes attended cmirc:h on the
it motTMocr, aiid in the eventng- the chief
B'iiiee «jnve Ikji chftr«je ami then adjiHimed to
|h Iiij^ mommg^, when a bill vfas foaad
I !v persons charged for hig-h treason;
lljd Will) ihi5 account Kulph ajLTrect, and nlso,
to the arrival at Dorchester «m ihe ild of
ptemher. U
lojfcr Norths
It
having lihrid^ed
lifil iiccotiut of the
... . ' of the hod ke«jprr
:i: to ih«* time of lii^ dratlij
y^ary that I should he thiiy
i» order lo n(\t!w that there must be
kke in that sam<* hi*itorifln'» reprc-
ntatiaii that ♦* upon the new* retnrijed ol"
le/FfneM*» riolent proceeding: the lord kee[>er
■rent directly to the kiti;^ and moved him to
ut ft jitoji to the fury/* Vc. bsit it was perhaps
jurlh while to i»hc\v that no such ** jj|}»t exe-
Blions by law,'* am jtcordin^f lo North " might
have
' on
iind
I do
M.- ,. .jr.vitied
North V * Lite/ hnt
Dl , lord ToL 4, p. 31*2,
litiori ot 1 735) he i^ stated (o have ched on
jp|Jtember ^tb» with which uccfiunt agrees
'iilph« (?oL 1, p. B9d, Note) who tnulu not
^otice that the lord keerftcr's repoetcd inttrr-
is pt^otred by tltat fact to hate be«eti im*^
n tliii jiart of Rog^pr N I ■ ilion
|ef« IS mdiiputuMy ^oti* '^\ii**
probably of tin ij>
VttttiLion, or a duU
ptrfaapa with e^ual Uniuv i" oc vi|MwiU'
VOL. XJ.
truitorouvly didst tji»c and dehi'cr, and cuu^eto
ed liow this writer, the lord keep»-r*ii hvothcr,-^
who arrojfntesi to hi mat If the character of a
crilical hi*torinn, who as one of the kins^'s
counstl hjid l>een actively .f*«»> ii .^ "1 Jq the
coodnct of numerous stale ^ , (8ee
in thiM Collection the cases ft . .. . .„ , voh 8,
p. 550, of lord HuHsell, vol. 9, p. 096, of Sa-
die verel and others, voL 10, p, 30.)
Nay, in the prosecution of |ierRon« who were
executed for their participation in these very
trtrasons of Monmouth's adherents, (RCe in ihiB
volume the Casus of Forntey, Ring; and G^mnt)
— should he so ignorant as he telo* us, he was
wheilier any ♦•(ftct had been produced by the
or<f. ' '*! he would hare us believe were
at I sion of the lord keeper issued by
the «*iti- t-> >i<--^ ■' — -.'-^-t---' t' *c-t!V*rics,
M«st certu - au jtuthor
upon whom i* * c.... . ...... '.y be placed*
I will take thi>i o]>porluiiity of correcting xn
error into whjch J (alVer lialph) have been
initled by him. In vol. 10, p. 23S, of thia
Collection, is cited a pa«saj(e from Italph, al-
tcdg^in|^,that the fust I'rotejit with Ileasous waa
admitted in the House of Luixis upou the re*
jcction of the impeachment of FitzharriH.
Ralph asserts this on the oulhoritv of North,
whose wordfi (Part 1, eh. 2, s. cliijare:
*' The king, in IiIk dccluratioo of rcaitousi 3i^>
blames the Comutons, nt the Oxford parlia-
ment, for biiFio}^ im[i<ache«l a traitor (Fitz*
ban is) only to take him out of the handsf of the
laW| ufiJi-r be wa? ordered to be prosecuted. So
it wtooci v^"'"' *»' <'ommous. The Lords^ by
their or St him to be prosectit(<l at
lav.% :ir til.' Murvrni hmeiii. !^o
the I.t*rdN, maile
a 1** ^ 4 the Com-
moQf;. 1 hey tiiunder*^d in votes ag-aioi^t the
Ltird*;, and w«re proceed in|f to demand can*
and to urge reasons. The earl of
ity, and those tn tiff* Ho»t<»? of lA^rrln
With liiui, alter thi^
for the common lu
desired, as t lit it
enter a orptf u.i
T. * JL liicy trryeil
r also the reasons
iiu were ' itU
J.K. tht" * ^ 1©-
I upon the court
\tnliepHutod s&nO
vote,
farther, I
of fturh iii'
to aid the 1 '
their ij ii-ortv
up
lor.!
TOJi larMoht'i. iltocook
ht^ I rthepreit'^, .tirved, Hq|
the jM>iui ui iidraittintf thtvc i < ;i^uu«, to he ca-
terod^ occasioneil tnuch ilrhalc ; it Was tib*
jected that it > ' ' " on
one side to a ( mh
'' -' .r Mil' ; ■■n^u, n uuu "*
uf the <»rder I rid no'
,.... .«^.uo3^ tbtt order Lad ; a« .. ^
307]
1 JAMES II.
Trial qfihe Ludy Alisfi lAde,
ca»
Le given and deliVered, against the duty of thy
allegiadce, against the peace of onr sovereign
lord tlie king that now is, his crown and dignity,
and against the forno of the statute in that case
made to shew to posterity, tliat the orders of
the House were unreaseuable. But many
lords thought it might be an useful privilege,
and $0 it was carried for tlie reasons ; which
was the beginning of protesting witli reasons
in our days. ■ The author [Kennett] takes no
notice of Uiis point of tlic reasons, which was
the only matter considerable ; for what si!:;;ni-
iies an ordinary protest, which every lord de-
mands as he pleaseiK ? It is probable that no
great court, was made by pushing these rea-
sons ; but, that being a matter of form in the
House of Peers, and that fell under their de-
bate and decision, should be a reason to indict
a peer of high treason, I think none, but the
author, could affirm."
But this is a gross and disgraceful misre-
presentation. The admisKion of protests com-
menced in the year 1641, and had been regn-
iarly continued. Lord Clarendon (1 Hist, of
the Rebellion, 407,) thus writes concerning
•the commencement of tlic practice :
<* When the House of Commons found that
Done of their extraordinary ways would tho-
roughly subdue the Hous« of Lords, but that,
though they had very stu^!y champions there,
the major part, albeit the bishops, and all the
recusant loi'ds were driven from thence, still
opposes] them, whereby neither the bill for the
takinpr away the bishops' votes, nor about
presKing, could pass, and that they psfrempto-
rily still refuseo to join in the busiuess of tlie
miliiia ; they found a new way, as unpractised
and as unnatural as any of the Vortnc-r, tv hereby
they would be sure to nave an influence iipun
the^House of Peers. It is aa old nistom, and
privilege of that House, that upon any solemn
debate, whosoever is not salisfiid witii the con-
clusiou and judgment of the House, may de-
mand leave to enter his protestation, which
must be gi anted. The onginal of this was in
jealous times, when men desired, for avoiding
the ill cmseouence of any act there, that their
dicsr>ntg mignt ap]>ear ; and was verv seldom
pi-actisod, but when they conceived religion, or
the crown, tn*nched upon ; insomuch as you
fihall not find, in the journals of many parlia-
ments, one protestation #»ntered; and when
there was any, there wfis no more in the re-
cords, thnn after the rcso.ution of i^e Hor.sc is
entered, thai such a lord tlesircd that his pro-
testation or »'.i;srnt might be rntercd, and often-
times w'lirn se\e»'al iJJive disvente*! from the
general opinion, not above one or two have ci*-
tLicd their piotestatlon. But since this par-
liament, as they altered this custom fmin rases
ol' high CiMiccmnicnt to the most trivial de-
baters, the minor part ordinarily entering their
protesUitiou, to the end that their opinions
made and provided. How sa^'est tbou, ABcs
Lisle, art thou Guilty of the high-treMon < —
tained in this indictment or Not Guilty ?
Lisle. Not Guilty.
were known and published ; to tbey altmd
the form, and instead of short fleneral entricfi
caused the matter of debate to Ge summed op,
and thereupon their protestatioD, that th^
were not to l»o answerable for any iDConvnu-
ences or mischiefs, that should beial th« eom-
monwealth by reason of diis or that resolutiqii.
So that from an act for the particular indem-
nity of the person that made it, it grew- some-
times to he a reproaching and arraigning ths
sense of the House by any iiictimiB number
that disagreed. Then' because the House of
Peers is a court of record, tbey concluded, thst
any man upon any occasion might peruse the
journals ; and so every night the House of
Commons could see how the debates hud been
managed and carried all the da3r, and take pub-
lic notice, and mul^e use of it accordingly,
which they could not do of those disoounes
they received from their con6dent8 ; for sup*
plying whereof this unjustifiable method wsi
found out. For though it is a court of record,
tlie hichcst court, and the acts and judgmeolf
of pariiament are records, to which the snlgecl
may upnn all occasions resort, yet they ongfail
not to make use of that liberty in order (o
question any vrords spoken, or acts done, and
reiMembered there ; of which if the Lords are
rot the only judjres, their privileges are rounb
lesii than tlie Commons in truth have, and may
justly claim."
The following is the furst Protest which!
have found in the Joimia^s :
" Die Jovi«5, 0 Scplerabris, 1641. It
in debate roiicerning the. printmg and publish?
incf of an order tonehing divine senioc ; it
was resnhe^, ui»r)n tlie (picstioii, by the m^jor
part, that this IJoos.? will vote the printiiig
and ptih'ii ^hin? of tiie order made the 16th A
Janunrv, 1640, concerning divine service, be-
fore tins IFoiisr d.'*«;ircs a conference with tli^
House of f Mi.imcns coucerning that particulir.
''I/iris dlssroting and maVing imotestatioQ
again^J the vote, liav:nQf demanded their riffle
of prcttc-Ktation, of tiie J louse, before the puttiiiff
of the *|uestion so to do: Comes Bedfbi%
Warwieke, Clare, Newport: Ds. IVhartQ^
Kymbolton.
**T^)e Protestation:
** Af>er the •'cbate Mi»ont the printing vbA
poMii-bing of the order of the 16th of JanuaiX
I'^i'.t, viz. * Tliat tee rlivio!} service be perfbmMf
• t.< \y is :ippfMni<il by the acts of parliameBit
of this vi:?\\w ; and t'.nt all sucii as shall dil«
ni:ic r)rder shall be severely
to law ^ and that all
I * turb that '^liolesni^K
I ' puni'shed, pocordlng
i ' parsuns, vicarc, and curates, m their, aefsvil
' parishes, shall forbctir to introduce any iftil
, p er ceremonies, otherwise than those wbj *^
Bite, to them, whereby the good and bad fords i « are established by the laws of this land :*
ivkight be taken notice of, and who were oppo-
fotT High Tteamn*
f tried'?
f Xu/r, By God aod my country.
fa of dr. God seed thee a ^Doddeliverftoce.
ben Proclanmtioti was maite for the jurora
bpdiiti^llcd to try the issue between tmt so*
terpign lord the king, and the prisoner at the
teiriL' ptit to the t|iiesti(>ri, whei)jer the Lordu
woiikl order thut it iihuuld he voted, tliat the
soiift order of the 16Ui of Jaauary should he
jjrinlL'd and uublished, h^'fore a coiiff rence du-
«ired %vith the House of Comnions ahout it ;
\\,K uli.vHf niiiH^ r-rf> untlerwriueii, did dis-
fore Ihe |»uttiag' of the
in' ri^'ht uf |ir*>l«»Uitiott,
d»d aciordiujjHy make our protestation, that
We heUi it lU and riect"«sary to hiive the con*
aeol of the [Iou»«e of Commons in lliose thioj|S
which concern mj uearty the(|iiiet and govern-
ment of tlk3 church ; and therefore we desired
to have a roriforpnce with the House of Com-
»mv ' ' order wcte piiote*!
jbr lUy the Mouse of
^' -ht to us, aad
d< unto« certain
vui; > ,., ,,ir_.,,«, ^lUMiii in or ahout
the worsliip of < practised in tltisd
kinodoni. iviLli.iuL .;.L;>riawj and ibere-
< s of ttie dauf^eirs and in*
^ht arise hy x\te printintj
«t 'j^ oi the said order of the 16th of
Jii! _ biadiu^ to the whole kinj^dom,
without tltrbiring ttie consent of the House of
Cummons, we do protect our di^^asiients to tlii^
vote, and do thus enter it a» aforewaid : Comes
B<»dfonl, Warwick^, Clare^ Newport ; Ds.
Wbvton, RimhoUun.**
Loni Moimtmorres (HiM. of the Pai-liaineat
of Ireland, ?ol. I, p. 402,) says, that the fiiiit
KntMst w ilh reftfloos in tbi? Hoii«e of Lords of
etandy oocura under dat^ ftk<{»l«mh«r 1st,
Sir Johd Da]rympl€ at the end of part 1,
book ^, of hiii Memoirs, 4to edition ol 1771,
tells lis that the kjng*s enemies reported tliat
be Ctidedthis ctreuit ** Jcffreys's Campaign."
^f the contents of sir John's Appendixs:i» are
Duiuet he needed not to rest the fact that
Tmmes gave this appellation to JeflVeys^H
btooity pro^ieas, for he has inserted in his Ap-
p< f ' ititrt 1, two letters from kiu^ James
V> of Orange^ one dated Sejitemher,
lo I - lii .; i *! Tause, *Lord chief J4n»tice
* iH n. ikiii- ^'^n in ibe west ,* and
Uie "tlkrr, o-..^,j Lmc <;Hhof the same month^
coiit.iriiii;'^'^ these exprt^s^ions, * Lord chief jus-
« Lrrc l« '- iliin.\t limit* Wm camrmlgn. He hiusk
* a I r t > ^tveraJ ij u uil re« U, some
* ot «ii i I V executed, more are to
* be, and ihe rent sent to the plutiLUiutiei/ Ac-
rordiny-Iy, in the suhsetpient fJvo e<huon of the
M r John KnyHof this report, that it
1^ ' The hrutality of caiUug^ Jef-
A. D. 168S.
bar, to appear. And lite prisoner desiring, b j
roasoa ut liei' m^ Hud iiifirmities (^>ein^ lliif^
of ht I lo friends of her's might l>e al^l
loweu iiy her, and inform her of wha|j
pflicseilin the court ; one Matthew Browne wa
named, and allowed of by the i-oiirt to give he
all usmtame tinit he could in that mattctt'l
Then the names of the jurors were called *»Tei^|
wbitt eitennated hy a fact related by liistorian
that the chief justice had upon that occasloa j
mtlitiiry connnisdion* 8ee Ralph, 8tt8«
Tn the ** (m partial Histonr of ,thc Life anfl
Death of George Lord Jenre^'s,^* it is fuutt^l
that • he was Jieutenaiit-getieral, and gav
* daily the word and orders for going
* rounds,^ &c. It is moreover observahle^ tha
in the very paragraph to which sir John Dal<*J
rymple reiers as his authority for the storj^
that James upon the interposition of the lorij
keeper, checked the carna^ of JeflTreys, Nort&|
says, that ' the chief justice for this expeditlo
*• was anned not only with a cotnmisinQii
* Oyer and Terminer, but also an authority ta
* coram<md the forces in chief, as geocral < ^
' the west, for so he was styled.* Thia unio
of military and judicial power had been in tht
preceding year practiaed tn Scotland, as ap^l
pears by the fouowjng passage in Fountain*
hall : ** Dec. 4, 1684. The privy council
grants a commission of justiciary to tieutenaiKH
geiitral Dnimmond, to take a part of the forcefl
with him to the western shires, and to hang, J
draw, and quarter, by the military law, all thatj
refuHC to own the "kinaf's authority." S^I
also, 2 Wodrow, 401. 2 Crookshani, 269/
In the " Impartial History of the Lite and.
Death of George LonI Jertreys," are giTeilj
the namei of two hundred and iifty one per»j
sons, who were condemned and sulfered in th^
west, in the year 1085, under his sentence.
The following passage in Wodrow, (vol, 9^^
p. 5M* ^ rf»l.«t^^ t*» l*»^♦r"V^ : •« I shall shut 1
my a [1684], by noticin
the tiA , ''* tffixt our maoageri
[he is s|ieakiiigot ih*' pr!*y iotmcit] at Edii»*
burgh, oml hlootly Jelf ley sin Eu;;lnnd. birdfj
of a fealhec Hock t<i;^ether. Only Jeffreys wii#4
tied down by the Ei^ghsh laws, fur lt'«^ san«T
guinary than ours at this time. However, h^ j
went as far ns hf^ could to stretch the laws^I
and sooic t ikI oficrs hui service to onfi
people at t Aeconlingly^Dec ttrdgl
tlie a<lvocsiiL' te^iresentirig huw ready judj^i
Jetrreys was to join wuli tlic ooimciriiir bup<^ j
port of rVr-:- •" — t* •
turn i
raenti. .,i^ ^^ ;.-„^,. ;..
ibin kingdom, m -
aifufu^t ikucli pertiur
th the inil
:tiendfd to
\l reseut-
-net'
ti ^ 4 use ar»pn I
Mid iugUivc S
curely on the S.
be appointed to tu^utt^ lh«4u/*
MtUi iit skiJi
SllJ
1 JAMES II.
and the appearance recorded : And it' being: a
cause of f^reat expectation nnd moment, the
lord chief justice ordered tlie sheriiT to tuke
care, that a very siihst.'tntial jury should be re-
turned, of the besL quality in the county.
Then Proclatxiation for Information and Evi-
dence was made in uiiual manner, and the pri-
soner was liid to look to her chalieuges, and tlie
jury Wiks sworn in this order.
Sworn: (5abriei Whistler, Henry Daw ley,
Francis IVIorley, Francis Pawlett, Richard
Ciodfrcy, Thomas Dowse, Dutton CSiftbrd,
esquires. — Challenjjfod : Uobert Barton, God-
sou Pen ton, Williuui Taylor, Thomas V.- a veil,
Anthony Yalden. — Sworn: John Ca<;er. —
Challeu^i^ctl : Robert Forder, I'homjs Lloyd,
Thomas Philip Riidsby. — Sworn : Tuo-
mas ("rop, Richard S-.iatt. — Challeni^ed : Law-
rence Kerby, .lohn Fletcher, ^Villiam Clarke,
John liaily, Richard Sutton, Richard Snatt,
Robert Burjjess.— Sworn : Matthew Webber.
— Challentred : Georjje Prince, Stephen Steele,
Thomas Merrot. — Sworn : John Feilder.
So the twelve sworn were these : Gabriel
Whistler, Henry Dawley, Franci:i 3Iorley,
Francis Powlet, Richard Godfrey, Thomas
Dowse, Dutton Giflbrd, John Ca^er, Thomas
Crop, iiichard Suatt, Matthew W^ebber, John
Feihier.
CL of Ar. Alice Lisle, hold up thy hand.
You Gentlemen of the Jury that are sworn,
look upon the prisoner and hearken to her
charge : She stands indicted by the name of
Alice Lisle, &c. Upon this indictment she
hath b€>en .irraigiie.!, and upon that arraig^imf'nt
fihe h.is pleaded thereunto, not <;uilty ; and
for her trial lies put herself upon God and the
country, w hicli country \ 'ai :uc ; Your ch »r«^e
is to cnqaire, ^ilu-tUji* she he j;uil;v «»t tlie
hii^li treason v. hcrtol'sli^ is iij'.luicil in uMUiier
aiifl form as s>ho slaiius in ii(.'t:.'d, . r not i^ui i j :
If you find hcririiilty, \i.ii areiouiquii-f wIkU
priHxis nr chattels, lands or trutnients vXw had
at th': ;Mne ut tlii< I:iirli.treav>!i cotnuiitted, or
at any time since : if you liml her not ^uiit) *,
\ou aieto ctiiiuirir whether ^he did iiy tor it ;
if you fiod toUt she .iid tly lor it, >o(i ar*; to
( ntpiin^ \\\iw\. ;^oods or 4-hattel.Shhe had at the
tiuu'otthnli^iiK as ii'voii had found her ^-iiilly.
If you fnul iitr not^uu.\, nor tliat she did lly
lor it, \ou arc to say sii, and uo more, and
hear your evidence.
Mp. Mujili/. "May it please your lordship,
onti >ou ^Tnilcnien th t are sworn, Tins is an
indictment of hij^h-trcason asfninst Alie»» Lisle,
the prisoner at tlie bar ; and the indictment sets
forth, ilial she, as a fiUe traitor apfainst our
sovcroiijn lord kiujj James the second, her
8upr(*nrif; and natural lord, not havin;^' the ft'ar
of God in In r iieart, nor rusfardinif the duly nf
her alltLTi.'uce, hut heint^f moved and seduced
bv the instillation oi' the devil, and witliilrawJDg
tfie love ami iruc obedience which she owed to
him as a sovereiirn, and intending, as well as
in k«r l%V| tt disturb tlie peace of &e kingdoni,
TnatiJ'ihfi Lady AUce Li.'lf,
[3I«
and to depose the kin^ anu put him to death,
the Q?A\\ flay of July, in the first ycarot tlui
KJni>', W' II knowing one John Jiicks*, late of
* ** This Hic.k«i way a dissent iii^ minister, and
hanired afterwani'* at Giaswnbury." Former
Kdiiion. In the " Western Mailyroloj^y, or
Bloody Assizes," are printeil some Letters, .
which' were writien by Hicks shortly before
his Itlxrciition ; and also his D3'ing Speech as
follows:
<' 1 siipnoKC the spectat'^rs here present may
expec^ 1 should s;)eak something l>eloi*e I leave
this san«^uinary stac^'e and passage tlinm^h mv
blood V si.'tlV.riii^K, by which my immortal spirit
will he spi-edily transpoited into an invisible
and eteniul world, and I conclude that they
have diflerent resentments hereof. Some re-
sent them with much joy, high exultation and
triumph, oth(?rr> with equal grief and sorrow;
that to the o\}o. I nm a most pleasant spectacle,
that the\ behold me with hii;-h cr-niplacency
and (!elii>!il ; but to the other J am a mournful
and unpleasant one, and tliey behold me with
no less pity and compassion. Concerninijp the
first, I can siiy, 1 freely and heartily forgive
them, and livartily pray that God would most
mercifully and graciously prevent their mouni-
in<; through misery, not only here, hut eter-
nally hereafter. Concerning the other, I will
sa\', wc(*p for your own sins, and for the sins
of the nation, for the highest rebellions that
ever were committed^ against the ^reat and
eternal God; lament biiterly for those sins
that have Iieui the meritorious cause of the
Inte terrible judgment, that which 1 fear will
cause Goil to break in upon this Dutioo with
an overnwwi'.ii; delugr* of jtidgments, which
arc far m>>.e Liemrndous and difadfut. As for
syr.ii»aihi/incr ^vith me, in driiiking this bitter
cup appointed for ine, I. return you most hum-
b\v and heariy thanks, earnestly desiringf God
to come unto you, and (ill your souls with all
riL-iLsiial (u:ir.ui!-j and spiritual coDsolatioiuw
SiMit'thiig I ir.ustvay to piir^e and clear. roy«
M 1: li'o:ii a fui>e acrusuLi:iu laiil to my chari{e;
us (hat I was (nsrat^ed with colonel Blood lA
rcs'.-uin.f lo!. 3jaiii>ii n-.ir Iloston, when he was
f-ent down with a •^uaid from Jjondon to \'ork,
to Ikj tried tor hij'h trerivon; and that I was
t!)e man that killed the harlier of that city;
and th:it al.^ ) I was wiih him wh{.'n hef^tolethe
crown. Now as I am a dying man, and upOD
the VI TV brink of a very stupendous etrrnity, (the
truth and reality w h<' leof I firmly believe)
without any rrservatioii or tiie least cqnivocm-
tion, I do declare in the presence of the aO«
seeing God, that impartial jtulgc, licfiire whom
in a very little time I must appear, 1 nevemw
nor conversed with Mr. Thomas Bkiod, -from
1G!i6, till after he stole the crown, which wit
in 1671 or 1672, nor was ever engaged wilb
him in any of his trea<:onable plots or practiom,
Kt is true, I being involved in great trouble of
another nature, ^of which I have given to the
world a Narrative, and which is notoriooslj
known in the country where 1 thein lived,' bf
' JtrJI^^Tftmm,
A.D. 168ff.
pT*
IIP ''---:*- ^-^ t clerk, to I traitorously entertain, ooncciil, und a>::
|ti nar And tnc^itj .mtin Hic*^, und fur ins ruaitit'
jjru.ii^ -j.i >v,...;, -i.T i.iw iiua at I'J- I atifl cotufort tlj«n g'ftve hiiii iiKiit nml ti*
^Imai 111 liiis count) , i\\ tier tin'^-Jtitiir-liouM TXiis ik Inid to be aipiiuiil the dut^ of \ntt ^\k
Muc tU&L were iTternipn to me ior my [iresch-
l) 1 %vas< pt^iKuadcd to ap^ly luywtlf lu Mr.
Himid, to procure liy bin iiittirtTesaioii his tate
lijciity^s g-ificmu!i tWvnnr : Accorditi^^ly lie
Niuj^ht itie into hi$rt>\a! prusenct^ ; while ]
bas thtfre, \\y% majesty fiirrifd it \*ith ifrcftt
emeiicVf wiiliout i-xjirei^iii^- one v/wni of tliat
hicK I am now chargctl with. Mr. Bloud
Outtiitted Willi liis majf^^} ^ ' ' '--(u 1
pd ; thru lie told me thut I t^c a
irdoOf wliif li 1- fiid tliiiMKMi <\ ^in u|fL of,
powitig^ it would free luc f Voin all pennltieK and
DtiLles thut I wai! obnoxiot'-' *«» ■'"' "' ' •»'•
cutoned tii me by my not)
^^i^iiig hi m to takeout In , ^ ,
e, ^ Thit be got it ottt with scvcrai olbcrs
dlixit bud Jieen t'lifjagcd wi^b \n\\\ m iever.it
';reasunal>le ditiitriissind iu tions ;* atx^bicbl
vuii tJ'oublcd, s)i|>poMU|^it ini\(bt be iimputed lo
' tbereby ; yet, liod knows, I bave cilfcO
ipoe rdlecled upott it witb ^te^X regret and
'- ^olbdaotino. if Mr. Blood did iniorin tJie
iking^to make himieiribe more coniider-
H09 and to ^ ' ' ^ . be
lid %a &r .i);bt
Bi! - toy
, or
tiiin
^of bis tri'a&iiinablt; atttttiptij ; i UtAV op-
I Gud, a§ a '^ii^fT ui^in, cimccrninic it^
|at he bath done me itn irreparable vtxong'.
[also in (be same rnsinner do ileclarei that I
as> n^«'eni»^g«:'d wiib any parly «i plotting-
• desiguiojj* or i-outriviJtif nny trcaiwn or re-
elbou9i^in<«t tbela^' ^ particularly*
bat f wiuftfitoi^^iber i i-il in, and un-
*> hat 111 ^lii^J) iitylonl Russell
d. and aii mucb a Ktruii^er to
ui'v J * Aod v*'bereiis
it iJi k aouton I (ler-
fliade^ii iu-r fill iijLKjvi .<i liiiiiiutlk to a&sttiote
%K title ot kin;:^; I do once more soleiiml) de-
jiare, lliat I -vaw not »!''• ^ "i .iul.- n-.r had
ny can%t'»iw' uub bii ton-
pallet, whicli wan I be
, and several iUy» utter he hnd been nt
UDlon- And it it ds (laltie tlmt 1 rid lo and
in lb<» WcHt to Mir up nml prrjiuade men lo
» into bis army, and reWl ug'tiinst bik present
ftajtMtv ; tor I was iii the east -c:t>uutiy when
l^c duke bodetl, »n«l from (hence I went di-
al 8bii»tt>n-MalM,
I me from tbene«.
• ■ rung
(lau
r^u^^on,
11 t word of
bkcwjse
I (be doc-
„ Ml I bate
free choice of, and b»«vi^
\ him II \
* timn at I
Kitberto as 1 m
profcssinif the •
eaJlcHl li*.
mided un the
Lliil iihlrli I
I be.
inc *'i
wle a re:i
iiQi only S45 it protcsits
a|y^ainst all I'ajjfan and I^Iabometatirelt^ion, but
OkT^inhl tbL-C4^rrnptiouof the Chriiitian; nod 1
humbly and earnestly pray lo God I bat by bin
infii^ite wiidom and almi^bty powei% he wiU
prevent not tinly the utter eilirpalion but lU '
miniiUoii ihet^'ot, by the height and inllueiu
of what in contrary thereto ; and for lb>it emt
the Lord make tiie professors of it to live Uji
more to if ' ' rules, and briinL,' their
hearts a n^, i Hire under tbe^^ov ern-
ment and jr.v*t t m luv -iime. 1 diealsu own-
intf my ministry, non-conformilVv iur which i
w .vr, ."tHT, ri^.i r.. ,,.n-i. attd which doth itow
iiixtl mercy to be ma-
vne: For as I chose
It not cunKtraiuedly^ so I appeal to God ts a
dy infr man, not inoved from »allenness or hu-
mour^ or factions temiwr, or erroneous prmei-
pies of education, ortrom secular interests* or
worldly udvantni^, but clearly frotn the ilic-
taleii of my uwn cousciencc, and as I jud^e<) it
to be the cause of God^ and to have more of
divine tmtli in it than that which is conlrary
thereto ; so now I see no cause to repent uf it,
nor to recede fn>m it ; not qtie«tionin|{ but God
will own it at the last jndtjmeut-day. If no more
httil been reipiired alter the late kin;^'i restora-
tion to qualify ministers for public preaching,
than was after the tirst Restoration from th#
time of Charles tlie Ist, probably I might
have satisfied my self therewith, and notscrufded
conformity thereto ; but the terms and con-
ditions thereof, by a particular law made in
1663, betntc not only new, but so strict and se-
vere, that I could never have satisfaction in
ray own conscience, after all endeavours used
lor a conmhunce thcrewiih» and a conformity
thereto : To say nothini^ of Ih^- covenant, which
I never look, but lbe4'i\in^ my asscntand con-
sent* have been too di^hciiTtatid bard for me to
comply with. And 1 icry wfU remember,
that about 14 y^^rs ayi^o, enteiing into a dis*
course vrith ^]\'I Patrick lleldoic, an Irishman,
who wa5 contemporary witti me in Dublin,
ooiici iiiin^Trmiormity, whicli he much cndca-
?oi!i lue to ; { urged the seieiity
of ii. d conditions again Kt it^ and
afler some debates and reiiotia with bim, T
told bim I did believe they were contrived aud
dL'Ht^nc'il on purpOHP lo prevent our public
preaching, and io keep us out of the church ;
to which he io. \ replied, * He ludged
Mt was so : y , a bi*ibop in 1 rebuilt
* (whose uaujr i n;i^e forgot) told uie the
* very same/
cou«pj«:r 's e
that did il , . . . ., ,,.,., A
disputes, and mo!«it ^ ilebatet, and ^io*
lent contests belwtt . >iiist au<f nnii* on-
formifit, iheve are of both [Kirties >i •-
tied tu hetveu hercafWr. Accord itc
315]
1 JAMES II
ipance, agfarnst the peace of the king, bis
crovrn aod dignity, and n«^ainst the fond of the
statute ia that case inaue uud provided : To
she has pleaded not if uilty ; it we prove thii
fact, you must tind lier guilty.
Triil of the Lady AHas Lisle, [SlS
Mr. PoUerfen. May it pleaie yonr lorMiifr,
and you gvnUemen of thejury, 1 am of counwl
iu this case tor the king, 'fbe Drisun%r that
stands now at the bar, Alice Lisle, is the wi-
dow of one lisle, who was in his lit^ timefluf-
29ih article of tlie church of Kojo^and, a visible
church is a congregation of faithful men, in
tlieivhich the pure word of God is preached,
the Sacraments of the Lord duly adminislered,
according to Christ's ordinance, and all those
things that of necessity are requisite and ne-
cessary to salvation ; so with such a church
have I held the most intimate communion, and
with such .(did 1 live) could hold it : I would
not therefore be so incorporated with any
eh arch, as to exclude me from, and render me
incapable of holding communion with other
churches : 1 was never strongly bound up to
any form of ecclesiastical government, but that
nnder which a pure aud undefiled religion doth
flourish, and tiiat which contains and really
practises holiness, and a<lvances the kingdom
of God ill the world; that can I approve of,
aud willingly live under, were i to live.
** I did approve of the ancient and present
form uf civil gov«'nifnent, English monarchy
1 am fully satisfied with, and do also declare,
that it is not warrantable lor any subject to take
up anns against, and resist their lawful so-
▼ei tti^us aud rightful princes : And therefore
hail I not iieeu convinced by several things that
I have n*ail and heard to believe that ihe
latednke of Monmouth was the legitimate
•on of his father Charles the 2Hd, I had never
f>ue into his army, judging that without this
could not be freed from the guilt of lebellion,
which I always resolved to keep myself clear
from : And though liis father deni^ he was
inarri'.Ml to his mother, I thought it might be
answered with this ; that kings and princes,
for state- reasons, niien cannot be fathomcid by
their suiijects, affirming and denying thiut^
which otherwise they would not do, and make
even their natili^l alfections to truckle and
•tooj) thereto. I exhort all to abhor all trea-
sonable plots, and pretences « of all rebel-
lion, with tlie highest detestation and* to
take the plain text of sacred teriptnre to
walk by, in honouring and obeying and living
m subjection to rightful kings, and not readily
to receive, or suddenly to be impressed with
evil it^ ports and defamations of theilft, also not
rasiily to bt^ propagators of tite saihe.
** i desire Goil to forgive all tiiy enemit-s, and
to give me au heart to forgive mm, which are
many, some mighty, and aU most maliciour:
Particularly Barter of Lisnsi, who betrayed
me, and proved such a traitor to James duke
of Monmouth his old and intimate fVtend. I
am grievbfislv aifitcted tlut I should' proVe the
occasion of the great surerings of so many
persons and families : bot tliis hath fallen under
the just and wise ordeting of Divine ProvideoGe,
M David's going to Abimelech, when he
proved the oocaskm of tHe death of all theper-
f isd ddiiMB itf tlw Gpy :
But who shall say unto Ood, What doest thou P
The care of my most dear wife and a great
many children, I cast noon Ood, who I nopa
will be better than the best of husbands unttf
her, and the best of fathers unto them : God
knows liow just and legal right my wif^bath
unto her estate ; to him therefore I commit hei^j
to defend ber from the violence and oppression
of men, particularly from a mdst inharoant
and unnatural brother : But no wonder if be
will lay violent hands Upon his lister's es-
tate, that hath sO often laid them on his
own father. 1 die a deeply humbled; self-
judging, and self-oondemnuig sinner, loetii^
ing and abhorring my many and great
iniquities, and iil'yself for them, earnestly
desirinif full redemption from the bonds of
corruption, under which 1 have groaned so
many years, longing for a most perfect con-
formity to the most holy and glorious God, the
only infinite pure Being : thirsting for a perfect
diffusion- of his grace through all the powera
and faculties of my soul, panting after peifecl
spiritual life and liberty, and a consutnmate
love to my deareit Jesus, who is an all^com^-
prehensive good, and to lie satisfied withliB
love forever: A vigorous and vehement seal
for the ProtestHnt religion, with a belief I had of
the duke's legitimacy, hath involved me iaMk
ignominious death ; yet blessed be God, that by
sincere repentance and true faith in toe
blood of Jesus, there is a passage f\tem h
to a glorious eternal life, and from theie
bitter sorrows to the fulness of svNseCeA
joys that are in his presence, and frotn
these sharp bodily pains to those most pul^
pleasures that are at his right hand fbtr eirer^
more : And blessed be God, that such a dealb
as this cannot prevent and hinder Chrial'i
changbg of my vile body, and fashiohin^ it
like his glorious Body, in the general Resur-
rection-Day.
** f am now going into that world, ' Where
many dark things shall be made perfectly mil-
nil est and clcar,and many doubtful things fallj
resolved, and a plenary satisfaction given' coa-
ceming them ; all disputes and mistakes con-
cerning treason, rebellion, and schism, shall b^
at an end, and cease for ever : Many things
ttiat are innocent, laivfiil, and laudable, whim
have foul marks and black characters atomiit
and fixt upon them here, they shall be petf^
feclly puritied and fully cleansed from there:
whereat one view more shall be known of tfanu^
than by all Wran^ing debates and' eager dls^
putes, or by reading all polemical boon cotf- '
ceming them here. I greatly deplore and btf-
wail the greedy appetite and insatiable thfasL
that prolMsing PMestants have after thebkRMJ
of their brethreo, and the high pleasara ife^
tidte k the cffumd OAeofT But wfaK «■
•»}
fat fBgt TVftwcMi
A. n. 1685.
w
TT,.
Lcf , Jl'illi ^: .
OQft ihxLt t'
T-r -nr nf the greatt' " , ^ . , -^ ..-•.,.,
T he t^'Ms ]M
i+iii iiiti persuade aiai t-AinMi mmum levui j>(»(
'^(m^y that happened to have tiie mistbrtuii
I vf (leing taJteii prisoners by that rclielliuu
Ufit liifii <h). vvlifti iJu-f Tiff* ritlivr iurllruillv
' rated wilii it,
» the hfe and
n'ui aud fK*wer, anil spade
■t iherfiinto P
ire and pi
;-..ich I TV "
t oidv (d «
n I
news <d Christ U
t , of tiie rtghieou»*
j ' , and he hath hecn
ttiade muct) more dvar iuiJ prftciotis to my soul„
than ever he iva.s hf^fnre. Herehy my aoul
baih l»wn m ' m the dross of sen-
■ualitv» wro e heavenly frame,
raisecf uu to :r m-iur pitdi of spirilualily ;
liOrehy l am made more meek and fiuDihle,
^i„i.: ,...1... ,..,... I... :...tK. * .1,,.^^ ,|,3t
<3'i nt: So
t" « ii isdy and
li le a far
>\' glory,
H better
i to be a
g-iHce ant I
iU
or, and far
Mini*'. iXy U
•trcnslh of God, I will not purchuse my Jii'c by
the Jt-^Ut and blood of my IVutt-MiAnt tirethren,
but chuse la die rathm- than be a l^etrayf^r of
thr :*'-'< V ' ■ ' ' thlH
I f>e
€i
liv
lect hi io<
mutatii'^ , h
|i> dio^ tbati if J [vMi
cumherrd wriili infiirr
stoop undi^r
ivhuh i
fttul tn
witli lis
Iijglih
I Olllfik-n
Uie difiiciilt s
t^'f" * ^' • 111- p - -
the bla*
most free and ppwerfuJ grace^ trut fklih ItA
measure hath changed the difi '
ility an<l easiness of dying ; It 1 v.
much subdued the reluctancy of my wi
ngain'^t it ; fur it makes future'tJiings present^
and » ^ungTi viable, and doth rtaliiu
and ' 1: ihft »«me 10 me ^ and nn li«
hiy^ ' ' ,. - - ^
iiciM
i.t... '
The world is crucified to meb
,..,,» ,., V.J, vurUl, and ail ihe most pliuyaiil
and defij^hitul objects therein, all Hnite» Mm
crtaurrs, comfuptai and enjoyuieut's, are bt--
ite and Hmalf, des^plcuhle and cotiJ
^ , ''1 nie^ in comparisou 1 hereof. b*^i(i^
1 n lin k tt I y eon timed and cum prebend* : 1
vShall my soul elasp and cling nboiit r • j
tal and peiishing thiucs ? hhaW it citrate mM
be glued to thtroi' Shall it be confined unif'
captivated into w hat Is kept in the narmH- bount)|
of lime, and In this louer woHd f Shall it car-?^
neslJy desire and thirst lor muddy strwuna^
yea rivers of fleah- pleasing good J when bv aH
eye of faith 1 can look into the indeficienu iir
exhaustible, purest fountain j tiie tmmen*
immeuiiijruie ocean «f divine g\>od ; hoping ^
drink thereof, to itwim and bRthe my ^ou^
therein fur ever and cvcsr? And when'i *Hin-l
aider how long my k&r^ have beeii bound i»n
and tied to tliPir itiiiiinerable and horrid oatlw
and curses! and mine eyes to
the proph M .,y of God fand wl
1 beheld hu<:h sai o\erUoWing flood of nhj
pixxiigions impiety, f nch an inundation of tuo,p
monstrous iniquity, and ao murh hell upoq
earth, and that there i& so much d^cay of holr
zeal, and true piety, and tlirisiian religic
amtiogst the profeseiorfl of it, Kuch seetuii
incurable breachts and djvieions, inch e
pinng love, and chanty, tmtl partings among
them ; it hath powtrf-i ."U...,..„, . ; . , ^^.^Jj
; ucoficile it more to ^,[Q
M V 1 1 y , an d fro ro chu . , , , , . ,j
world, and to take up ^i\ hat vibifl
is iinst'tn and i\nm*\ n (,", : ;^ ^[^ji \^^ ^
i holiiM«ai hmtL
■'h ull uiiweftria^u
uipll
inacc tmd iMomv&f I
t»r aiig#]«, Md tlie 1^.,.,^^
(ill fa^teoMl log«UMr
nteri-npterl rhnin^of
_ , 111" J II lumpiiiii]^
♦T. Th*^ i^ouaid«
319]
1 JAMES ir.
Trial of the Lady Alice Lisle,
\m
crew, to (}uit their dutv and allegiance to the
king', their sovereign lord, and hecnnie par-
takers M'ilh them and the rest of his traitor-
ous accomplices, in taking arms under their
profound, and divine mysteries ; of the most
glorious mystery of salvation by Jesus Christ;
that I am so uncanable to fathom the depth of
the p!-o¥idence8 of God, whose ways are ui the
tfea, and whose paths are in the deep waters,
;ind whose tbotsteps are not I^nown, and parti-
cularly in the late stupendous and amazing
one ; and that I am so ignorant of the nature of
angels and tfpii its, with their offices and opei*a-
lions, an<i of their high and glorious excellen-
cies ; and that 1 am so little acquainted with
the nature of my own soul, as at present dwell-
ing in, and united to my body, and as disunited
and separatcti from it ; how without corporeal
organs it shall most vivaciously and viurorously
perform all its proper functions and ofiices, and
more than ever stroniji^ly and indcfatigably
serve the Lont Jesus, most fcr^'cntly and abun-
dantly love him, and delight in him every way,
much more obtnin the supreme and higHestend
of its creation and hein<^ ; and this makes lue
much more willintr to die, that I may have the
knowledge thereof, wiiii innumerable other
things ; that I am now either ii^norant of, or do
but im {perfectly know, and so be made happy
by a plenitude of fulness of iitjoyiiig intellec-
tual ]deasures, which are of ail other most
suitable, sweet, and satisfactory to iumiortal
souls. And also i see that he that departs from
iniquity makes himself a prey ; and so many
plungiug themselves into the ways of iniquity,
Jest they should be accounted odious and vile,
which makes them so much degenerate not
only trom Christianity, but from humanity it-
self, as if they were scarce the excrement of
either ; contemning even that most noble, ge-
nerous, heroic spirit that dwelt in mr:iy hea-
thens, who accounted it most hono.irable. and
glorious to contend for their rights and iibertios,
yea, to sufler death, and the worst of deaths, in
defence of the same ; and judge them accursed
and most execrable in the world that i\\y so ;
and not only so, hut for their own profit and ad-
vantage, have many of them inslaved their
postenty by it, and are roost industrious and
laborious, most fierce and furious to destroy
them, whereby they are become as unnatural
as children that seek the ruin of their parents
that begot them, and brought them forth ; or
them that lay violent hamls upon themselves,
dashing out their own hniin^, cutting their own
throats, hanging and drawing themselves, rip-
ping up their own bellies, tearing out their own
bowels, they lieing in different senses children
and members of that body politick they design
and attempt the destruction of; and when I
know not how long the liuration and continu-
ance of these things shall be, or a conclusion or
and by God shall be put thereto, who bv Diviue
and unerring wisdom governs the world ; why
shall my soul be unwilling to take its flight
iQlo tba uDSfsn and eternal world P Where no
false pretended prince. This, my lord, we
shall prove to you by plain, evident, and an*
deniable testinaony of those very persons whom
this seducer thus applied himself to. Gentle-
sullied, sordiil, or impious thing, most incon-
gruous and unbecoming nature, shall be seen
and found, and where I shall behold no narrow,
conclusive, contracted soul there, habituallv
preferring their private before a public good,
but all nu)st unammously and equally center in
one comniun. universal good, and where the
srghs, and groans, and cries of the afflicted and
persi^uted shall be heard no more for ever.
'* I earnestly exhort all most highly topriie
and value time, and diiigentiv improve it for
eternity ; to be u ise, seriously and seasonably
to consider of their latter end :* For by the irre-
peai:iblc and irreversible law of heaven we musk
all d:-^:. vit wo know not how, where, or when.
Live wiLli your souls full of solicitude and care,
with a most de;'p concerneducss and most dili-
gent indnstriousncss, whilst you have time and
opportunity, and the means of gi'ace, hcaltli,
and strength, make sure of these two great
things, viz.
*' 1. What merits for yon a right and title
to eternal life and glory,' aii<l tlie future un-
changeable blessedness,' as the Kedcemer's
most pi-ecious hloml and righteonsiiess ; that
thereby a real application and imputation may
be unto you by sincere l»elieving.
*' 2. That that which makes you qualified
subjects for it, is the great work of regenera-
tion, wrought in your souls, being renewed in
the spirit of your ininds, the Divine Nature
being imprest upon ihem, repairing of the de-
praved image of God in you ; tliat lieingr trans-
formed into his ir.vn likeness, thereby in the
world you may mind and favour iiiore the
things of the spirit than thcthines of the'flesb,
celestial and heavenly moie than terrestrial
and earthly, superior more than inferior things:
an<l therewith liave a holy life and conversa-
tion conjoined, that results and springs fron
the same, as fruit from the root, and acts from
the habits. I^et all, in order thereto, seriously
consider these lew texts of sacred scripture, let
them predomioately possess you ; let them be
deeply and indelibly transcribed upon year
souls ; let them be assimilated thereunto, and
made the wrillen epistles, the lively pictures
thereof. Mat. v. 8. '30. '< Blessed he the para
in heart, for they shall see God." Ver. S9.
" For I say unto you, Except your righteous-
ness cxcetnl the righteousness of the Scribes
and Pharisees, ye shall in no case enter inis
the kingfloni of heaven.*' John iii. 3. '* Jesiis
answered and said unto him, Verily, verily, I
say unto thee, except a man be born again, he
cannot sec t':.» kingdom of God.*' 1 Cor. vi.
9, 10, 11. " Know yc not that the unrighteoaa
shall not inherit the kingdom of God,*' Ace.
c;al. V. 19. 20, to 23. '' Now the works of the
flesh are manifest, which are these, adalteiy/*
•Sec. James i. 18. ** Of his own will begaihe OB
with the word of truth, that we should b»ft
S
! prince
iiUt ill A
/» : then
tfler it p}«Med God, by bis htessioj^ on
lk« victorious arms of the Kinqr^ tb«t the re-
hds were defiealed, thcjir
ftni heail vttb matiis of thi
were takrii prUoin
I tteftr the house whei t
^hen all the ooun^ ^v '
eait utW ibiise wkki-
N^ Tiigahond»,
ioeitius Hicks,
tu m Warmuifiter iti the ucxi ciuijij% send a
Mciicnger^ ooe Dtintiv, to iho *iri^oiu?r*«
home, te desire her and rcqiie?r .he
waiikl reoeire aiwl harhour hhn nd
trho that was^ will apjjcar tv > i . ^Irs.
isih' rctuiit!^ svtiansvitr l>y U; n- « • ::i ;, ihat
ihe vvouM receive him, hut doc^ vi iihal pve
particiibr direction^ that the time when tney
did aunt' %[umUi be iaite io the evcumgp. Ac-
eortling-ty he cofaei in the be^ioniDg- of the
uij*ht, at 10 t^thr r-i- * Tinoted and spurred,
and bringi) witU i iicr arch rebel, one
Helthaq^ tJtAtsL;^ ^Mora tuuet btack
atid horrid treatf<jfi. V cajne to the
fraoner*k house, the) i li' borsea loose
at the gtLte^ for the cian^er wdm ao gretil, and
Ibeir appjrefaeiisioaa of heioff taken so urgfeul
I ttwQi to conceal and m\i\ A>r thefruiefvtt,
they lb ought it coareDtcfit to let their
go where they would. M heo they
Jdodof fint fniits of liis creatures." 1 Pet. i. 3.
** Bleawd he the God and Father of our Lord
Jeaus Christ, which according to his abundant
tntrcy haih begottcti us again to a lively hope
by the rcf^urreclion of Jesu» Christ.'* Ver. 13.
** Wherefore gird up the loins of your niind>"
&c. Coloss, iii, 1,2. ** If ye tuea be risen
with Christ, seek thoeo tliio^ that are above :
aet your aOections on things above, not," hc^
0ttL ▼. a I. AimI they that are Chrtsrs have
cnictficd the flesh with the affectiou)) luid lusts/ '
^C £ph. ii. 1. '* And you hivtJi he quickne<l,
who were dead in trespasses and lioH.'^ Rev,
acx. 6* " Bleaaed and iioly it he that hath
pmrt in the first resuj rection, on 3uch the se-
<sond death hath no poner, Roui. viii. 1.
** Tliere is tliercforo now no condctnnalton/'
te. 1 Pel. I U. ^' BiU as he that bu '
you is holy, *o be ye,*' Vc, Ver, V3.
bom again, not of ■ - * ^slescetl/* wVc- rr.u.
m 3. ** But I \he I,iird hath set
„pn.t i..t- ii. .f r. ..., Uiuiself/* ^c, I
•i> more, tlic whole Bible
Jlh' itH. with \%b;it ;i r«ii(i*
vation
^Itforie >
JBcmof hit: iuid ci^uvet Silt I rin, before wc can be
mpable v€ a future anil blessed tmtnortality,
and of joheritiug the kingduru of G^kI for avar
and rrer. Anim/* *
Hi* V T r to Dr ITirhsi, dean of Wor-
cester 'p of Joviiui) II man of some
note, oi ivis ij» ^ ■ ' T, beifi^tirgtd
to iiit4krt»de In \^^ ihar, he sa-
vafidy ro|ihedt * i ^.u.iwi .r .ik IqrifiMiilic**
by bimfielf, wus convey ed .ivvny t" a cbauibera
but Mrs. Lisle causes: mt;
hefuie Mr. Hicks ind
supped with her, and ait' ru an is
' lo(l;;ed by her particular order an
The ' ' ' ' . . ..r.r..^ colonel |Vv:^'' i
^vbo liitiou, in
then. . , -^ . ...;u persons '
Mrs. Lii^Jc's Inmse, coiuejs t
her, after he had beset the ii . u
* you have rebels in your house, 1 conie to
*■ seize them, pray deliver tliem up.^ 8]je de-
nied that iihe had any in her house ; hut upou
search Hicks, and riehhorp, and, tiiat other
fellow, the messenger, were all frtuud iliere,
and she thereupon secured with them. Tlio
tnetfaod wherein we shall give oinr evidence^
will be this ; we shall first lK^g:iu w ith tbia
piece of ( ' <hat we shall prove, that
Hicks w; tn the army, ni:d iu ibo
rebellion ; - nu luvi* we shall prove the several
subsec|uent facts as bave been 0|)ened. ^Ve de^
dre Air. Pope, Mr. Fit^berbert, and Mr« ,
Taylor may be iiworn.
Lis/c, Bj V lord, as for what is said conoeniK
in^ i^ ]i, I can aasure you, I abhorred
that! > uiucba^ aoy wotnan in tW
world
i. C. /. (LonlJanN^ies.) liook you, Mrs*
Liile, because we must observe the <?oinmoa
and usual methods of trial in your case, aa
well as others, 1 mu^t interrupt you now : yon
shall be fully heard when it comes to your
tuni to make your «li ' ' ' *
say now beiorebai»<l i i
improper. You, it ntav m . um i-udjimji o* i,,*^
forms of law, therefore Twould intbiiuyou : you
are first to hear what your accn ■ ti-n !»;; you
fdiallaaik any questions of tti > that
you will, nller tlie kind's cju i ex-
amined them, as they go along-; and when
all their tertiraony is delivered, you shall be
heard to make your own defence, and have fuU
£coj»e and liberty to inlarge upon it as long' aa
you can : it is a business that oonecniH you in
point of life and death; all that you have or
can value in the world lbs at ^itake, and God
forbid that you should be hindered^ either in
' ' ■ ' V y de-
turn
cutters first to be heard ; and it iii uliiiolMtd;
requisite, ''^^» ''^^ "nualibrmi* and r
law he JDv serreil, and be ^
liif prisons , i iry ihat the law
lyto; and we hare that charity, as well
.slice, lliat it become*!, and is not bWuw all
itourts to liave for persons in your condition ;
and we are oblige*! to take care, that you suf-
fer no detriment or injury by any illc^l or h
re^bir proceedings. l*or though we sit hei
aajud^fiiover you by autborjiy from the kinff,
yet wc are accountable, not only to him, but tii'
tbe Kiuff of kincfs, Uic great Jud^ of heard
and L-arth ; and therefore are obhe:t*d» both f
our oalba> and upoa gtir consvt^iicea, Vo do you
y
n
1
3231
iJAMEStl.
Trid of the Ladu Alice Lisk,
[324
justice, anil by tl)«> grace of God wc shall do it,
you may depend upon it. And as to what you
say coucerniiig yourself, I pray God with all
my htiart you niuy be innoccut. Pray call
your witnesses.
Mr. FoUi'xfcn. Swear Mr. Pope, Mr. Fitz-
heriicrt, and Mr. Taylor. [Which was done.]
L. C. J. Who didyoubr^n with?
l\Ir. FoUcTjcn, Mr. Pope, pray will you
tell my lord niid the jary, what you know ,
coneeriiiu<^ this Hicks ? Pray tell your whole
knowlcdiife.
Mr. Pope. My lord, I had the misfortune to
be taken prisoner by Monmouth's army, GToing
about some business of my own ; and after J
had lieen taken some few days, wc happcuc<l to
be brought to Keinsham, and we were put into
■ir Thomas Bridges's stables, and kept under a
guard there. W hilst we were there, I did see
that gentleman that goes by the name of Mr.
Hicks, who is now in Salisbury gaol, and there
I saw him yesterday ; he came and asked
tor the prisoners, which were about four or
five in number, and he asked them, how they
did ? They made him little reply. Thi?n he
desired to know how we were dealt with, whe-
thtr we were kindly used or no ? I replied, no,
for we had but a piece of bread these two days.
He made me answer, that he was sorry for
that, for it was otherwise intended. And tliere
was with him another gentleman that was call-
cil the king's chaplain, that is, the duke of
Monmouth's, and atlcrwards he pretended he
would do us a kindness in speaking to the king
(as he called him) for us. He talked with us
•ome little lime, and by and by he began to
ask us, what was the reasou that wo were
there ? We told him we were taken prisoners,
upon which, saith he, this king (meaning, as I
suppose, the late duke of Monrooutli) is a good
king and a Protestant ; and a great cleal to that
purpose, with some reflecting words on the go-
vernment, and upon the person of the king :
and he told us, he wondered what wo had to
•ay for oui-selves, being Protestants, that we
did what we did in serring a Popish prince, and
Dot obeyinjr a protestant one. Phis is the sub-
stance of what I have to say upon this matter.
L, C. J. 'J'hough you were pleased to phrase
it, Sir, in the Iteginning of your testimony, a
misfortune that you were taken prisoner by
the rebels ; yet, I suppose, you could not be
without the consolation of a good conscience,
that^'ou suffered in the way of doing your duty
Pope, My lord, 1 am very well satisfied I did
Cufler in a good cause.
L. C, J. There is one piece of happiness in
it ; that by that means you are able to give
this testimony this day, and do the king this
piece of servu.*e. But pray, Sir, let me ask
you this question : are you sure the man you
saw ycstenlay at Salisbury is the same man
that you spoke with at Kemsbam, that goes
by the name of Hicks?
Po/>r. Yes. my lord ; and when I was there
Yesterday with liim, I aiked him, whether he
Mi^w mq ; and tokl him, siid I, you may well
remember you saw me at Keinsham. Saith
he, I do not remember that ever 1 saw yoor
face before. Said I, you remember sir Thomas
Bridge's stables there ? Said he, I remember I<
did see some prisoners. Said I, was not it
tliere you saw me, and had such a discourse
with me ? He seemed to deny it, but I told
him, a man of your coat should not tell un-
truths, you cannot but remember you saw roe
there. *Saith he, 1 will recollect my memory
if 1 can ; and he afterwards sent to the George
in Salisbury for me, and then he told me, he
did recollect that he saw and talked with such
a person there.
Mr. Rumsey. Sir, I would ask you thit one
question ; did } ou see him in the army about
the time of the fight ?
Pope. I think 1 saw him about a day or twt
before.
X. C. J. Had he any weapon on?
Pope. I think not, my Ibrd.
Mr. PoUcxJen. Our next witness is Mr. Fili-
beri>ert. Pray, Sir, will you give an acM»nnt
to my lord and the jury, what you know of
this Hicks?
FUsherbert. My lord, during the time that
I was a prisoner with this gentleman at Kein-
sham, the 25th of June, 1 saw this man, John •
Hicks, who held a discourse with Mr. P6pa
near an hour's time, disparagmg the govern-
ment and his majesty, and extolling the doke
of Monmouth, what a brave prince, and how
good aprotestant he was.
L, C. J. Then be was among tbem, was
he? *
Fitzhcrhcrt. Yes, my lord, he was, ajid I
saw him yesterday at &libbury.
L. C. J. Is that the same mau that you saw
in Monmouth's army ?
Fitzherbert. Yes, he owns himself to be tlie
same man.
Mr. PolUxfcn. How oflen did you see him
there besides'that time when he discoursed with
Mr. Pope?
Fitzherbert. I saw him sometimes out of the
town, but I never discoursed him.
L. C. J. Did you see him there before or
aAer that discourse?
Fitzherbert. It was after.
L. C. J. Would the prisoner ask thia wit-
ness, or the other, any questions?
ImIc. No, my lord.
Mr. Pollexfcn. Then Mr. Taylor, what lay
you to the matter?
Taylor. My lord, I saw him at the same
time that these gentlemen speak of at sir Tho-
mas Bridge's, at Keinsham.
Mr. Pollexfen. Were you a prisoner tlien^
Sir? — Tat/lor. Yes, I was.
Mr. Pollcxjeii. What place was it yoo saw
him in ?
Taylor. It was in the stables the first time
that I saw him. *
L. C. J. What discourse had you with bim ?
What did he say to you? • ,
Taylor. He said, he wondered at us, tbitwt
should take vp arms against so good a j
mud a Prol«ttaiit as tlie duke of Monmouth »
and ai^nsi tli^ PiotesUint reUgion, and hold
up wiih Piipery : Saith he, York is but a Pa-
pist I and a Qv&ki matiy such words.
L C, J. Did yoti see him afterwards ?
Tin/lor, YeSj my lord ; biit I ciionol ttll
particuliuly the tiinu and place; uji and down
the army«
X. C X Did you sec him at Salisbury ?
Taylor. Yes.
L. C. X lii that tht* same man P
Ttijfhr, Yes, it i:^.
Mr. Pollej/en* Nexti my lord, we come to
prove the message and corresponclence between
this same Uicks^ and ttic prisoner Mrs, Lisle.
Mr, Jennings. Swear ftlr. Jame3 Duune.
[Which wft& done.]
Mr, PoltiXj'in, 1 1' your lordship please to ob-
serve, the iiiiie$ will tiiil out to he very material
ill this case: ihn btijlle at King's" Ed^more
waisthe 6lh of Jidy i ihi'ee or four days alter
was tlie lakinjf of Monmouth, and my liH-d
Grey at King wood ; upon the 36lh af July,
ten or twehe days aller the taking of Mon-
mouthy was this message sent by Dunne to
Mrs. Little: so we call Dunne to' prove what
message be earned upon the 2tjUi, and what
answer was returned ; he will lell you, that
Tuesday was the time appointed for them to
come, in the ni|fht, and all the oilier eircum-
stances. But wilhal, I must aci^uaint your
lordship, that this lei low, Duone, h a very
unwilling witticiis ^ and theretore, with submiii-
sion to your lordship, we do humbly desire
your lordship would please to examine him a
little the more *<lrielly.
L. C* X You say well : Hark you, friend,
I would take notice of something to you by
the way, and you would do well to mind v%hat
I say to you. Accurding as the counsel that
areliere for the king seem to Insinuate, you
were em ploy e<l as a messenger hetweea lliese
(jersons, otie whereof has alread v been proved
a notorious rebel, and the other is the prisoner
at the bar, and your errand was to procure a
reeepliou at her houjse for him.
Dunne. My lord, 1 did oo.
X. C, X Very well. Now mark what 1 say
to you, friend : I would not by any means in
llie world endeavour to fright you into any
thing, or anyways tempt you to tt;ll an umrntli,
but provTike you to tell the truth, and do^
thmg but tlie trntb, that is the business we
come about here. Know, friend, ihti-e Is no
religion that any man can preteml to, can give
a countenance {o lyinc;, or can dispiuse with
telling the truth : Thou hast a [>recious im-
mortal soul, arul there is nothing' in the world
equal to it in vutue : There i^ uo relation to
thy mistress, if site be so ; no relation to thy
friend ; nay, lo thy father or thy child ; nay,
not all tho temporal relations in the world can
he eqmd in thy jir^'Cioiis immortal soul. Con-
sider thai the ill eat God of Heaven and Eurth,
bifore whose tnbutial thou, and we, ami all
perboiis are to stand at the lubi dav, will call
Ihee to an accoimi for the re.^ tiuih^
and take veogeance of thee for every falshood
thou telleit. 1 charge thee^ therefore, us thou
wik answer it to the i;t^ai Goi]^ ilie judge of
all the earth, that thou do not dare to waver
one tittle iVom the truth, upon any account or
pretence whatsoever : For thougli it were to
save thy Ufe, yet the value of thy precious and
immortal soul is uiuch greater, than that thou
sbould^st forfL-it it for the saving of auy the mof t
precious outwan! blessing thou dost enjoy ; for
that Cjml of Heaven may jnstt}' ^tiike thee into
eternal flames, and make thee drop into tlie
bottomless K:ke of fire and brimstone, if thou
ofTer lo deviate the least from the truth, and
nothing hut the truth. According to the com-
mand of that oalh that thou hast taken, Itll u«
wIkj enijjloyed you, when you were employ cd|,
and where? Who cause*! you to go on tliu
message, and what the messapfe was ? For j
tell thee God is not to he mocked, an*l thou
ean'st not deceive him though thou jnay*st i
But 1 ussure you, if i catch you prev^iricattn
in auy tlie least tittle (and perhaps 1 kuojl
more than you think L do -, nu, none of yoiir
saints ctm save your soul, nur shall they save
yonr body neither) I will he sure to punish
every varialion from the truUi that you ar«9
guilty of. Now come and tell us, how yoa
came to be etTiploycd upon such a message,
what your errand was, ami what w as the issu«
and result of it ?
Dttmit. My lord, there came a man to ray
house, and desired tne to go of a message
iny lady Lisie's.
L. tl J. Prithee tell me when it was P aD4']
what hour of the day ?
Dunne. What, when the mao came to tn^]
house P
JmC.J. Yes.
Dunne. That I will, my lord.
X. C. X Be sure you do, and do not speak
one word but what is true, and let the truili
come out of GotJ*s name,
Dunne. It was Friday night.
L, C. J, What day ot the month was It ?
Dunne, Truly, my lord, I cauuot exactly
tell that.
X. C. X, Was it after the fight at Westoo, <
befoi^ ?
Dunne, Tt was aAer the battle, iny lord.
X. C. X How many days after was it ?
Dunne, I canaot exactly tell.
X. C. X Has il Uie Friday seven -nig
ajler the light 'f— Dunne. No, it was not»
X. C. X What was desired of thee at thi
time 'f
Dunne, He desired me to go of a messag
to ray lady Lisle* s,
L. C* J. Dost thou kaow what mab it wa
that came to thee, and desired thee to go on
this message ?
Dtmne. My lord, 1 can tell what maimer of
man lie was.
X» C. X Give me a description of tlie ttiao,
Dunne, He was a shott bijick man,
X. €. X You say he was a short man.
J)unn€, Ye% he was 60, my lord.
Sir]
\ ikms iL
Trid^ffhe LaHy Mke Lidt,
.fftS
L. C. X WBSlieiis«iiiHliy,oraitid4yown-
plectioned man ?
Bunne. He tvas n<ft ruddy bat swarthy.
X. C. /. And what did he say to thee P
Dunne. He desired me to gfo to my lady
Lisle's for Kim, for one Mr. Hicks ; and I went
accordinsfly.
L. C. J. What were you tb «ay when you
came there ?
Mr. PoUerfen. What reward were you to
have ?
Dunne. That man that came to me, pro-
mised mc that I should be well rewarded for
my pains.
L. C. J. Where do you live? (by the way.)
Dunne, In Warminster parish.
L. C. jr. How far is it ii-om my lady Lisle^s ?
Dunne, Six and twenty miles, or there-
abouts.
L, C, J, You did ffo, you say, when P
Dunne. Upon the Saturday.
L. C. J. Well, we are gci thus far ; vou
trent to my lady Listens upon the tSaturday,'
and from one *Mr. Hicks: what was your
errand?
Dunne. To know of niy lady Lisle, whether
she -would entertain Mr. Hicks.
L. C. J. Well, now go on.
Dunne, W^hen I came to my lady Lidc's
house, I went to the bailHf that belonged to my
lady Lisle.
L C, J. Ay, who was that bailifl? lell us his
-tiame ? I love to know men's names.
Dunne. His name is Carpenter, 1 think.
L, C. J, Well, and what did you say to him ?
Dunne. I asked him, whether my lady
would entertain one Hicks, or no ? he told me,
lie would have nothings to do with it, but sent
me to my lady, and to my lady I wenf^ and
when I came, I askc<l my lady, whether she
would entertain one Mr. Hicks, or no? she
said, she did not know but she mij^it.
X. C. J. Well, what then ?
Dunne, My lord, I will tell yon.
X. C. J. Ay, prithee take time to recollect
thyself; but be sure thou speak nothing but
the truth. What said my lady to thee?
Dunne. My lady said, they might come
to her house : and* upon those terms I went
away home ag^in, and rcturnrd that answer to
the messenger that came to me. I «ame home
ou tile Sunday night, and that message I de-
livered unto him, and told him, that upon
Tuesday night they migiit come to my lady's.
X. C. J. You told him, you say, they might
conic on Tuesday ?
Dunne. Yes, my lord, I did.
X. C. J. Therefore I wotild fain know from
you, how you came to tell him, they might
come upon Tuesday ? fi)r you said just now,
my lady's answer was, that she did not know
hut she might entertain him. Had you any
such direction from Carpenter, or any one else,
to tell him, that they might come on Tnesday ?
Dunne, I had such directions from my laJy.
X. C. J. Very well; then let uskrtow wliat
irer»«ihe ttariioubr dik«etioiis-dhe gare? Tell
as, what further ^imftidns yoa Ml Han htt ?
Dunne, I w4n, my lori, ^uiMja^, aliui 1
h»fe recoNecteA mj^self.
X. C. J. Ay, piTOiee OMipoae wyacliy rcool-
lect thyself. IVhtu tie padnd ftr a |pood
while.j
L.C,J. Come now, tell «n,4i4fllie<giv«jria
any directions what time of the day they mght
come thither? remember yoondf will, and
tell us what she said to you P
Dunne. Mv kitd^ I will, aiwear aslcaa,
speak the trutn.
X. C. J. Ay, in God's iiaiiw,lat m hnt tha
truth, whatsoever comes on it P
Dunne. I will, my lord.
X. C. J, Come then, what thna diA ihe gifa
directions that they should come P
Dunne. On Tuesday in the 'eveiiiu|f.
X. C, J. Upon your oath, did aheaay Toil-
day in the evening?
Dunne, Yes, my lord, she did.
X. C. J. What time in the evenioff, eartrw
Ute?
Dunne. She did not gfv«any-dii«ctioiiaal
all about that, but only in the evening.
X. C. J. What eke did sheaay to 71m, t^
us all the discourse that passed betweon yinf
Dunne. Shesaid nothmg-elsetfiatlraiMBl-
ber, niy lord.
X. C. J. Prithee, how did riie Mr ■!» wadi
receive him? tell us what words rae-nsed, "ftr
'thou must nee«ls imagine, we da suppose ihtn
must needs be some longer diseoorse betfivate
-you, than what you talk of.
Dunne. All that she said ¥ras,alie wouWaa-
tertain him.
X. C. J. Him? Who?— Dttnaf. Mr. IfidEi.
X. C. X Just now you talked of them,' and
they : did you mentron nobody to 'her'battt:.
Hicks ?
Dunne, My lord, 1 was sent to see whethtt
she would receive "Mr. Htcks.
X. C. J. Prithee, friend, mind what 'ttsa
hast said, and recollect thyself, I will repeat it
to thee, because thou shak see that 1 1
it all very well. It seems that a roan, a '
black man, came to your house in ^
parish to get you to go for a messace'toMs.
Lisle's, to know whetner slie would edtaifui
one Hicks ; and that you went upon *the *Bli-
turday, and first you met with CarpentM',*aad
aske<r him that question, whether his lady
would entertain one Mr. Hicks? and he'tdn
you he would have nothing to do with it ; 'and
theren|)on you went to Mrs. Lisle, andaakad
her the Question, and she told you that yen
should tell the man that they should came ttis
Tuesday following, and come in the i
and she would entertain him : Is not this^
you have said ?'^Dunne. Yes, my lord, itk.
X. C. J. Well then, now let us knaw^ldnt
other discourse you had with her ?
Dunne. My lord, I do not remeonibcr any
thing more.
Mr. PoUeifen, Pray, Mr. Donne, tikltte^kk
you any qbestioos, whether you kn^ir 1|^«
Hicksaraop
\
Bfr. Orit^. IM ^ Mievc fbat yim Imew
Mr, Hickn ? — Ditiifte. 1 cnnofit trft^Tiiy lord.
Mr. Cofi/an. Do ycrn beHevt! that tttelcoefV
him before?
J>imfie. I canmot Idl truly.
. C. f. Why, doat thou think she wonlil
ilertAin Any <me tbiit ihe hafJ no knowl«^f|gTe of
b-«>y tmon fhy tnemage? Mr. Dttfrn*^ Mr»
linne ! Iiav« a care, it may be mojti is kuotvo
ihkM matter than yon thtok fbr.
^i>i«fifi£* My loi'tf, 1 lell you tiie truth.
i L. C. X Ay, bf sure you do, do not let me
ke yoo prevWieafhiff !
i>i<»7te. My lord, I spaiSc nathhig Imt the
tnttii.
L, C, J. Well, I only bid you hare a cave^
^Inith fie%CT wa^ts a aobterfti^e, it ahi-ays loves
to ■ ■ r Mfiked, it nctds no eDamcl, &or tiny
c ! at Wing- ;%nd sntvellinj^-, and cant*
•ib^\ *i.i^i ilicksing^, aluays appear in niasque-
ltd«. Come, go on 'With your evidence.
lhmm\ Wylord, I aay i went back again
and returned my answer to the same man
t.hat broujrtit the message to me.
L. C. J I*ray let \l\q ask you one question ;
-wene y<iu gfot to ^-our house' heibre you iuuud
[), or i¥ia*he waitmg- there for ynu ?
^IlHiiiJK* Oe oame totiiy bouse after I came
It, C* J* It was the same tuan^ you say ?
^ktnne. Yes, it wo5.
Z.. C. J. Him I lie no cotnpany with htm nei-
ther ti me ? — Dm n ne, N o ,
L, C. X Well, and wlrat answer did you re-
^luru him ?
A Dunne. I tofd hlro, my lady «atd she would
^mirriam Mr. Hicks ; he asked when he might
come up ; f told him «iJon Tuesday, and upon
Toesikiy ihey ctime to my home.
L. L\ J. What time did they come to your
hon^ ?
Dunne* About seren of the clock in the
monurig.
L. C /. What day of the mouth was it ?
•Duniie. Truly, my lord, I cannot rcaihly tell
what dtiy of the uioiith it was.
L. C. X Wan it one or iwi^that came to thy
ilttC?
*•. My lord, there were three in all,
L. C X W hij u ere those three, prithee ?
Dujfnc, My lon1» therr was th*^ little black
nxi^n^ that brought the messugCr aud two other
X. C* X Prithee describe what two other
pie Ihete weref
Uunnr. IhiewAtft fuUiat black msn, and
oilier irtiH a thin btai-k man.
L. C. J. Who was that thin bladf man ?
Dunne, Mv lord,! did not know him.
L.C.J* 6id jou uot iimry which was
Ick* ?
Dunne, My bitl, t never knew wny of their
namoi.
L. C X IJow long did they slay at your
btitui« t^Dunnf, About thrtc hotns*
hL
try* 4
X. C X fVhfn M yiHi f^ «ii«y
thence ?
Dtfnne. About <Aot en «fib9 4r1oek.
X, C. X Which way did yo« ^o ibeQ f
Dninne, We went tbr^it^h D^etiel, aadF
fWm Dciref^ltoCliilmark, atHl if om •CbiliiMrk
to Button J and fpom Million to the Pliiiii, and
ftien one liurter mot me ; I knew fhe way n^
further, aud he was to shew tiie<be w«y mm
IbeiTce.
L. C. X IVivhee bold, liefore Ihoa |*OQit
any further, I desire to be «otidli«d olioot •
question or two : dost tho« aay thou didst not
know the way ?
Define. No, my lord^ ««fler| <^me to the
Plain,
X. C. X ifow didfit thou Bndtbe way wlkcti
thou weutett'On thy messa^ drat ?
Dumic. My lord, alter 1 came to ^itsbuty*
Plain, I met with one Barter, uiul l*e thewi '
me the way,
i, C X* Whei e-ia that barter ?
Mr- Poliex/en. My lord, we l»uve him liere;
we shall examine Aim by and by, there he
standji.
X. C. X 'Sure Ihiit wsa not the Uitle tn^n
Iho u sp^jke.^ of, [Being a ler y lusty ^an.^
Dunne, No, my lorH,
X. C. X l^rithee let tne ^mlersfand Hlie|^H
then, if I can. Thou didst f^ay at %at theff^H^
was only a little man with a bWk beard, tUa^^
was eouoeroed* with tl»oc ilhout'tiiai nieasa^ ;
now tliou talkest of sonte guide that thou
hadst, prithee who did guide tliee, let usicnow?
Dunne. My lord, I say 1 went so far as Fo-
▼ant, and sm to Chalk, but when I came upoa
the Plain, I did not know my wny to my rady
Xisile's house at Bloyle's (.NHi'rt; 4 ttiakea
twenty people in the street which was my way*
hot nobody wauld tell me; at liiirt I apoke to
one John Barter to gt) with me to my Itcdy
Li*le*s, and he aud 1 did agree to go together,
and he ifaewed me the way and carried me to
the house.
X. C X Thou shooldat hare told us this be«
fore, mau, that we might Ira^e uudenstood it*
Where did you lie upon Ibe €^torday ni^ht ?
Duftm. At Forant
X. C. X I thought y^oo rbati^said, you bad
couic toTWrs. Lisle'fl on Hamrday ?
Dunne. Yes, my lord, 1 did «0| and came
back to Fovaot that iiigbt,
X. C* X And where did you lie on 'Sunday
night P
Dunne^ I by ^t my owniiouae-on'Siiddiay
niglrt,
X, C. X And Barter came along with you
when you came on Tueaday ?
Dunme, Yes, my ii»rd.
X, C X And did you gotbcaamfr-way upon
tlieTuesihiy that ^"ou went irpon ilm^tttrday P
Dunne. Do ^ou mfnu, my lord, the aafiie
way I came at'tirstf
L C. X Ar.
Dmtne. 'No, iny lortf, we came to Sutton,
not to Fovniit.
X. C. X Why did not you yi tlw wmm way
J
aSI] 1 JAMES 11.
upon tbe Tuesday that you went upon the
Saturday?
Dunne. Beoause I had appointed to meet
him at such a place.
£. C. /. Come, prithee answer me freely
and according to truth : Who did desire thee,
or order thee to go another way than that thou
went'st at first P How came it to pass ? Let us
know the truth P
Dunne. My lord, I did count that to be the
nearer way, and therefore I went that way.
L, C. J. That cannot be the reason, for thou
would'st have gone the nearest way at first, I
believe ; come, tell us truly ? .
Dunne, My lord, I know no other reason.
L. C. J. Come, tell us what towns and vil-
lages you did go through then upon Saturday ?
Dunne. My lord, 1 went through several,
Chilmark and Fovant.
X. C. J. And what villages did you go
through upon the Tuesday?
Dunne* I went through most of the same
towns.
L. C. J. What, and at noon-day too ?
Dunne. Yes.
L. C. X And how chanced when you went
that way, that you appointed Ikirter to meet
yon in another place at Fovant P
Dunne, Because I did not know the way
afterwards.
X. C. X Then let me ask you another ques-
tion : Did you go the same way from Fovant
to my lady Lisle's as you went before P
Dunne. No, we did not.
X. C. X How came that to pass P
Dunne. I would have went the same way,
but they would not.
X. C. J. Which way did you go then P
Dunne. We went through Chalk, and so
through Rocksbornc, and from Rocksbome to
Fonling-bridge, and so to Moyle^s court.
X. C. J. How far is this about now P
Dunne. Truly, my lord, I. cannot readily
tell.
X. C. X How many miles is it from Fovant
to my lady Lisle's P
Dunne. My lord, it is about 14 or 15.
X. C.J. IIow many miles ay as it the way
that you went upon the Tuesday ?
Dunne. It might be twenty, my lord, for
aught I know.
X. C. J. What was the reason that Barter
wentthat way P
Dunne. Truly, my lord, I cannot tell.
X. C. J. Pray let me ask you another ques-
tion then ; Wliat dii^course had you with
Barter ? Or what bargain did you itiakc witli
him for shewing you the way ? for you would
not ask him to go with you without promising
him some rewara.
Dunne. My lord, I asked him to shew me
the way to my kidy Lislc*s house, and told him
I was going for onu Hicks ; and so he took his
horse ami went with me.
X. C. X What reward did yon promise him ?
Dunne. Half-a-crowU| my lord| and half-a-
crowo I gave him.
Trial of the Lady Alice Lisle,
[sse
X. C. X WeU, that was the finttime; and
what did yon promise him the second time.
Dunne. The second time one of tbe two
men gave him five shillings.
X. C. J. What man was it ?
Dunne. It was the black man.
X. C. X What was hb name P It was not
the little black man that came first to desire
you to go on the message, was it P >
Dunne. No, my lord, it was not he that
spoke to me first.
X. C. X Did not that little man that apoke
to you first promise you a reward for yoor
pains P
Dunne. No, my lord, that man never pre*
mised me any thing.
X. C. X Did he co along with yon ?
Dunne. No, my lord, he did not.
X. C. X Who were the two men that wait
with you P
Dunne. Hicks and Nelthorp.
X. C. X Which of tJiem two was it that
gave Barter five shillings P
Dunne, It was Nelthorp that gave him fire
shilliojQfs.
X. C. X How do you know bis name wis
Nelthorp P
Dunne. At my lady Lisle's, af^er be vis
taken, 1 knew his name^to be Nelthorp.
X. C, J. What name did he go by before P
Dunne, Were J to die presently, my lord, I
cannot tell it
L.C.J. Well, you went so much about :
What time did you get to my lady liale's npeo
the Tuesday?
Dunne. About nine or ten of the dock it
night, my lord.
X. C. X Let us consider a little; yon say
you went from your house about eleven o*chick :
What time did you get to Fovant?
Dunne. About two or tliree of the etod^
my lord.
X. C. X Where did you stay by the way?
Dunne. No where, my lord.
X. C. X Did you ride on still P
• Dunne. Yes, my k)rd.
X. C. X Was It before nine, or after
thai you came to my lady Lisle's P
Dunne. 1 believe it was rather afier
my lord.
X. C X Who came first to my lady Liale^
prithee tell us frankly P
Dunne. My lord, we came all three toge-
ther to the gate.
X. C. X Who knocked at the gate, you or
Barter, or who else P
Dunne. Barter, my lord, was dischancfd
before we came near ibc house, about eight
miles from it.
X. C. X Saycsttiiou so? Ifow came
then to know the way without him P
Dunne. My lord, I will tell you ; they kMt
their way, and they sent me down to Maitoiiv
and there I went to a man, my lord, and told
him one Hicks desired to speak with him. .
X. C. X Thou sayest well, now mut' I
know that man's name. .-
y^
Jir FTigh Trtasort*
Jhtnnc* Tlie man's aawe that I went to at
Blarioh^ my torti ?
L.C.J' ^cat, «uil look to it, you ttll nic
tight, i'o\ it iivft^ be I know llie ttiau already,
.md cttu tell at wliat eud of tbe to\va ihti mau
llirca* loo.
! ilaitae. My lai'd, I cauuot tell, bis cante
Ijreseully-
{ L. C X O I pniy noi*% do not say so, you
kixiujit tdl IIS, iiiibcil you inufit tliinic ot bis
bMue (L little.
I i>Kinr, My lordf if I can ttiiud it 1 wilt.
LjL C. X iVithee do.
E^piiniK, His II a til f» truly ^ my lord, I cannot
PPbly t«U lor tUe pic^nr.
' L» L'. J, Fritheo recollect tliysdt ; itidtjed
j Ibou caiJiit tell us it' thou wilt.
Dunne, My lord, 1 can go to the boose
again if I ^verc at liberty.
I J* C\ J. 1 btliere it, and so could I ; but
{>rcally oetther you nor 1 can be spared at pi*e>
aeut, theretbre'priibec do lu the kiudiie^a now
to tdl us his nanic.
I>u/i«f, Truly » my lord, 1 cauDot miod his
I paiue at presenU
jL. C. J. Alack-a-day, we must nteda have
it I Come, refresh your memory a little.
X>un ne. My lord, 1 tbiuk bis name wai» Fane.
L, C. X Tdou say^ ri^bty bis name was
' Fane truly, tboa seest 1 know someihipg* of
I the matter r HelL what didst tbou say to biin f
Dunne, i lold him 1 came frgm one dir.
1 jlieks.
£. C /. And what didsl tbou desire of him ?
Duftnt, I told hitn tliat one Mr. Hicks de-
•tied to speak with biai ; and wbeu be came
I **ut to Mr. Hrckf, Mr, Hicks did desire him to
■hew bini the w^y to 3Irs. Lislc's.
Z,, t'. J. Now'tell us what kind of man that
pas» tliat desired iXna of Mr. Fane ?
Dunne. My lord, it was tlie full fat black man.
L, C. J* NtiW we have jjot him out, now we
I kli'>w which was Hicks : Now go on.
I Dunne, 31 y lord, ibis man went and rid
I thtiis with them as t'str as the new house that
I is budl thcrp, within ti mile of Ibikt bouse Fane
ii wi'fjt alot}'^ ^vith us; and ai\cTwai<ls» whether
liif i'liorp, or wlio knrw the way, I
i cat! lUo my lady Lisle's we went.
X. L, J. WUq direct^ you the way when
Fane k-ft you ?
Dunne. My lord, t cannot tell ; For my part
I did not know the way.
V.J, Who Went with you ?
^itnue. Noue but Hicks and NeUliorp,
II..,. ^.^^ j'pyjy jj^y lady *s house W»s
til I in*- left you ?
X - .1, I i*iU)00t directly telL
C. J. llivn Hjcks knew the way, it
, ffi»iR fbruco?
Dunnti. So be im^ht, my lord, for aiigUt I
]liiow,for 1 did nut
L. C. J. Thou ly ktilT; but now
Ifc afi*com«* ibo« 1 4n tell iiie what
tt' '» you hud ;it i»iy kdy Liiiles, nnd
you hu sur^ to tell tne truth «
1 ^QQv? it to a titUa, 1 can apsareyou that*
A. D. lOTi [SSI
te. l1»fy went in liefbre we, ray k)rd.
L, C. J. VVho dentin before you P
Dunne, Hick^ and Nclthorp.
X. C. X Out the door wns shut i^hen you
came, was it not ?
Dtmnv. My lonl, I cannot icll truly,
L, C J. Tnen tell me what entertainment
you had there ?
Dunne, For my own part my lord, 1 carried
a bit of cake and cheese from my own bouse^
and that i cat,
L. C. J. What became of your companions *
liicks, and Nehhorp, 1 pniy you ?
Dunne. I never saw them again till after
thev were taken.
L. C. X How is that, prithee recollect thy-
self?
Dunne* Sore, my lord, I did Dot see then
till then.
J„ C. J, Who came to the door to you f
Dunne. A young girl, my lord, 1 knaw not
who nor what she was«
X. C* X Did they go directly into tiit
house ?
Dunne. It was dark, my lord| I did oot sea
what they did.
X. C. X Was there never a candle there?
Dunne. No, my lord,
X. C. X It was dark, very dark, was it not P
DuhjiM. Yes, tny lord, it was so.
X. C. X Was iny lady stirring then ? '
Dunne, I did'not see her.
X. C. X And this is as iducIl as you know
of the business?
Dunne. Yes, my lord, this is all that I re*
member.
X. C. X Well ; and what badst thou fhr all
thy pains?
^Dunne. Nothing but a month's imprison-^
ment, my lord,
X. C. X Thou sec meat to be a man of «
great deal of kindness and gOi>d''nattir<> ; for» by
fliis ^t^iry, tb**rr whs a man that tlton never
ssawest before (Ibr I would tain hB\c (lU pcopltt
obsene what leather some men*s consciences
are made of) snd because lie only had a black
beard, and < nra^ to thy house, that black beard
of his should per^^uade thee to go 20 mites, and
give a man half a crown out of thy pocket to
iihew thee tliy way« and all to carry a messaga
tVom a msTi thou nevvr knowcii in ih^y lilb, to a
woman whom thou never rawest in thy life
neidier; that thousbouldL'Si lie out by the way
two nights, and upon the ^Sunday '^vl Iwime,
and there meet with ibis Mantc black bearded
little gentleman, and appoint these people to
come to thy bouse upon the Tucsdny ; and
when tl»ey came, entertain them three or four
hours at Ihy own house, and go back a^;nin ^
many mileii with lbt*iu, and bav« no enttitain-
uicnt but a pi«x*e of c:ik*^ and cbcc^c that thou |
brouftbtLSt thyself Iroin home, an<ibave no fe«
ward, nor so much ^n know any of the person!
thou did^t ail this for, ih very utranjjp.
Dvnntf. My lord, the tunn tt* .^d^s;^
siri"' me to go on this rn<»sa}:e, * I icks
sbotdd reward m*^^ aud pay me lor u>y p«tns«
1
]
1 JAM£S II.
Trial tfike lAtdy AKee Lide^
CS»
the
X. €. J. Bat why woaMeBt Ikn
word of a man thou didit net ksow ?
Dunne, I was forced to take hit word at that
tMie, mylqrd.
L. C. J. There was no ntcettify for that
neither; no body could foree thee to do it.
ilU«k-a-day! Tbou seemast to ba a maD of
some consideration : I mig^btily wonder thoo
shooldest be so kind to people thou didst not
know, without any prospect of reeoropence
whatsoever.
Dunne, All the reason that indoced 4ne to it
was, they said they were men in debt, and de-
sired to be concealed for a while.
L. C. J. Dost thou believe that any one here
beliercsthee f Prithee what trade art thou ?
Dunne, My lord, I am a baker by trade.
X. C. /. And wilt thou bakethy bread at such
easy rates? Upon my word then, thou art
▼ery kind : Pritnee tsllme, I believe thou dost
use to bake on Sqndays, dost thou not?
Dunne, No, my lord, I do not.
X. C. J. Alack-a-day ! thou art precise in
that ; but thou canst travel on Sundays to lead
i«]pieB into lurking- holes : It seemetli thon hast
a particular kindness for a black beard, that is
all thy reason for undertaking all this trouble.
Thou hast told me all the truth, hast thou ?
Dunn^ 1 have, my lord.
X. C. J. But I assure thee, thy bread is very
light weight, it will scarce pass the balance
here.
Dunne, I tell the truth, and nothing but
the truth.
X. C. /. No doubt of that ; hot prithee tell
me, whose horse didst thou ride when thou
wentest first f
Dunne. The man's horse that came to mc to
desire me to go on the message.
X. C. J. How came lie to trust thee with his
korsc ? — Dunne. The Lord knows, my lord.
X. C. J. Thou saTest right, the Lord only
knows, fur by the litUe I know of thee, I woum
not trust thee with two- pence : whose horse
didst thou 1 ifle the second time ?
Dunnt, My own, my lopd.
X. C. J, And where didst thou put thy
horse when thou earnest to my lady Lislc's?
Dunne. In the stabk), my ford.
X. C. J. Where did they put their horses ?
Dunne, Tliey left them without the gate, I
diink, my lord ; I did not see tlitin take Uiem
in.
X. C. J, No, thou saidst it was so dark thou
oouldest not see any thing: Pray were yuu
with the two men when they did afighl ?
Dunne, We did all three come together.
X. C. J. What did 3rou give Fane lor his
pains in shewing you the way?
Dunne, He had nothing that I know of.
X. C J, Well, you are the best-uat;ircd and
kindest- hearted people that ever 1 knew:
Whereabouts do you live ?
Dunne. At Warminster, near my lord
Wey mouth's.
Mr. PoUtrftn, Piray, Mr. Dmine, Will you
Wm not there
searching at that time op and down the coun-
try for rebels that were fled from the battle f
Dunne, I dki hear there was, sOBie were
taken.
Mr. Follfifen. But did yea hear there wae
searching at that time for other of the rebels?
Dunne, I did not hear of any near ese, hut
there were in other places.
X. C. J. Then it bemg such a saspiciens
time, when that little man with the black bear4
came to thee, didst thou not. ask what that
Hicks was ? — Dunne, No, my hird, I did not.
X. C. J. And when Mr. Hkks and the other
man that is called by the name of Mr. Nehherp
came to thy house, didst not thou ask thar
names ? — Dunne. No, my lord.
X. C. J. Nor didst not tliou ask upon what
oceasron they were to be conducted to my hdy
Lisle's ?
Dunne. No, milord: Hk;ks, thefotman,
told me they were in debt.
X. C. J. Did not the man that first <
you,. and employ you to go on this
did not he know flicks ?
Dunne. I cannot tell, my lord.
X. C. J, Bid not he tell you, Hicks <
yon to ^, and that he was in debt, and there-
fore desired to be conceakd ?
Dunne. Yes, my lord, he did.
X. C. J. How came you to be so J
then, as to tell me such a lye ?
Dunne. I beg your pardon, my lord.
X. C. J, You beg my pardon ! Tliat is net
because you told mc a lye, bnt because I have
found you in a lye. Come, Sirrah, tell me the
truth ; what did Hicks and Nelthorp with their
horses, when they came to my lady liele's?
Dunne. My lord, I cannot UA\,
L. C, J. Vfhy yuu impudent rased, did not
you tell mcjust now that they left them at the
door?
Dunne. My lord, I said I believed they
minrbt, but cannot directly tell what they dii
with them ; I know not but one or other might
have them awny, bul I did not see it.
Mr. FoUexfcn. Prithee, friend, tell the troth ;
what did become of the horses ?
Dunne. I cannot tell truly, my lord; if Mf
body had them away, I did not see them.
X. C.J. W hire (lidst thou lie that night r
Dunne. In one of the chambers.
X. C. J. ^Vlio shewed thee the way to thy
lod«;^ii)^s ? — Dunne. The girl.
X. C. J. >Vho else didst thou see in the
house ? — Dvn.'ie. I saw no body at all.
X. C. J. Then who shewed thee the way t»
tilt' stable, u:)d hel|>ed thee with horse-meatf* *
Dunne. No body he1|)cd me to horse-meat.
X. C. J. Why, tby horse did not feed on thy
cake and cheese, did he ? •
Dunne, There was hay intherack, my lord.
L, C, J, Was the stable -door khdud ir
openP
Dunne. The stable door was latched, aadi
plucke<l up tlie latch.
L.C.J. Howcameyootokneirthewayl^
the stiUe then !> ^ •
Jbr High Tfwsdn.
Duinu, Baomim I hud hma lHei« befbrt,
Dy lorJ.
L, C. J. Thou htiift ticcif to km>w it ray
for it seemH tHou wctttett witboot n cimi-
Be or anv ihiu^ in the worlil, mid iml in thy
Ofie* Didst liioti see lliat man C<ir|)eiiler llic
uliff that thou ifiokr^ft off
Dunne* Mr, Ctfpenler g^ve my horse hoy*
JL. C J, Wfts there any liglit in Uie stable •*
Dunnr. Not when I put in inv horst'tirKt.
X. C J. Who brotif^ht the Uglit tbithtr ?
Dunne. Goo<Jii»an Oar(»tiilci'.
X* C\ X Did not he ^ive tby horse hay?
Dunne. Ycji, he did.
X. C. X Aod did he not g^ive him oats too ?
Ditfini'. No, my ]«ml» he did not.
X. C X I lid not he conduct you into the
tuse? — Dunne. Who, in y lord r
X. C. J, That same Goodman Carpenter.
• Dmmne. No, tny JonI,
Z. C, J. Did you see any body els« but that
|iij you g|»eak of?
Dunne, My lord» I dtd «ee the girl there,
X, C. X But, you blockbeurl, I ask you
Vhcther you did see any IkhIv else ?
Dunne. I do not know hut I inight see
Joodman Carpenter.
X. C. /, Why thou saidst he brought thee
bt, and g^ve thy horae hay ; but I see thou
L set upon uolhing but prerarieation : 8irrab,
III me plainly did you see nobody else ?
Dunne. No, my lord.
- X. C, X Not any body ?
Dunne, No, my lord^ not any one.
X, C X Did you not drink in the house ?
Dunne. No» my lord, not a drop.
X, C. X Did not you call tor drink ?
Dunne. No, my 'lord, I did not, 1 had no-
hmg but my coke and cheese that 1 broug'ht
Bither rnvbeU*
X. C. X W ho went up to the chamber vnth
ou f — Dunne. The girl, my lord*
L, C J, And DO liody else ?
Dunne. No, mf lord.
X. C. X Was the bed maile ?
Dunne. Yes, my lord^ it was.
X. C* J. You eat nothings in the hoiiS€ you
piy?
Dunm, Nnihtiig but my own cake and
, my h>jfd-
X. C. J. But you did not drink in die house
I all ? — Dunne. No, my lord, i did not,
X* C J. Did you drink at Martoo, where
did call iHMMi Fnrie?
i>ii/iri<;. ': but not afterwards.
X* C. X i ' e any lM«ly there the next
llomiDi^ before they were taken ?
Dunm. No, my lord ; but alW tiie houiM*
i beset, t saw my lady and Mr. Hicks, and 1
ik I tmw Goodman Carpenter*
X. C X They and you wtre taken there to-
Kher, wei** not you r — Dunne. Yes.
Z. C X Did you se« Carpenlei^s wif^, U]>on
lijrofttli, that flight f
nne. My brd, I did not,
tC X Nor no woman kind brides the
I sp«ttk oH^Dnnne^ N0| itay i^td.
VOL. XX
X. C. J. Nor no inan besitles Carpenter ?
Dunne. No, my lord.
X. C. X You are sure of this ?
Dunne, I aui au, wy lord.
X. C X You are sure you did not drink
there ^ — Dunne. I am, my foni.
L. C. J. And you sAy he broujfht the light
iulo the ttable, nurl gave your horse bay ?
Dunnt. He did, my lord.
X, C X Now prithee tell me truly* wher*
came Carpenter nnlo you ? I ruu»l tnon^ the
truth of that \ remember that J f^are you fkir
warning, do not tell me a lie, (or I will be sure
to treasm'e up every lie that thou teller me,
nn\\ thou may'st be certain it wilt not be fbr'
thy advantage : I wOukI not terrify tlice to
make thee aay any thing but the truth \ but
assure thyself I never met with a I) tog-, sncak»
ing, cantiOiJ' fellow, hut I always freusured up
vengeance Ibr him : and therelore look to it,
that thou dost not preraricate with me, for to
be sure thou wilt come to the worst of' it in
the end.
Dunne. My lord, I will tell the truth as near
as I can.
X. C. X Then tell me where Carpenter met
tbee.
Dunne. In the court, my lord.
X. C, J, Before you came to the gate, or
after,
XTttane^ It was afYer we came to the g^tCi
in the court.
X. C. J. Then tell mo, and I charge you
tell me true %vlio was with you wbea CJar-
penter mc t you ?
Dunne, Hioks and NeUborp*
X, C, J. Was there any body else besides
them two ill the court ?
Dunne. There was nolnnly hat Hicks and
Nelihorp, and I ami Mr. Carpenter.
X. C, X You are sure of that P
Dunne. Y««, mylord.
X. C. J* Consider of it, pre yott sure there
was no body ehe ?
Dunne. Truly, my lord» I did not mind that
there was any body elue,
X. C. X Kecollect youraelf, and consider
^•^11 of iL
Dunne, Truly, my lord, 1 do not know of
any Wly else
1. C. X Now upon your oath tell me truly,
who it was that opened the stublc-door, wns if
C arisen ter or you ?
Dunne, It V as Carpenter, my lord.
L.C.J. Why thou vile wretch, didst nol
thou tell me jtfKt" now, that ihou pluckedst up
the latch ? float thou lake the Gcid of heaven
not tr> be a God ot^ truth, and that he is not s
witness of ull thou siiyest ? Dost ibou tliink
because thou prcvarieiitest with the court here,
thrKi canmi do ao with God above " ■ ,v«
thy thoughts ? And it is infinite -. t,
for iho!re fnlstiondH of thine, he do* v ii-it im-
mediately hlrike thee into hdl ! Jeius God ?
there is uq sort of r -^ ^; - --r humau an*
cicty to lie kept w -^ theic ort
who ha*e uo Other j c^.w- ..^, ^^ j m prit«Dte>
339]
1 JAMES II.
Trial of the Laiy Alice Litle,
[5ia
and no way to uphold themBelves but by coan-
tenancing lyings and villainy ! Did uot you tell
nie that you opcue<l the latch yourself, and that
you saw no body else but a ^irl ? How durst
you offer to tell such horrid lies in the pre-
tence of Cod and of a court of justice ? An-
swer me one question more : Did he pull down
the hay, or you ?
Dunne, I did not pull doHH any hay at all.
L. C. J. Was there any liay pulled down
belbrethe candle was brought ?
Dunne. No, there was not.
L. C. J. Who brought the candle f
Dunne. Mr. Carjientcr brought the caudle
an;l lanihoni.
L. C J. It seems the saints have a certain
charter for lyin«^ ; they may lie and cant, and
deceive, and' rebel, and think God Almighty
takes no notice of it, nor will reckon with them
for it : You see, gentlemen, what a precious
lellow this is, a very pretty tool to be employ-
ed upon such an errand, a knave tliat no body
would tru>t tor half a crown between mail
and man, but he is the fitter to be employed
about such works ; what pains is a man at to
get t!ie ti'uth out of these fellows ! and it is
with a great dcalof lalwur, that we can squeeze
one drop out of them ! A Turk has more title
to an eternity of bliss than these pretenders to
Christianity, for be has more morality and ho-
nesty in him. Sirrah, 1 charge you in the
presence of God, tell me true. What otlicr
persons did you see that ni<;ht ?
Dunne, My lord, I did not se^ any than
w hut I have toM you already.
L. C. /. Then they went out and brought
woixl that thou wert come, and so he came out
to meet thee. Very well ; 1 would have every
body that has bmthe least tang of saiutship
to observe the carriage of this Icllow, and see
how they can cant, and snivel, and lye, and
forswear themsolvr^, i.nd uU for the good old
cause : They will stick at nothing, if they
think tlicy can but preser\e a brother or sister-
saint forsooth ; they can do any thing in the
world but speak truth, and do their duty to
God and their govtrnuis : I acfk you again.
Dill not (.'arpeutei- meet you before you left
iiii'ks and Nelthurp.'
Dunne. No, he did not.
L. C. J. Then 1 ask you u'^aiti once more,
did not Carpenter ask you to drink i*
Dunnt. N(», he did not.
/.. C. J. Did not he lijihr \ou with a lan-
ihoni and candle into the iiouse ?
Dnniv. 1 \^ent into the Louse.
L. C J. DoNt ihoii i»i'li<»\e we tliink any
bi ,!y \\i\<>i ihtein 'i Did he light tiice in, i
a^k ilitL* :'
Dum c I went in iilon^ \\\[\\ >Ir. Car|)cntcr.
L. (..'. J. \\ iiat room diil L^ curry you into .'
Dunne. Ai'y lord, ho i-ii ricfi ice into no room,
(he \oun^;' '.voniaii shewed me into a room.
L. C. J, \^'liat room was it^*
DunuL. Into tliiM.itamhei'.
h. C. J, sVuH not thou in the ludl or kitchen f
Dunnt, No, uiy luid.
X. C. J. It is bard that thou htdifcnot «te
cup of drink to thy cake and cheese.
Dunne. My lord, 1 had never a drop.
L. C. J. No, nor did nobody ask yoa to cat
or drink ? — Dunne, No, my lord.
L. C. J. Thou art the best uatured fdlow
that ever I met with, but the worst rewarded. .
Come, I will ask thee another quortion : When
was the first time thou heard'st Nelthorp's
name? — Dunne. Not till be was taken.
L. C. J. V\ hat name did the fellow with the.
black beanl tell thee he had P
Dunne. My lord, he nerer toM me any
name.
L. C, J. Didst thou never ask him his name P
Dunne. No, my lord, that man that was af-
terwanls foun<l to be Ndthorp, I did not
know to be Nelthorp till he was taken, nor
what his name was, nor any name he had.
L. C. J. No, prithee tell the trutli» did DOi
Nelthorp go by the name of Crot\s P
Dunne. He did, my lord.
L. C, J, Then prithee, when did he firalgo
by that name in th v heariuff p
Dunne. My lord, I only heard Hicka aay be
went by the name of Croits.
L. C,J. When was that P
Dunne. When they were taken.
L, C. J. Did you not hear him called by
that name any time of the journey ?
Dunne, 1 cannot recollect, my lord, that I.
ever did.
X. C. J. Thou can'st recollect nothing of
truth : Is this as much as you can lay P
Dunne, It is, my lonf.
Mr. Jenninfrg.* You say Carpenter met yoa .
very civilly, and took care of your horse : Did
he make no provision for Hicks and Nelthorp's
horses ? W hat became of ihem P
Dunne. I cannot tell, my lord.
Mr. Rumsay. Did you see their horses after-
wards ? — Dunne. No, my lord, I did nut.
Mr. Rumsay, When they alighted from'
them, were they tyeit fast to tlie gate, or how ?
Dunne. They were not ty ed at all, as I know
of.
Mr. Jennings. Did you tell Carpenter that
their horses were there r :
Dunne. I did not tell him any such thin|^.
L. C. J. Thou art a strange prcvaricatiqft
shuffling, sniveling, lying rascal.
Mr. Foilcxj'cn. We will set him byforthfi
present, and call Harter that is the other fellow.
]^. C. J. Will the prisoner ask this peno»
any questions ? — Lw/r. No.
L, C J. Perhaps her questions might ei^
danger the coini:)*^ out of all the truth, and it
may be she is Hell enough pleased to have him ,
swear as he does ; but it rarries a very fool *
face upon my ^vuitl. [Then Barter wa^
sworn.
/.. C. /. Is this Barter?
31r. PolUxJen. Yes, my lord, forhis^prtirt
have his examination before two justiDei aC
pence ; hut we hope he is an honest l<dlow»aM^ .
will tell the truth.
L. C. /. That is all one whether yoa hM| \
541]
Jar tligh Treaton.
I
bii eximStifttlcai or doI ; I expect he sliould
tdl tue the trath^ and the whole truth liene.
Fritmd, yon know your scuii is *l puwti for the
Inlth ««■ what you te«fiiy to us ; tlie other fel-
l«w th«ai seest has been pretaricfttin^ vrilh na
all this wbih", and swenrinjj off and oii» oud
icarce told one uovd of truth, 1 know xery
well : Now I know as much ot'lhce as I do of
hhij, therefore look to thysdf, and let the
trutli and uotliiu;^ Init the truth come out.
Barter, Mov it please your honour, my
lord, ihts mail bumie came to my house upon
the Saturday, and spi>ke to me to ride ah>ng'
with him to' Ihloy1e*s court, where my lady
l^tala lived ; and I having' no other hu sinews at
that iime^ did go along with him ; He had a
1«tter in his pocket, and J saw him produce
the letter to my lady*s Itaillff, Mr. Carpenter,
hut he would not meddle with it, so 1 suppose
he we:3i in with it to my lady ; and wliile 1 was
in the kitchen, my ludy came thither, and
aake<I me, said she, whut'countrymau aii. thou ?
Said 1, madam, V am a WiltJ^bire maiu Saiih
ihe, do'st thou make bricks ? No, aaid 1, ma-
dam» I cannot, I can help in husbandry -work.
Saith she, if thou eould'st make bricks, I will
r've thee ten acres of g^it)und in such a place,
told her no I could not: and then she goes to
this man Dunne, and there she was laughing
with him, and looked u|tonme; and afterwards
when we were going^ along, I asked him what
she laughed at f
L. C, J, Ay, and now tell me what he said
to thee about tt ?
Barter, He told me, my lord, my lady
asked, whetljer 1 knew any thing of the ci»n-
oerti f Anil thai he answmd her, no ; this
the fellow told me was that she laughed at.
Atter tliis, 1 could not eat nor drink, nor sleep
for trouble of mind, UU I had discovered thii
to aoftie justice of the petice ; nnd I resolved
at latl to goto col. Feiiruddock, and consult
him about it ; ao 1 went over and told him of it.
X. C. J. What did you tell colonel Feurud-
dock, let us hear ?
Barter. Where I had been the Saturday be-
forei and whrre 1 »h(mld meet them a^aiu upon
Salisbury -Fkin upon the ^Wsday, tor I did
€X[»ect to meet them there according to ap*
pomtment, and we did agree he should come
and take them there \ but afterwards missing
them tJiere, or for some other rea^tou, f do not
know what, bi£ mind altered, and he came to
take tliem in the house : So when I met them,
we rode on about ten miliK, and they would
have had me to have led them a private way
over the fording briijge toiviirds ^lovlo's-court,
^u* I »"''* ili. Mi i,i - me thry iutended to have
III! \ muKi go the way that
would gii that private
way, and so lo«c thtir way ; then they sent
back thLw Dunm; lo Marton to one Fane, that
was the fat mao that »enl him : but I liudtog
that I was of no more vala« then, rode away
from tbctZL and baring a relation that lived on
thai itide of the country, I went to let colonel
Piuuddock kii#w that they were at t^ hoiue.
A. D- 1685.
But hefbre f went away from them, Ncltlio^
gave me five shilUugt, hulf a crown, and twd
shillings and a six- pence* J
L. C, J, Now ihou sayeet Nelthorp did^
Did^ft thou hear his name named ? j
Bfirtrr, I ue^rr could tind auy of thei|
names till thev were taken.
Mr. Pui tea; fen. Pray, llarter, what discour
hud you wiiii iJuiine the firsit time you wcr
goin^ to and from my lady Liiile's concerning
the men that he was'to bring thither, aud wha
estates they had ?
Barter. TWy lord, he said they had half ascor
of thousands of pounds a year a- piece.
Mr. FoUcxfen. Did he tell you I hey were (
come to my lad^ 's ?
Barter. Yes, lie told me they irere to <
upon the Tuesday, and they were to oom^
such a way, and were to come to tuy lady V f"
the evening.
h, a J. What wer^t thou to hare for thi ^
pains ? — Barter. I made no bargain, my lor J, ^
£. C» /. You ore all very free, kind-tiearted
people, I say that for you.
3Ir. Pollesfen. ^Vhat did Dunne say about
his gains ? ^
Barter, He told u)c he liad a very fine boot|
for his part, and that he should never wa
money apain, and that I should be very wt
paid, and gave me half a crown.
L, C, J. Then let my honest man, MrJ
Dunne, stand forward a little. Come, friend J
Ji'ou have had ^me lime to recoUccl yourself ;
et us see whether %ve can have the truth 4iut of
you novf : You talked of carrv'i'g a inessitige
from Hicks lo my lady Usic ; did not >»**
tarry a letter? — Dunne, No, mj> lord, I did not.
Z-. C. J. Did not you shew" a leltei to the
bail ill', Carpenter ?
Dunne. No, my lord, 1 did not.
L. C. J >Vhal suy yon, Barter, to that ?
Barter, My lord,' I did sc« him produce th
letter to the bailiC
X. C. J. Then 1 will mk you another que
tion ; Did you not tell Barter that you ?>hould
be at8alisnury-P|ain, with two )»eople, ujtan
the Tuesday ?
Dunne, ^o, my loi-d, I said between Comp-
ton and Fovant,
L. C. J. Did not you tell him, that thcj^
were brave fellows, and had God knows* hor^
many thousand pounds a year a- piece f
Dunne, No, mv lord, 1 did not.
L,C.J, Then one thing more: Did not yon
tell him, that you told my lady, when !.ho
asked whether he was acquainted with the cou-
cern, thut he knew uoihiiig of the bosintss ?
Dunne, My lord, 1 ihd tell him so.
L, C. J. Did ywn »" ^ 'l*'**^^* y^*^ ^""^ ' ^**"'''
have a Utile funter discourse : Come now, and
tell us, what basmej»s%*as that:' niRltelhiiis
»o, that a man tuJiy uuderstaud and believe tliat
ihou doil Bi>eak truth.
Dunne, Do4s your lordship attk what that
business was f
X. C. /. Yes, It is a pUtu qu«tion -, W hat
was thai businesa that my Udy asked titey,
9iS]
I JAMES n.
Trial of the Lmfy Alke Lide,
CW*
whether the other man knew ; and then you
aDswered her, that he did know nothings of it ?
—[Then he Miused a while.]
jL C. J. Remember, friend, thou art upon
thy oath ; and remember withall, that it ia not
thy life, but thy soul that is now in danger :
tlierefore I require from thee a plain an-
swer to a very plain question : What was that
business my lady enquired after, whether the
other fellow knew, and thou toldest her, he
ditl not P — [Dunne made no answer, but stood
luusing a while.]
L. C. J. Uc is studying^ and musing; how
he shall prevaricate ; but thou hadst better
tell the truth, friend : remember what thou
hast said already ; thou hast said, that thou
didst tell that man, that the lady asked
^ou, whether he knew any thing ot the bu-
siness, and thou toldest her, he did not?
^~ow 1 would know what that b«ismess
was. — [Still he made no answer but seemed to
muse.l
L, C. J, Look thee, if thoa canst not com-
preheud what I mean, 1 will repeat it to thee
agaiu ; for thou shalt see what countryman I
am, by my telling niy story over twice : there-
fore I ask tliceunce atpiin. Thou sayeilst thy
lady asked thee, whether he knew of the bu-
siness ; uiul tliou toldeKt her, he did not. Now
let us know what that business was?
Dunne, I cannot mind it, my lord, what
it was.
L. C. J. But mind me, prithee : Thou didst
tell that honest man there, that uiy lady Lisle
asked thee, whether ho knew any thing of the
business, and thou saidest no. VVliat was that
buijiiness ?
Dunne. That business that Barter did not
know of?
L. C. J, Yes, that is the htisiness ; be in-
genuous, tell the truth : Oh ! how hard the
truth is to con»o out of a lying Presbyterian
knave. Prithet*, fritMul, cousidt- r the oath that
thou hast taken, and that thou art in the pre-
sence of a (lud that can n (it endure a lie, nor
whose holiness will not admit him to dispense
-with a lie : Consider that that (ioti is an infinite
bein^ of purity, holiness, and truth ; and it
would be inconsistent with his being todis-
{>ense with the least untruth ; and thou hast
called hini to witness, that thou wonldest tes-
tify the truth, the whole truth and nothing but
the truth. I charge thee, therefore, as thou
wilt answer it to that God of truth, and that
thou niayest be called to do, for ought 1 know,
the very uext minute, and there thou wilt not
be able to pallialc the truth ; what was that
business you and my lady Bpi4ve of ?— [Tlien
he paused for half a quarter of an hour, and at
last said ;
Dunne, I cannot give an account of it,
my lor«l.
L. C. /. Oh blessed God! Was there ever
such a villain upon the face of the earth ; to
what limes are we reserved! Dost thou be-
lieve thai th«>re is a Goil ?
i^— €. Yei, my ford, I do.
X. C,J. Dost thoo beKm, thtft UmiI CM
can endure a lie ?
Dunne, No, my lord, I know h% oaanot.
L, C, J, And <fo6t thou believe ibentfuliM
is a God of truth ?
Dunne, Yes, my lord, I do.
L. C,J, Dost thou think, that diat Ge*
of truth may immediately sink thee into Ml*
fire if thou tellest a lie ?
Dunne, I do, my lord.
L. C. J. Dost thou believe, that he dost ob-
serve every thing that thou thhikest, sajest, er
doest ; knows the secrets of thy heaft, and
knows whether thou tellest alio or not, tboegh
perhaps it may be hid from ns ; aad knows
whether thou dost prevaricate or not P
Dunne, I know, the Lord does know sA
things.
L, C, J, Dost thou believe, that he kwwfl
the business that you and my lady the prisoner
were talking of, as well as you do ; that he
hath an almighty power over all h» cpsetani,
an all -piercing eye, that looks mto the hearts of
every one of them, and firom which eodiuig
can be concealed f D<»8t thou believe it poosMs
to conceal that very discourse of yours liroei
the knowledge of that infinite Being ?
Dunne, My lord, I do believe that there is a
God above.
L. C. /. I ask thee then again ; dost tbse
believe, tliat that God above, who is a Getf sf
truth himself, is ouniiscicut, oronipreseMt, •»
whom all truth is naked and open, that be
knows every thing that is either thooglit, sski,
or done by an>- of his creatures, sees sod
knuws the hearts of all men ; dost thoii be-
lieve all this?— [He stood silent for a good
while.]
L. C, J. Friend, deceive not theself; the
great God does observe and know the seerrt
workings of thy thoughts now, and how tradi
struggles to get out, but bsseness and vilhmy
keep it in: All the private imaginations el* thy
heart are not only known to him, bnt regietcped
by him, and thy conscience will bear witeew
to thy accusation when thou art called te an-
swer for them, and answer for them thoa i^
tor the scripture, that is the woni of God, t
us, * Tliat every vain thought we must i
for.' ]>ost thou thru believe, that any db-
is course between yon, though never so pnvels,
pri^-ate from the Almighty, All- knowing' Gedf
Dunne, 3fy lord, I know it is not, Mr
cannot be.
L, C. J, I therefore once more adjure tlieev
as thou wilt answer it to that God, that k
the Searcher of the hearts and trier of the
reins, to whom all hearts are open, and frsar
whom no secrets are hkl, that then loahe
me a plain answer to my question; aad
as thou hast calh d God to bear i^itness tethe
truth of the evid(*nce thou givest here ia ^Mt
court, so I charge thee, in his name, to de-
cbre the truth, and nothing but the troth. Hhm
tell us what was the biisineiis yon spoke off
SBnt he made no aiHiifelv
Uam MoDtagve^ Btf;/
Frtend* mind wh«t my lerd mya to yoa* imd
cnn^itjf r, how msy ft thiog it is fbr t man to
4]>eak truth, juid ^ve a plajn answer to n filnm
qrie^tion* You cannot but understand what
tnv loM asks of ynn : \ nn ^niil tven no^v, that
\*)M did tell the ir ■ -irter, that my
lady asked you f \\u - i > u- any tliingof
the bosictess i and you told iter, he did not.
Now my lord would liave you tell os, what
that bQ8i(j€^ was?
[He seemed to tarn his head on one aide,
but returned no answer.]
L, €* X He is ^olag to ask that man there
whether he shall tell the ii'uth.
Dunne. No» my lordi 1 ask tio man any
such nuestioD.
L. C. J, IVithee tell its the troth then now ;
Thou uri lo know, that thou standest in the
presence of the God of truths and host called
Dim to witness, tltat ttiou wouldst tell the
truth.
Dunnt. My lord, I do tell the truth, as far
as I can remember.
L. C. J, Then what was that you told my
lady Lisle, Barter did not know ?
hunnt* What Barter did not know^ my
lord?
X. C. J. Ay, 19 not that a plain question f
Of all the wiiueases that ever I met witiv, 1
never saw thy fellow.
[He stooaa (^^ooil while, and made no an*
swer.]
L. C. J. I hope» gfentleraen of the jury, you
take notice of the strantje and horrible cjirriage
^ this fellow \ antl withal, you cannot hut
rve the sjiirit of that sort of people, « hat a
illamous and devihsh one it is : good God !
that ever the lhtn|f called religion (a word thai
people have so much cibm^e*!) should ever wind
tip persuoK to such a height of impiety, theit
it should make lliem lone the belief that there
is a Gud of tnith io Hc^avcu, that sees and
knows, obsertes and registers, and will punish
and take vengfennce of tklshood and perjury.
ft may II el I m;^ki^ i lie rest of mankind, that
have any sort of faith in a Deity und a tuture
life, ti> abhor sofl detest both the men and their
li^ion, if surh almmtnalde principles may be
* so, A Turk is a snitit to such a fellow
, nay u P^^nn woiilrl Ue anhHrHpil to br
ight to hare no more truth in him* O
j ,»- »in« I What nn o^fo do wc live in, and
what ;' II of viperb do \yv live among ?
t^rt, I I you call the Protestant reli-
^on \ htiati so g'lorion;) a nami^ l>e applied to no
much Tillany and hrpi»crisy f \^ this the pur-
suasion \ou'hopf to live, and dif, aT\d find sal-
vation in 5* Will stny of you iilt, gentlemen^ be
contented to tlie with a lytMn v)ur mouth ? Ilo
not you all rxpect, arccrrding^ to the orthudox
rtrine of the true Church of Kng'bnd, that
niut damnation Hill be the portion ol lyars?
J th »u wiciotl wreti-h, how dur^t thou iip-
f toffivr trjtiroony befmo eren an earthly
ibunn* witii >«> much injjiudeucc and fulji-
1, when isiriry lye tnH rust thcf «o ilwav,
a ttacQi'caoa hearty rej entancc, and
^U
\ take
pVlllai
the infinite mercy of the great Ood interpose f
I charjfo you once mai^, as you will answer it
at the bar of the great ,ltH<-r« ,.i ,,ii x\^^ wrnHd^
(hat you tell me what " ^s was ^^li
and the prisoner talked a I m run J-lpf
what a conditiou thou 1 y
all this sliufRinsf aofl prt tr»
ofiy thinij of mercy in this h\'^ ; for ojilecti it is
not fit thou shoumst have the leasii hivpea of
mercy oa this side eternitv^ and truly there is
no man ean imagine Ic^s'tlian infinite mercy
can pardon bo fiagiltous a sin, one that soifft*
podently telU and stands in a lie. *
[Still he would make no answer.
L* C X Jesus God I Was there ever such a
fellow in the world as thou art ? Prithee let me
ask thee once a^ain. Dost thou believe that
thei^ is a God, that this God h spotless truth
and purity itself? Dost thou believe thou hast
a precious and immortal soni, that is to live in
everlasting- bliss or eiernut misery after this
life, accortfin^ly as thou cHrripstit here; if
thou dost fjeliev'e it, ought not the concerns of
that precious and immortal soul of thine to be
much dearrr to thee than ten thousand worlds f
Does not the Messed word of truth leM tliee^
What will it pro fit a man to gain the whole
world, and lose his own soul ? or what shall a
man s;^if e in exchange for his soul ? Is not
this the mice of scripture itself? And wilt
thou haznrd so clear and precious a thing for a
lye, and an nuprofitable lye too? Thou wretch 1
all the niouiitaioii and lolls in the world heaped
upon one another, will not cover thee fronj
the TengLftuee of the great God for thii
transgresjiion of false w it nrss- bearing % What
hopes C4m there be for so prudigate a f iUain a»
ihoii art, that wi hnpuJenily stands in open
deQanccof the oni nip reset ice, omnificience, and
justice of Gnd, by penitsting in so palpnble &
lye ? I therefore rei|uire it of you, in his name,
to Tell me the truth,
Dtiftnc, \ en n not tell what to say, my lonl,
X. C. J. Good God ! Was there ever such
an impudent raseal! Well, I will try once
more, uud tell thee what I njcau j y- i ' >u
tohl tlial hon< -st man (for truly hi it>
be) ihnt my lady aske<l you whetlur ih* mew
of the busineks ; and yoli told her, he did not i
prithee hv s^i p*ee as to tell us what tliat bu *
siuess wut$f
[Dunne pa».«ed and i»outd make no answer.]
Lr C* J* Prithee what didst thou mtiin.
Ihy lady m(^an, by that budneas?
[He paused again, but would make nn iiDB\Tcr.
L, C,J. ^Vhy, prithee, dost thou thmk thoit
dost her a kimlness by this way ot ; ' ?
8ure ihou eau'st not think so ; f(<i tt
ol'carrist^e were enough to convict bur, iMUcrt
were notJiing else.
Dunnt '*^ ' my lord, I do tiol thiok to
dohtrui at all, ^
L. C. J. t i ■' ' * - - ' - lethee
to \\,\\'v s*m\v \ to thy
ov%u jjoulihat *., *u 4-,^^i y,^i»k ^'4 c^iUfting
I
Mr]
1 JAMES U.
Trial of the Lady Alice Lide,
[348
ruin and destraetion by these means ; dost thon |
call this religion ? It is a prodigious piece of
religion ! Come, pray tell mc what business it i
was you talked of? You should not have asked |
Voe a question so often, but 1 would have given
you a plain answer, though 1 were not under
tbeobhgatiou of an oath, as you are.
Dunne, My lord, pray ask the question
ever again once more and I will tell you.
L.G.J, I will so, and I will ask it you with
all the calmness, and senousness, and caiulour,
that 1 can ; if 1 know my o^n heart, it is not
in mv nature to desire the hurt of aiiy body,
mucn less to delight in their eternal perdition ;
no, it is out of tender compassion to you that I
use all these words : I would have the to
have some regard to thy precious and im-
mortal soul, which is more valuable than
the whole world ; reflect upon that scrip-
ture again which I mention^ before, which
must be true because it is the words of him
that is truth itself: What shall it profit a man
to gain the whole world, and lose his own soul?
or what shall a man give in exchange for his
•oul? If that soul of thine be taken away
what is the body (it tor, but, like a putrid car-
ease, to be thrust into and coverea with the
dust with which it was made: tlierefore I ask
you, with a great desire that thou may'st free
thyself from so great a load of falshood and
perjury, tell me what the business was you
told the prisoner, the other man Barter did not
know 2
Dunne. My lord, I told her, he knew no-
thing of our coming there.
L. C, J. Nay, nay, that can never be it, for
he came along with thee.
Dunne. He did not know any thing of my
coming there till I met him on the way.
L. C. J. Prithee niiiul my question ; sure
enuu'^li thou hadst toM him whither thou wert
goinif, or else he roukl not have bt^n ih}'
guide ; so that he must needs know of thy
coming there: but what was the business that
thou told*st her, ho did not know p
Dunne. Slie asked me whether I did not
know tliat Hicks was a noncouformist?
L.C.J. Did my lady Lisle ask you that
question?
Donne. Yes, my lord ; I told her I did not.
L. C. J. lint that is not my question : what
was that business that he did not know ?
Dunne. Jt was the same thing: whether
Mr. Hicks was a nonconformist.
L. C. J. That cannot be all ; there must
be something more in it.
Dunne. \ es, my loid, it is all ; 1 know no-
thing more.
L. C. J. What did she say to you when you
told her, he did not know it .''
Dunne, bhe did not say any thing, my
lord.
L.C.J. Why, dost thou think, that aAcr
all this pains that I have been at to get an answer
to my question, that thou can'st banter me
with such sham stuff as this P Hold the candle
ie his facei that we may see liis brazen iace.
Dunne. My lord, I tell you the truth.
JL C. /. Did she ask thee whether that maa
knew any thing of a question she liad asked
thee, and that was only of being a noncon-
formist ?
Dunne. Yes, my lord, that was all.
L. C. J. That is all nonsense ; dost then
imagine that any man hereabouts is bO weak as
to lielieve thee.
Dunne. My lord, I am so baulked, I do not
know what 1 say myself; tell me what you
would have me to say, for 1 am cluttered out of
my senses.
L. C. J. Why prithee, man, there is no-
body baulks thee but thy own self; thou art
asked questions that are as plain as any thing
in tlie world can be: it is only thy own de-
praved naughty heart tiiat baulks both thy ho-
nesty and understanding, if thou hast any ; it is
thy studying how to prevaricate, thai puzdci
and confounds thv intellect : but I sec all the
pains in the workJ, and all compassion and cha-
rity is lost upon thee, and therefore 1 will say
no more to tuee.
Air. Volkxfen. My lord, because he pretends
to ignorance what Hicks was, I desire to ask
Barter one question : pray, what did he tell
you concerning his carriage toMarda these
peoiile?
Barter. My lord, he told me that he had
concealed them in his house ten davs before.
Dunne. That I neter did in my lii'e.
Barter, 1 know not whether you did or no,
biU you told me so ; and I miide answer to
him agam, my lord, 1 wonder how he were
able to ketip them without being discuvered,
there being such search ; and he answered, he
did keep them in a chamber all day, and then
they walked out at night ; for the searches of
the houses were usually at night.
Dunne. My lord, 1 can bring testimony to
the contrary.
I.. C. J. fiut really I believe it will be no
strange thing for me to say, I do believe him ra*
ther than thee ; 1 would I had half as much
reason to believe thee as I have to believe him :
J would fain have thee speak truth, if 1 could.
W'hat say you to the question I asked yuu.
Dunne. 1 cannot tell what to say, my lord.
L. C. J. Say the truth, man.
Dunne. 1 do, as 1 hope for mercy, mj
hud.
JL. C. J. Dost thou hope for mercy ? Thou
hast very little reason for it 1 assure thee.
Well, I will try thee with another question :
didst thou tell that man, that it was tlie best
job thou ever hadst in thy life ?
Dunne. No, my lord, 1 did not.
L. C. /. Nor nothing to that purpose ?
Dunne. No, my lord.
L. C. J. What say you, Barter, did not bt
tell you so ?
Barter. Vcs my lord, he did ; and that h«
should never lack money again as long as he
lived.
L. C. J. Then I ask ^*ou one questioD moreL
Barter; did you tell this to col. PeaniddpcU
fir high Treason.
B*irtcr, Ve?, I did, my loH.
L.C X Tlirn llint w ill fort ily Sii» teslinionv ;
ert I r biirt, !>eciutse I wouhl make
_jisn ( *vi««trhei< (Ibrin o>v conscience
1 k«* .re some sucb in the hollDm of
tWw 1 iaifp\v, thnt tliG trutb wilt uiil an^ {
!! way Ilk ikUin . Anrla^rtut* ' ' * it
ironi u\\ v'Hi LTeialeiYien ' ^
KImI ' '* ■' ' ' I CCHCvrucu, tiJuL %iii lakt*
I ttiili I r what h»a f ms^iCfl )i4:re, utuJ
lliai a. 4 ...,.., u.^..^'ii of pcfjury be (>rere[Te;)
ligutDittlibidlow.
[Tlien Co!» PenrvdJack ^as sworn.]
L. C. J. <Jol. Ptnnjcl«1ock, ujmn the oath
yuu have taken, did thiit man^ Bftrter, come
lo yini ; niMl what liid be my to you?
Col, Pcnr^Mofk, My lord, tbAt man, Bftf*
ter, eaine to my bouse \n the moming, upon
Monday, and told mp^ he hnd been with one
Duutje, tip"n a jftnrney to Mrs. Li*ile*s house,
td^-el enit m( for some peojde ; and that
thev hail to mt^et him the Tueisday
followinji, i>M\v* ( 11 nine and eleven, upon Sa-
lisliury- Plain, ami tlure if I pkased, [ iui|,'ht
take iheni. I orileri'tl him to efo nccordiiig to
the appfiintment, tutd withiit, I sent a servant
of itiy own to wulc'h when they came by ; hut
it happened^ I snpjKjse, hy their takinfjt onolher
L way, that \w iniHtud of »*hein : hut liarter left
l^^prd, that in oi^ he did not tind iliem there,
Fm uiust conclude, that he wiis i^une with
^ them to my ladv Lisle^ft hotijic ; and he tohJ
me w ithal, says W, I helie?e they are rebeli*!
Urcauite he that desitrt^d me to be their guide,
taid the sunt** to me. 8o early the next morn*
ing^ 1 took fiomc soldiei^s with mi\ ami beset
my lti<ly Li^ile's house ; it was a pretty xvhile
bofort: i cordd yei «ny body in the housie lo
Hear : at leni^lh that mnu thiit they say was
the hnihtt', 1-urpoiiler, came out ; and I said
lo hiui, Friend, you hful bp.wt be fixe ur»d inge-
nuous, and diiieo^cr whu urc in yotir lady'd
houve, for 1 am surt? there were wtiie stran^ei^
came htibtr hai nij^ht ; let me know who
they nn\ and shew me what pint of the houife
I tjjity are iu. He did confess to ure there %vere
i.^tafi§rerii in the houise, and (Hiinted to tiuah pari
NPlbe boiI^e ; but prnr, ^:ays he, do not tell my
"fHistfi'w of it. At we went in» and
unmeditittlY we to ! ckii aod thii* *ame
ilunne iti tne malt hoube.
L. C, J. Was Dunne laLen m the malt-
hottae?
Col. Ffnruddock, Vcs», b« tiad covered bilO-
fclf Willi -* t" -t fd' stuff there.
L, C hat did you do then ?
L CoL j. \. Hy bidy after" -^-i ^ '"«*»-
n|f touf, t told tier, uiadnri), yon
PKy ill in barbourinjf rirhelsi, aud - _
tibmwit to tile kirifif'tt t*neinies. Hmth she^ t
knaw noUting of ihem ; I am a btrangef to It.
FfM,iWd I, madam, he ho tVee and inijrenaouji
Wm Ifte, und MO kind to yourself, tut If the? re
Ite ' ' pert»on that i^ c once u ted in any
Mti lioitse, (lor I am i^ure there in tiomt
lody tjJAi:) M to dcl^f cr LttD tip, ftiid you tlitU
A.D. 1695.
CsSo^
come W 110 ftirther trouble. She denied it,
fiitd said, I know nothing of them : But we
went on, and searched, and at l^utt di«<^;orered
the other uiun, NclUiotp, hid iu a hole hy the
chimuey.
L* C, X Dunne, how came you to lude
yourself in the malt-house?
Dunne. When 1 htAfd the stir and bustle^
I went through the ch ■■ '■ " - "ipre 1 Itiy, and
came inio tlutt room v\ uketi,
L. C.J. When tfii in *^tirnTid«
hustle, why wert thou ul.^i ! >! jn , litu - '
Dunne* My Jord^l ^s-as tn^^htej atlLt uoise.
L. C, J. . Prithee, what neetl'^t thou be atraid,
for thou didst not know Hicks, tior Nelthorp ;
And my lady only asked thee, whether Hii4kS
were a nonconfonuist parson i Thou art a ftty
imioceDt sny], and surely nee dest so oocoflion
to he afnud. I doubt there was BOfaelluin^ of
that business in the caiic that we were talkmff <
of before, if we could hut g«t out of thee wb%i
it was.
Dunne, My lord, I hettrd a great noise in
the house, and 1 did not knov? what it meant |
and m 1 went and bid myself.
L.C.J. Alack-a^dayl That is very atrarifSfe^
that thou should'st hide thyself for a hitlc
Doise, when thou kuewe^t nothing of the husi*'
ne^s, nor wen acquainted with any tliiofrof the
n»atter at all. But cok Feurnddock, I would
ask you one question more: Did that honest
mail tell you, that Dunne had told htm, that it
wafl the liest job that ever he had id his life,
and that he should want no money ?
Col. Pcnruddock, 1 cannot tell that tml)*,
my lord \ } do not remember thatt but hesuid,
he apprehended them to be rebels, and that
Dunne told htm as much.
L. C,J. What do you say lo that, Dunne P
I I »eem!» you told Barter, that you aiiprcbeod'
ed them to be rebels?
Dunne. 1 apprehend Uiem for rebels, inj
lord ?
L. C. J. No, no, you did not apprehend
them tor rehetls, but yuu htd them for rebelt.
But did you say to Baiier, that you took theut
to be lelwht' ^
Dunne. I lake them lo be rebels !
L, C. X You blockliead, [ asdc yoa^ did yom
tell him so? — ifunuc. I tell Barter so!
L. C* J. Ay, i» not that a plain question?
DuHHf. I am quite cliitdred out of mft
senives ; 1 do not know what I say.
[A cand!'
Ic.j
of none of
but it sho
r his nose,] ( \
rould r«jb thee
any V ]
It neither thou, nor tliyi j
, -. had any, lor sthe knew
tl neither, though she bad sent forj
Mr- i'oilcjfen. Pray, col. Pcoruddock, did'l
you tell her you came to search for retvets ?
Col. i\nruitdm'k. Ye», Sir, 1 told her
soon us I %nAv hfr ; but wc luid a good whiim i
be»et t before auy btidy miv
at lei- wsore mn» wbm^i
woDQett, I iuxagtited ibcni to be *
8
S51J
r JAMES n.
Trial of ike LadgABaLisk,
taar
that upoft bur nioise looked out at the wmdov ;
aod 1 toM them there were rebeb in the bouie,
and I required them in die kiDji^'s name to l>e
delirered to me ; but I saw not niv lady tiii-
after i had brought out Hicks and Dunne.
L. C. J. What said she to yon ?
Col. Penruddock. She said, she knew no-
thing of their being in the house ; but I told
her there was some body ebie besides, and she
would do well to deliver him without trouble:
bnt she denying of' it, we searched further, and
found Nelthorp, as I told you.
L.C.J. But she denied it first, it seems?
ImU. Bfy lord, 1 hope I shall not be con-
demned without being heard.
X. C. /. No, God forbid, Mrs. Lisle; that
was a sort of piactioe in your husband's time ;
vou know TerjT wdl what I mean: Bnt God
w thanked, it is not so now ; the king's courts
of law never condemn without hearing. Col.
Penruddock, have vou any more to say ?
Col. Penruddock. No, my lord ; but here is
one Mr. Dowding, that was with ine when I
■earched the house.
JL. C. J. Swear him. [Which was done.]
Mr. Polkxlen. Mr. Dowding, ^y did you
go with col. Penruddock to Mrs. Lisle^s house ?
fifr. Dowding. Yes, mv lord : We came to
the house, and beset the bouse round, some to
the baok gate, and some to the fore gate ; we
called almost half an hour before we got in ;
and had found two, and we came to my lady ;
she said, she knew nothing of any body being
in the house ■
Ia$U. My lord, this fellow that now speaks
against me, broke open my trunk, and stole
awav a great part ot my best linen ; and sure,
Diy lord, those persons tliat rob me, are not fit
to be evidences against me, because it behoves
them that I be convicted, to prevent their being
indicted for felony.
L. C. J. Look you, friend, you say you
went with col. f'enruddock to searcii the
bouse, did you find any body there?
Dowding. Yes, my ionl, I i'ound this same
Punne in a little hole in the malt-house.
L. C. J, Was he covered, or not ?
Dowding. Ue had taken some stuff or other
to coTer him.
L. C. J. Did ybu find Hicks there .^
Dowding. Yes, my lord, we did find one
that said his name was Hicks.
L. C. J. Is that the same Hicks that is in
Salisbury gaot?
Dowding. Yea, my lord, it is ; I saw him
jKSterday at the George in Salisbury, when he
Bad that discourse with those other gentlemen.
Mr. PoUexfen. Swear Carpenter and his wife.
[Which was done.]
Dowding. My lord, Hicks acknowledged
before me, tliat he was at Keiiisharo, in the
duke of Monmouth's army.
Mr. PolUxfen* Come, Mrs. Carpenter, tell
■nr lord and' the jury, did you know the time
when theae men eame to your lady's house ?
X. C J. la this tba bailiir's wife ?
X. C. J. Well then, what tty yoa te the
qiiestiouP Do yon know the tioM when they
cameP
Mrs. Carpenter. Yea, my kwd, they came
at night.
L. C. J. Did yon see them theref
Mrs. Carpenter. Yes.
X. C. J. Were they lodged thereF
Mrs. Carpenter. Yes ; bul i never made
the bed.
X. C.J. Whodid?
Mrs. Carpenter. My lord, I oamiot telL
L. C. J. Had they any iupper or Tictoab
there? — Mrs. Carpenter. Yes, tney had.
L.C.J. Who dressed it?
Mrs. Carpenter. I did.
X. C. X By whose order did jqu dreaa hP
Mrs. Carpenter. By my lady'a order,
X. C. J. Prithee where did they eat their
meatP
Mrs. Carpenter. In the chanaber, wuj tord,
where they lay.
X. C. J. Who was with them?
Mrs. Carpenter. My lord, I camiottall, ftr
I did not stay in the room*
X. C. J. Didst thou see them whea they
came into the room P
Mrs. Carpenter. My lord, I dnesaed the
meat, and carried it within the door, and my
husband set it upon the table.
X. C. J. Prithee tell me who Wat with
them P Was thy lady there?
Mrs. Carpenter, My lady was in pitaaiee
there then.
JLC.J. How long did they stay bdowifiuifl
before they went up?
Mn.Carpenter. Truly, my lord, I cannoltefl.
X. C. J. Did your lady use to aup below
stairs or above P
Mrs. Carpenter. She used to aup beloWy tiy
lord.
Mr. Pollerfen. My lortl, if 3roar lordship
please, this ' woman and her buslMind are boMi
unwilling witnesses ; but we will examine tfas
husband, and see what we can get but of trim.
Hark you, Carpenter, did you meet with thii
fellow, Dunne, at his first coming to joat
lady's house ?
Mr. Carpenter. Yes, my lord, I did aae kim
there on the Saturday.
X. C. J. Well then, let me ask you a qnei
tion ; and be sure you tell me the tmtii, ftril
may be I know it already ; did he offer yon a
letter to be delivered to your lady ?
Mr. Carpenter. No, my lord.
X. C. J. What do you say. Barter?
Barter. 1 saw him produce it to Bfr. Gltf*
penter, bnt he refused to meddle with it^
Mr. Carpenter. My lord, he asked dm^ If
my lady would give entertainment to HM
Hicks, and another person, but he did not know
who tliat persi in was.
X. C. / Did he speak of another pammf
Mr. Carpenter Yes, he did. '
L. C. J. Who was that other person P
Mr. Carpenter. I did ask his niutto^ talTki
Bnid|hodidttoCkn9whim. '■:*'"
for Wgh Tfcason*
L. C^^^ ^ M, whi'ii tliey cameilicre
on ihe Tut it, Uow diavDU icctive
Uirm ?
\ Air. Carprntcr. 1 did not receive I hem,
I L, C. 7. I>»tJ rmt you li^Htl the candle, i\\\d
I briirg it in & lanthoiii^ to It^ht hitii iolo ihe
•tabte ?
Mr. Carpenter, My hrd^ that was after-
ward s.
L. C. /, Did tiot 3?ou Iring' the mco into the
Mr. Car/^fii^rr. No, my lord, indeed I did
ooU
X. C. /. Did not yon see them «ll ni^^ht ?
Mr. Carpenter, \ es, mv tord-
£. C. /* Then where drdyou tee them first?
Wr, Carjtenter* In the room where they
sopped nod lay.
/T, C. /. Dtd not you meet thero in tbt
court- yard, — Mr. Curpenter. No, my lord,
£. C. X Who g-arc you dircctious lo light
Dunne into the stahle?
Mr. Cu^rpeftter, They told me his horse was
out in the yard.
\ LC.J, Who told you so?
^^^ Mr. Carpenter, The men did,
^H L, C. X Where did they sup ?
^^Bj^lr. Carpenter, In the room ^bore stairs.
^^K Z.. C. X Who sapped alot^^ with them ?
^^PSIr. Crtrpenttr, I cftODOt say any hotly
■ tupped with them.
i C. J. Was not my lady there?
Mr Carpenter, 8he was in the room, hut I
did nut see her eat any thing*.
L. C. /, What time of the night did they
etmtf
Mr. Carpenter. About ten of the clock.
X, C. J. And where did they lie?
Mr. Citrpcnier, In the room where they
aujHied.
L C. X Who lay there ?
Blr. Car^^e^ler* Bickt and Nelthorp ky
Iberc
h, C. X WasNelihorp namc<l there ?
Blr, Carpenter^ No, I nefer heard of his
I name till aner he was taken,
i L.C.J. What kind of man was he?
I Mr, Oirpenter, A tall, thin, black man.
I Z« C. X. Well, what can you say more?
' Mr. CtirpenicT, My lorJ, thtti person has
•wore^ that a letter was offeretl me, hnt f re-
fu^etl il ; hut I aaaure your lordship I never
aaw mty letter.
I Barter, I am sure he met you, and, as I
rememlier, there was a letter pitHlncnl,
X. C*. X. TUuu sluHilrlf i.t nnt ]»- n r'Ty with
him, tV ,,:'et that
thou Tt'l I I. hereupon
Dunne wciiiiu to thy lady and delivered his
xneyuiifc to her.
Mr. Carpenter^ That, my lord, I aeknow*
kdire.
X. C. X Then, nrtihee lei me ask thee ano- !
Iher qucstiou : Din you catry any bucv up tutu
Ipr room f
J Mr. Carp€ttt€r* My lady gava order for tW
VOL Kh
X. C. X. Did you make Dtmue drink?
IVlr.Cflr/»en/cf. No, 1 did not,
X. C X Did you offer him any drink ?
Mr. CnrpcrUer. My lord, f did not see him
drink at all
L, C. X. What say yoUf good womao i Did
not viiar lady sup there?
Mr. Carpenter, My lord, my wife iraa littta
there ut all.
Mr. Rufnte^. Now, my lord, Dunne says
he will tell all, whether it make for him or
a^inst him>
X. C. X Let him but tell the truth, aud I
am sattsfieit.
Dunne. Sure, my lord, I ncfer entertained
these Mien a night'io rny house iu my life;
hut this Hicks sent that man to me, to go to
my lady Lisle's, to know whether she would
pteii«e to eniertiiin htm ; And when I came,
my Udy asked me, whether he had been in
the army or no? 1 told her, I coul. not tell, I
did not £ I tow that he was. She then asked me,
if he hod no bQ<ly else with him ? t told her, I
belief cd there was: This is the ^cry troth of
it, my lonl, I asked her, niiffht iIm! men b«
entertained ? She said they might. So when
we came to my lady Lisle's on the Tuesday
ni^ht, somebody took the two burses, 1 cannot
ten who, if I were to die ; the two went in ;
and allter I bad set up my horse^ ) I went in
along^ with Carjienter un into the chamber to
my lady, and to this Hicks and Nettliorp ; and
when 1 came there, 1 heard my lady htd theia
welcome to her houses and Mr. Carj»enter,
or the maid, I cannot tell which, brought in
the Rtmpcr, and set it on the table,
L. C. X And didst thou eat or drink witls
them in the room^ or not ?
Dunne. My lord, 1 will tell every thing; that
I know ; 1 confess £ did both eat and drink
there in the room,
X. ex. I pity thee with all my soul, and
pray to God Almighty for thee to forgive thee»
and to th<? blessed Jesus to mediate for thee 5
and I pray for thee with as much camestnesa,
as I would for my own soul ; and I t^eg" of theis
once more, as thou reganlest thy own clemai
welfare, to tell all the truth,
Dunne. My lord, I did nerer know tbest
men were in the army when 1 caiTied the
message to my lady Lisle's, nor nefcr did en-
tertain them tn my house in my life- ^ me, so
much as one night.
X. C. X Prithee, I do not ask thee what
thou did&t not, but what thou did»;t ?
Dunne, My lord, I will tell all 1 know.
X. C. X Wnat dlscourfie bad you that uiglil
at the table in the room ?
Dunne. I cannot tell what discourse truly,
my lord, there was.
'X. C. J* Was there nothing of coming from
beyond seas, who came from thence, aud how
they came ? Come, J would hare il nittier the
eflVct of thy own iogeututy, than lead the^^
liy auy nuestions that I can propouild ; conitt
tell us what was the discourse f
Dunne, I do not raopasabc aU tht discoun*.
I
m
355]
1 JAMES II.
Trial of the Lady Alice Lisle,
[356
X. C. J. Prhhcelet me ask thee one question,
and answer roe it fairly ; Diilst thou hear
Ne] thorp's na^ie named in the room ?
D'nine. My lord, I cannot tell whether he
wei'p called >ieUhor|), but it was either Croils
or NpUhnr|N 1 am sure one of them.
L. C. J» Prithee be ingenuous, and let us
hav(^ the truth on it.
Dunne, >jy lord, I am ingenuous, and will
be so.
L. C. J. I will assure you, Neltborp told me
all the story before I came out of town.
Duri'ic. l think, my lord, he was called Nel-
thorp in the room, and there was some discourse
about him.
L. C. J. Ay, there was unquestionably, and
I know thou wert by, and that made me the
more concerned to press upon, thee the dangler
of forsweariijjij thyself.
Dunne. . My lady asked Hicks who that
fcntleman was, and' he said it was Nelthorp, as
remember.
L. C. J. Very well, and upon that discourse
with Nflihorp, which I had in town, did 1 ^ive
particular directi(»n, that the outlawry of Nel-
thorp should be brou^^ht down hither, for he
told mo p:>.rilrnlaily ofall the passages and dis-
course's of his brin^ bc'yond sea, and coming
from beyond sea^: I would not mention any
• In the * Western Martyrolotfy' is fjiven
the following account of Mr. lid. Nelthorp :
'* His name is often enough met with in
West's and Rumsoy's plot, and^ood reason tr>o,
he being not near to answer for himself. As to
what he was accused, out-Iawed, and e.XiH.^uled
frr, his being conccrued in a design for the as-
sassiualiun of the king and duke, he solemnly
avci's ;^ may be seen bblowin his speech, [TUnt
he uas ahvuys highly against it, and detesti-d
any such thing, uas never in the least cou-
cerued in it, neither in purse or person ; never
knew of any arms bought for that intent, nor
did b<'Ueve there was any such design,1
■ be more ^uU and
Thau
v.hieli, what uords could
katl-.rantoryi* lie went away in the heat of
i'.\ f.arir:(, and returned with the duke of Mon-
iuouth, tl;in:.ii;g it his duty as he says, to
hazard hi : life for the preservation of the Pro-
testant religion and PLnglish liberties ; but as
to the duke of Monmouth*s being declared
king, he was vholly passive in it. Hp was at
first committed to Salisbury prison, where he
had sevrnil disputes with a learned and good
man, whose opinion then differed from his,
concerning the lawfulness of defending our-
sclvts by arms against illegal violence, which
was his firm judgment. Thence he was
brought to Ix)ndonaijd imprisoned in Newgate.
He rejected there, with scorn, some offers made
bim of saving his own fife by taking away other
mens ; and though he was under Inexpressible
trouble during bis close confinement there,
ivhich at length arose to distraction, and the im-
pair of his reason ; vet it is remarkable that he,
AS Bateman before hinn^ before he came to die,
Mer WDteoce^ wiirSrj'ctlak and liyely aglun,
such thing as any piece of evidence to influeooe
this ca$e,l)Ut I could not but tremble to t^ink^
after what i knew, that any one should dare so
much to nrevaricate with God and man, as to
tell such horrid Ives in the face of a court.
the entire exercise <jf his judgment and under-
standing iMurning, with more joy and comfort
than he had lielbrt! pain and misery. Ue writ
one letter to his pa rents, another to his cliildren,
here inserted, together with his last speech at
his execution the 30th of Oct. 1685. At 3 in
the morning he wrote the letter to his parents,
&c.
** Wheroin he sjieaks much of bis brother,
and fellow -sufferer, Mr. Ayloff, if 1 mistake
not, whom he says, [He could embrace with
more joy in the field of suffering', than ever he
coidd have done had hp met him ia the fieM
crowned \>ith victory and laurels.]"
The same book contains some letters writleB
by him shortly bplbre. his executiou, aodalso
his last Speech as fbUows :
'* The great and inexpressible trouble and
di&tr.tction 1 have l:eeu under since f came inta
trouble, espcciall V since my close confineineDt
in Newgate, hath so broken my reasoo, that
for many weeks last past, till the day mj sen-
tence was passed, I nave not bad aoir com-
posure of mind, and have be«» unaer tl^
greatest trouble imaginable : since my dearest
wife hath had the favour granted her OKrooniiu^
to sec me, I am at present under great com-
posedness of mind, through the iufinite good-
ness of the Lonl. As to what I stand out-
lawed for, and am now sentenced to die, I eoa
with comfort appeal to the great Godt befora
V. liose tribunal 1 am to appear, that what I
did was in the simplicity of my heart, witboal
set^king any private ad\antage to ray sell') bat
thinking it my duty to hazard my life for tha
prcsor\ation of tin' Protestant reU^on aod
Kngiish liberties, w hich I tbougb.t invaded, and
both in groat danger of being lost. As to the
design of assassinating the late king, or hb
prt>»ent majesty, it always was a thing highly
against my judgment, uud which I always de-
tested ; and I was never in the ieast oonoenied
in it, neither in the purse nor person, nor i
knew of any arms brought for that intent, i
did I believe there was any such design, ore
hear of any disappointment in such an affidf,
or time, or place, save what after the ditcoveiT
of the general design, Mr. West spoke of, as&
arms bought by him : and as to myself, I waf
in tlie Nortli when the late king was at New-
market, and the first news I had of the fin^
was at Beverly in Yorkshire. As to my oon-
ing over with the late duke of Monmouth,, h
was in prosecution of the isame ends; bnt the
Lord in his holy and wise Providence httthbeefe
pleased to blast all our undertakings ; tho^gd
there seemed to be a very unanimous and TOJimp
spirit in all those tliat came from beyond tt^
seas ; Arfd as to the duke of Monmouth** I
declared king, I waa wholly passire in it, t i
Vunne. Wlifii does voitr lorfkKip n^k in<? ?
L, C» J. CJotne, I unll nsk tlite a pl^iin que«*
tian ; h a!& tli«rc no iljitcourKe tht^re abtiiii the
baUle, and c»f iheir l>eing m ihr nrniv *
Ihinnc. There was some «ucli dUrourse, my
lonl.
X. C. X Ay, prithee n6tr tell ui wh«t tli&t
Dunne. My lord, I i^iU It'll you, wlien I
Imve rccollecied it, if you will give tne lime
til] tO'tnumixv morning*
L. C^ J* Nay* l>iJi we cannot stAy io lonjor,
our business must be flispatcbed now ; but I
tvould have all people cotisitler what a reason
having hern prrsrnt at uny public dclmle of thnt
alTtiti% ami duKilJ nerer h^ive ailvi^tnl it, hat
riUMjilninedof il to roloiu-l Holmes, jioil cnpiain
ViiU ijct. I hefK^vetbe lord Gray nxn\ Mr, F
the tlitef prutuolertiof it, A ' '^ ' ' mptation
4>f being mi fviik'itce, anil f> i!ier in la
Irouhk or dautyor ttic me,k.., .,. ,-.,>utif>f his
lite, upon the account for which 1 jiuftVr, I al-
Hays abhorrtHl nntl «1ete»leiJ the thoughtf of it,
both when in ami out of dan^jct', anci aflii^cil
aome very sironjrl^' Bsrnin!it it, f»xrept when
nntler my dif traction ui prisfin, that amongst
Other teuipttitions ditl violently atsauli me ;
but tlirouji^k the goodnrss of my dearest God
and Folher, 1 wa* prestrveil from if, and in-
deed uoB whuHy incupahle, and could never
receive the I wi "it shadow of conilbrl from it, but
thought death more eligible, ami ^uh iome
lime afore, oot of my di^ructed and disfjnicted
--■*:: on, wholly tree from it ; though uot
.: €\ihcr icmplations fur more crintmni in
» .J ,,..., I hJcBS the Father iif all Mtr-
ill Consolations, that I find a
- _ _, :!5 of mv wiM Io hi*;, fnfdin^
inrtnufely more oomfort in dt^th, thf\n v\ev i
could pbt^ in life, though in a condition that
mif(ht s^em hanour>»hle ; every hour weing"
the will of Co4l in ordc^rine thiK aflair tt?r»re and
inore clenrcil up to me. Uod halli given, God
hath tnkon. Messed be his holy name, that hath
'" ;o be willing' to uiifTtr, rather than
I ruy hand to ini(|uiiy, or to say a
roiiKtjeracy with those that do «o, J am
heartily and sinccn»ly 'troubled for whnt hath
!):r * ' *' " ■ '■* es bt'ing" lo*st, nnd
III s ruino<l ; ihr Lord
fuii. ..; ::^'n in it. He in his
woniferful hath made mc and
otlnTs ffiin rumcnts, not only for
wl I frut, but, I brhrvc, for
li.i ^rcat work he hath to do
in Ih* lis 5 V here by he will try and
|fUf«^ ' , and wiijuoV the chafl'from
tb tbt tiord keep those that are hi«»
fn llicrnd,
• I i?;r jn iliMM ^ ^" ■ ■ ' nnd
ran readily and li u^jsi
eticrni*^, even tli r^ i rc»
Hfffiinst me : and t m .ir-
don "* -•' •• -• ' 1 -"
J""
i^ tliat ll»py fihoold i
me 1(1 bejirty pruycra to A I *
sin of l)ii ' uisij mur hi' I n.j at
thy door. ihuu »* I^rithee tell u»
wfuil ^be liihi -nusL X ,!>».
Dttnne, My )*"rd, tliey did talk of fighting,
but 1 cannot exactly tell what the dli^courke
was.
L. C. X Anif thou saidst thou didst rut and
drink witli them in the m\up room ?
Dunne, I did so, my lord, 1 confess k.
L. C,J. And it was not a little ^irl tlial
lighted thee to bed, or conducted thee in?
Dunne. It was not a little girh
for tlrat my beinj?;' succoured there one night
with Mr. Ilickv, brought that worthy ludv to
RUtTer death : I was ^Ijolly a strfln;;;er to her
fudyfthip, and came wiih Mr. Hicks ; neither
did she (as I verily believe) know who I was,
or my uame, till I was taken : And if any
other have come to any loss or trouble, 1 hum-
bly beg' their panic n '; and \rme I in a condi*
tion, I would, as far as I was able, make
them a requit&L " j
** Aa to my faith, I neither look nor h6pe for
mercy, but only in the free grace of God, by
I he a ]>pti cation of f lie blood of J»*siis, luy dear-
est and only Saviour to n»yr [ il %oul.
My distresses have been cxci i .; fislo
my eternal state, but throng-h the uiUtiiu^ j^t>od-
ncs!» of God, tbougfti 1 have many sins to an-
swer for, yet I hope and trust, as to my par-
ticular, that Christ came for this very end and
purpose, to relieve the oppressed, and to be a
jdiyKirian to the sick. 1 come unto thee, O
hIcHsed Jesus ; refuse me not, but uiishmein
thine own blood, and then p rets cot nie to tby
Father as righteous; What the ufl: n>\ ''i's
t>c as crimson, and of a scarlet dy i
canst make them as white us snow'. 1 -^
in myself but what must utterly ruin and cou-
demn me, J cannot answer for one action of
my whole fife^ but 1 east myself wholly upon
thee, who art the fountain id* mercy, iuwboni
God is reconciling himself to the world, ilie
greatest of sins and sinners may tind an alKsuf- f
nciency in tliy blood to cleanse them IVom all
sin. O dearest Father of mercy, look upoti
me as righteous in and through* the im(»uteii
righteousness of thy >Jon ; he payed tht; cicbt
by his own offerinn^ up himself ior «-'i'v ' ' fo
that thy justice is f^atisficJ, and id s
magnitied. Grant me thy lore, O i:. i-
ther, assist me, nnd slund by lof lii tijr nc^i-d-
ful hour of death, give thy onvfeU clunr^c over
m}^ poor soul, that the evil one may ro»t touch
nor Imrl it. Defend me from hi'? power, ,dc-
hfcr ine from ho* rnjje, and r iuto
thine eternal kin^^dom^ m )i the
alone merits oin»Y*l " horn
I praine I hoc ; in t and
Holy Spirit, be nscMmu un L;i'»iji, riotiour,
power, mifjht, and dominion for ever and for
fny spirit,
It.NEl/.
ive my spirit, Amrir.
LTHOKis"
359]
1 JAMES n.
Trial of the Lady Alice Lisle,
[360
X. C. J. Wbo was it then?
Dunne, It was Mr. Carpenter, mv lord.
L, C. J. And why didst thou tell so many
lyes then? Jesu Clod! that we should live to
see any such creatures amon^ mankind, nay,
and among us too, to the shame and reproach
be it spoken of our nation and religion : is this
that that is called Uie Protestant religion, a
thing 80 much boasted of, and pretended to ?
we hare beard a great deal of clamour against
Popery and dispensations ; what dispensations,
pray, does the Protestant religion give for such
practices as tliese? I uity thee with all my
Boul, and pray for thee, nut it cannot but make
all mankmd (o tremble and be filled with
horror, that such a wretched creature should
live ufion the earth : Prithee be free, and tell us
what discourse there was.
Dunne, My lord, they did talk of fighting,
bat I cannot rr member what it was.
X. C. J. Did you lie with them ?
Dunnct No, my lord, I did not.
£. C. J. Well, I se" thou wilt answer no-
thins; ingenuouslyt therdure I will trouble my •
self no mure with thee: go on with your evi-
dence, gentlemen.
Mr. Jennings. My lord, we have done, wo
have no more witnesses.
L. C, J. llien you that are for the prisoner
at the bar, now is your time to make your de-
fence; you hear what is charged upon yon,
and what a kind of shuffling here has been to
stifle ;the truth ; and I am sorry to find the
occasion to s\uaak it, that under the figure and
form of religion, such practices should be car«
lied on. What have vou to say for yourself ?
Mrs. Lisle. My lord, that wluch I nave to say
to it, is this : I knew of nobody 's coming to my
house but Mr. Hicks, and ibr him 1 was in-
formed that he did abscond, by reason of war*
rants that were out against him for preaching
in private meetings, but 1 never heard that he
was in the army, nor that Nelthorp was to come
with him ; and for tliat reason it was, that 1
sent to him to come by night : but for the other
man, Nelthoi-p, I never knew it was Nelthorp,
] could die upon it, nor did not know what
name he had, tdl after he came into my house ;
but as for Mr. Ilicks, I did not in the least sus-
pect him to have been in the army, being a
Presbyterian minister, that used to preach, and
not to fight
X. C. J. But I will tell you, there is not one
of those lying, sniveling, cantin;; Presbyterian
rascals, but one way or other had a hand in the
late horrid conspiracy and rebellion ; upon my
conscience 1 believe it, and would have been as
deep in the actual rebellion, had it had any
little success, as that other fellow Hicks ; their
principles carry them to it ; PiTsbytery has all
manner of villainy in it, notbiug but Presbytery
could lead that fellow Dunne to tell so many
lies as he ho . here told ; for shew me a Pres-
byterian, and 1 will engage to shew a lying
knave. •
Mrs. Xit/e. My lord, I abhorred both thepria-
d pracuca of the late rebeUion.
X. C. J. I am sure you bad great rcaioii
for it.
Mrs. Lisle. Besides, my U>rd, I should have
been the most ungrateful person liTing, should I
bsTe been disloyal, or acted any thing ■gMMl
the present king, considering how much 1 Wii
oblhj^ed to him for my estate.
X. C. J. Oh then'l Ungrateful! Ungratefbl
adds to the load which was between man and
man, and is the basest crime that any otte can
be guilty of.
Mrs. Lisle^ My lord, had I been tritid in Lmh
don I could have had <ny lady ^bergavennTt
and several other persons of quality, that couM
have testified how much I was against this le-
bellion, aud with what detestation I spate
against it, during the time of it ; for I waa aD
that time at London, and staid there till ate
the duke of Monmouth was beheaded; ttaiif
I bad certainly known the time of myr trial in
the country, I rould have had the testimoayaf
those persons of honour for me. But, my wtij
I am told, aud so 1 thought it would have been,
that I should not have been tried na a traitor
for harbouring him, tUl he was convict for a
traitor. My lord, 1 would take my death of it,
that I never knew of Nelthorp's coming, nor
any thing of his being Neltborp ; I never askeil
his name, and if he had told it me, I had then
remembered the proclamation. I do assnrs
you, my lord, for my own |mrt, I did abbor
those that were in that horrid plot and con-
spiracy against the king*s life; 1 know my
duty to my king better, and have alwaya ejnr-
cised it ; I defy any body in the vvorld thai ever
knew the contrary, to come to give testimooy.
X. C. X Have you any more to say ?
Mrs. Lisle. As to what they say of my denying
Ncltliorp to be in my house, I was in greatofan-
stcrnation and fear of the soldiers, who were
very rude and violent, and could notbereatrain-
ed by their officers from robbery, and plunder-
ing iny house. And I beseech your lordship
to make that construction of it ; and 1 Iiumlily
beg of your lordship not to harbour an ill opi-
nion of me, because of those false reports wti
go about of me, relating to my carriage towards
the old king, that 1 was any ways conadrtias
to the death of king Charles 1,'for, my hM|
that is as false as God is true ; my lord, I was
not out of my chamlter all the day, in #hieb
that king was beheaded, and I beliere I dbed
more tears for him, than any woman then liv-
ing did ; and this the late counteas of Mon-
mouth, and my lady Marlborough, and mykri
chancellor Hyde, if they were alive, and
twenty persons of the most eminent jqoalilv,
could bear witness for me. And I do n»cal it,
my lord, as 1 hope to attain salvation, I neror
did know Nelthorp, nor never did see hin be-
fore in my life, nor did I know of any body*^
coming, but Mr. Hicks, and him I didknowls
be a nonconformist minister ; and there being;
as is well known, warrants out to apprehendiQ
nonconformist ministers, I was willing t» gifs
him shelter from these warrants. I waa <
down but that week into the country',
t1 I » me n-om Mr, Hicks, tn know
It ereiveil at tny house; and I
t« ii. Hicks f>leaieu,henjifi;lit come
»s hiy iti the eirciiing, and ntiould be
\^i-..;.i,.- . lint v*iiha! I told Tiim, I must go
away I lie Momluv following from thai [»bce,
but while 1 at'iid I wntiltl cntertutn him. And
1 beseech vour lonkliij* to believe* 1 \if\d no in*
I^Dtion to harbour him b(U u^ a nonconfoiirtistf
and that I knew was no treason i It cannot be
ttii;(t(ineii, lJ»at I would venture tlie hazard of
V» y own life, and the min btjth of myself and
chiJdrt*n» to conceal one that I never knew in
my lite, as I did not kti<»w Mr. Neltliorp, bat
had heard of him in the proclamation. And
tor what whiteheailed man ifiat speaks of my
denyui:,'' Ihcm, as 1 «aid l>tfore» he wau one of
tliem iliat rided und phrndt^reil my house^ and
tore open my trunk ; and if 1 should not lie
cunvicted, lie and the rest of them may be
caUed to an account for what ihcy did, for they
ought not to have meddled with my goods:
Beaidci;, my lord, 1 hare a witness ti»at can
testify what Mr. Nelthorp said, when he was
exainincil before
L> C, J. Look you, Mrs. IJ«jle, that will sig*
nify litlk' ; but if you have any witnesses, call
thetn, we will hetir whatthey stty : Who is that
ma.n you speak of ?
Liite, (Jeo?ge Creer] his name is ; there he Ls.
L, C* /. V$ ell, what do you knotv ?
Creed, I heard Nelthorp say, that my lady
Liale did not know of his coming, nor dirl not
know bis tiame, nor bad he ever told his name,
till be named himself to col. Penruddock, when
he was taken.
t, C. X Well, this is nothing ; she is not in*
dieted ibr harbouriog Nelthorp, but Uicks :
Have you any more witnesses ?
Mm, Liile. No, my lord,
L. C, J, Haveyouany moreto ssy forj'oor-
aelf ?
Mrs. LUle. Mv lord, T came but five days
beforu this into tne country —
L, C. J, S;%y, 1 cannot fell wbcQ you came
•nto tiu *v. nor [ do not cafe*, it seems
y cm ca I loug^h to harbour rebela.
Mrs. j.isrc. 1 staid ui London till all the vebel-
Ibn \>ju» past and over; and 1 never uttered a good
word ft>r f ht •'-'", - ir ever harknirtM] so much
a^agood ^^ m in niy minil: I know
the king it m, . . ^i^'""* an<l 1 know my dury
l<» him ; and if 1 would have venturcii my lite
for any thing, it should have been to serve him,
I know it is his duc^ and 1 owe^l all 1 lind in the
world to him : [l*it tliough I coidd not lly hi for
Lini my»df, my son did ; he was nctuiilly in
arms on the king's side iu this business ; 1 in-
structed him always m loyallVi and r^eut him
tliiiber; it was 1 that bred him up lo %ht
tor the king.
/., C, J. Wril, have you done?
Mis. XtVf, V
i.. C. J. Hav.
Tt.?-Mr- '
iX, C J.
I done b} |:. v^
4
d.
id totay any thing
y brd.
1 ailcnce* [Which
Liifi. My lord, may 1 ^»eak WWWS more ?
My lord, I l»CJifcch vou atlutd me your patience
and your adHtie ; iveinsliam» vfheie Mr. Ilicka
19 said to be in armfl, does not lie in this county.
L. C J. That is nothing: But the treason
you cotninilted was in this county.
Mrs. Liile, But I assure your lordship I never
knew he was in the arm y ; and for any talk or
discourse in private, auout his or Nel thorp's
t»eing there, 1 never heard any ; indeetl one of
them aiiked me, whether the duke of Monmouth
was beheaded ? And 1 told them, yes, for so be
was before I came out of town : And that 19 all
the discourse that I can remember, wherein he
is concerned r
L. C. J, Well, have you any more to saj
now ?^Mrs. Litle. No, my lord,
L, C, X Then, gentlemen of the jury :
This is a case of very great example, and
withal of very great weight and moment ;
wherein the interest of the public, and the life
of a person of quality and toitune are put into
your hands. And the great business which
nas detained both us and you so long, haa
been an endeavour (if it were possihle) to find
out the truth : which indeed is the business of
all enquiries of tliis nature : we ait not here,
nor are vou there upon any other ernuid ; aor
is any thing desired by the court, or required
of you, but that the truth may be made mani-
fest. 'Tis that you arc bound to, by the uathf
you have taken m this service ; anu in that in-
nuiry you are to be guided by the evideace
that has here t>eeo given forth unto you ; for
your oath is, ' That you shall Well and truly
' tiy, and tru» deliverance make, between our
* sovereign loiil the king and the prisoner at
* the bar, according to your evideocc, ns you
* !th:dl answer it to God/ So tliat, gentlemen,
thi« oath of yours, being your diiertion what
is your duty, and you bemg all persons of ^ua-
hty and reputation in your country, meu of
great understanding and known integrity, it i*
to be hoped, that not any tiling can moveyou^
eitbcr to compassion of the prisoner on the one
band, or her allt^tions and protestations of in-
nocence; nor, on theotlier baud, to be in<»
ftuonced by any thing thing that comes from
the court, or is insinuated by the leamc^l couu-
ne\ at the bar : but that you will entirely con*
sider what evidence has been given to yoo,
and beln^ guided by that evidence alone, you
that arc Judges of the fact, will let us knovv*the
truth of that fact, by a sincere and upright
verdict.
And inasmuch, gentlemen , as the evidence
has been long iu giving (though the substantial
part of it, perhaps, be in a narrow compass) I
wilt repeat it to you, as near as 1 can, nith all
faithfulness and int4.^ity, aa I shall answer it
to the Great Juilge of heaven and earth, before
whom you, and we, and all must stand to Ik*
judgwl ; wiUmut m\y agjfravatioo or alteration
on the tuic iiidt>, and \vitliuut any omission 011
theoihiT: and I shall do it, purely to help
y^ir mcmcntes who are to determine the fact ;
and I do pray and adjure, that you would do
363]
IJAMES ir.
Trial of the Ladif Alice Lisle,
[364
equally, accord iug to the trust reposed io vou,
and .ir*conlii)t,r tci the oath that you have taken.
And 1 would repeat it once more, that you are
not tu be led by auy insinuatiotib of the pri-
soner, nor by any allegations from the learned
roims<'l, whose business it is to open the fact ;
but that fact so opened, is no further to guide
yon in ytmr enquiry than as it is prored.
Cicntienicii. l»efore 1 come to the particular
r\idrncc of this fact, f most crave leave to say
siinKthing oi'a matter in general that is very
ltd! known. It was very well observed by
thut learned cfentleman that opened the cause
at the be^innfng, that \vc are all of us here un-
spcnkalily obliged to bless the great God of
Letven, the Father of mercies, aud praised for
ever bv> Iiis holy name, for his infinite goodness
in preserving and protecting us from the im-
minent ruin which the late horrid and detest-
able rebellion won Id (had it succeeded) have
inevitably brought tipon us; had not he of his
ou n infinite mercy and gracious goodness pro-
tected and delivered us from our enemies, tlicy
had undoubtedly swallowed us up quick : but
as the attempts of our enemies were very mali-
cious, so the preservation and deliverance of
our good God was very great and signal.
And we have reason to bless that great God
for many deliverances he has been pleased to
give us : we are by no means to forget his
mercy Howards our late sovereign of blessed
mtmiM'y, and with him towards us, when he
brought him out of exile and bondage, and us
out of that state of confusion and misei'y,
which our country had for many years groaned
tinder : when all religion as well as sovereignty,
and all obedience, duty and deference to supe-
riors were quite lost, uod of his infinite mercy,
and of his own most sracious bountiful dispo-
sition brought our blessed sovereign (now in
lieaven), and his gracion<3 majesty that now
reipis, and all the royal family, afW a long
and tedious rebellion, into a quiet and peace-
able possession of their undoubted rights and
inlmilances, nnil with him restored to us our
religion, the best of religions, the true Pro-
testrint reformed religion, the religion esta-
blished by law, which now is, and 1 hope will
ever remain established among us, as now
{jrofessed and practised in the Ciiurch of Eng-
and : and when we reflect on tliat deliverance,
we are to this circumstance to iieiu^hten both
our admiration and our gratitude, that it was
broiighl about without the least drop of Mood-
shed, l»v a niiraeulous Providence, and by the
strength of an Almighty arm.
Besides, gentlemen, we cannot he sufficiently
thankful to our God for the mercies we en-
joyed under that blessed king ; for we are to
consider we lived in all the affluence of peace
and plenty ; \»e safel}' and uninterruptedly en-
joyed our^relipion, the greatest blessing on this
side iminortalily ; our lives, liberties, and pro-
perties in%iolalily were secured; every man
safe under the shadow of his own vine, aud eat
the fruit of his own labour; and while our
ueiglibours suffered the calamities of war, we
were surrounded with all the blessings of peace,
and slept securely under the government of a
gracious and merciful king : every one of na
had even what our own hearts could desire,
and if we wanted any thing, it could he only
thankful and dutiful hearts to our God and our
firince, during whose Hie we continued in a
lappy state and condition.
Liui it having pleased God, the King of
kings, the great Kuler both of heaven and
eartii, to take that blessed prince to himself,
what tlianks ought we to pay him for his gra-
cious goodness, in leaving to great and so glo-
rious a successor as his royal brotlier, our pre-
sent sovereign, whom I pray Almighty God
may long live and happily reign among us !
This gracious prince, hs soon as ever he came
to the possession of his undoubted right and
inheritance, U})on his brother's death, in the
imjierial cnnvn of this realm, to entitle himself
to the good opinion of his people, and to enjgage
them to the expression of that duty which the
Christian religion, and I am sure particularly
the rcligirm of the true Church of England
does oblige all its followers to ; what does be?
l^ven before he was asked, iu the very first'
minutes of his reign, he begins with liouuty to
his subjects, and declares his resolution to pre-
serve them safe in their dearest and most pre-
cious enjoyments, in their religion ; .and not
only in that, but in the laws, liberties, righu
and properties, with the most inviolable secu-
rity to their lives, and all that is dear itnto
them : and tliis gracious declaration came from
his royal mouth without any solicitation or any
inducement, save only the generous and gra-
cious inclination of liis own m.yal heart: and
to give it the greater edge, to the honour of
the Church of England's religion be it spoken,
he was pleased to tell what opinion he nad of
our religion and its true professors, that they
were tKe true friends and faithful supporteim
of the government ; an opinion which I hope
every honi«tChurch-of-Enghnd-man will en-
deavour to cherish by a suitable practice of
what is certainly the dfoctrine of that religiooy
loyalty and obedience.
But alas ! withont horror and confusion, we
cannot but remember, that instead of making
good returns of respect and duty to so gracioiis
1^ sovereign for his great bounty, faction and
sedition, hypocrisy and malice had besotted
and bewitched a great part of his subjects, and
corrupted, blitideil, and bigottod them to such
an height of impiety, Iftiat a rcl>eUion must be-
gin his reign, and all the poisonous arts of dis-
obedience are made use of to instigate the king's
subjects, with all the rancour and vengeance
in the world to rise against him.
Blessed God ! What is the way that this
devil 4)f sedition comes to bewitch people ta
such a height, when Almighty God had so
lately delivered us from the misery and con-
fusion of a civil war ? It is that way surdy, we
find it but too plain, which he 'had always
found very successful, the pretence of sai~^
ship, conscience, and that glorious name,
385] Jbrirlgi
hglon. What reUffiOn enn it he ? The Chm-
ttaii religion \ru\ iI»t< f'^rnv of its grc^ilrukr ;
• RprMltr lu A thai are Ctesur^a,
• and la f tin: i arc Go<rs/ But
thc<e men OLta:* tliau;;h that were not scn\t-
turc, whi-'n yet jirotHnmireil by our blrvscd
L ' ' " ' 'fh joined ill One !»eritence
%<. , und ihey will hardly
;iiL in Efi iiL^t vhat vebclUoti is the sin
uitchrmft, lh*>iiy:h the striplures have di-
tty givi'ii it ihat character. Guod God 1
tbai'i^r shouhl live to such an atje ; when
inca cun cull God to ussi<9t and protect them in
u rebellion : lor not to reflect upon what was
done in former timet, it tn late enough for us
to riimiTiilMir, hut not without hon'or, that raen
have been tyetl by all the bonds and coutraets
bell coiifd inrerit* in a combiaatiou and con*
fed#»n»rv to mur*JerhoHi the ialc king^ and his
•t'Sty, and all this while this must
1 with the name of reii^^on, 8o
t. rer by the law of
Ht the first precept
I .mmxi'M t nj"ujt d, not to sbcd in*
noccut blood, t»fiall yet bo a saint for an assas-
aination upoti the account of religion , and this
•halt be accounted a plou9 eau»e to obtain
hcaren.
Who did these miscreants, that were justly
by taw condeoinetl for that barbarous cuu*
•piracy, whfn tliey came lo die» in locate f
The great God, to UfSttfv for them, Uiat they
died for the sake of rellijion. When they
come to suffer for treason, they ran bless Gad
1 ! »r the honour he does them in dying
iL , and call ihetnselves martyrs for it.
>a>, ji IS not ^ strange anil horrid,
that some mt!n,. ctusekes rainisters
vt '' — not, shall vr.nTir tu be hell- wethers of
r id cry out they are fighting the
L . . . ...ai^, when they are aUemptiog to kilt
ibe Lor* rs anointed f
Jesus God ! that «rer we should ha^e such
a ji^eneratiozi of finers among its, that can
jjltmge iheroijekcs into the most horrid im-
pieties, and yet think to escape confusion here^
sod ourcbasc a crown of glory hereafter !
When we considex, gentlemen, the Ting-
leader of this late rebellion, the center of all
our Irouhte^ the arch^rebc^l and traitor Mon-
moutli I meant should arrive to such an height
of im} 1 '
■ "
i>i to bless God that
he coil
reflect upon a two
y- '
• : but how ? In
li:
-s ; nor can it
\lt ^|, .„^ t,, ...v.,
*r»'"^ ^"
....... .til inexpressible
bortor.
Alm-k! jrr^oth
•ini!i vv
lu'ti \vr> find relijorion
made use rjt
for such
imniou^ pr
11 occasion
i;
» ihmk lis A 1 heists. The very
Tm
't-*, nnd
fniT-inr detest us, as
thv »u«*U r
'lo in the
world 1 wh'
3 dnty to
J ■
"tier,
if^;
wn llrjugtilf
k
ot*, and n^crso much as name, fntich
without horror and cod fusion.
Gerillcmea, I do not spctik this forthetak*
of speaking, hut I would f»in i It'll ver my own
M)ul and } ours from havii njiuch
horrible impieties, aniUh^' ^ir ab-
horrence of them, by pntdici -
sd vv*> to he coemi^ to those h y [
conformist parsons ; I mean,tlt x^ p. \
pure religion to t»e their great nu
nuil throu-^'h a scrupulosity of c .... .^^
cannot conform to that devency and duly
whirh is n^iiuiretl of them in the church j hut
yet norse, cun kill or ba the occasion
of n 1 ten thousand people, m in th#
conscipK?iK^ of this late rebellion [perhaps it
may prove. For do but conskler how many
families by this means are utterly ruined, how
many innocent baiics star^'ed, or txposed to
the utmost penury and want ; how njauy
widows left in a distressed desolate conditiuii|
destitute of all manner of provision and main-
tenance ; and all this by the in^ligation of
these villains tliat hare preached imd prayi-d
them itito it, gilding the bait that had dmvvn
them into it, by the specious pretence ot re-
ligion and conscience !
ConsidtT, gentlemen, this is that which hai
Imiught this poor unfortunate gentlewoman^
the prisoner at the bar, into this deplorable con-
ditiou : What could prevail upou her to r««u
such a hazard as this, but only her affecrion and
deluded zeal for that wretch, that had nothing
but the name of religion ; Ibr his soul is blacker
in the eyes of God, and the thoughts of all ho-
nest roan, tlmn ever bis coat was ? You see hjr
the proofs what au impudent uusanctitied vil-
lain he was ; for when these gentlemen itral
have ^iven evidence, were in the costodj
and tuider the power of the rel>eU, he
must tempt and provoke them to leave off
and IbrsaLc tbrir duty to their natural lord
and lawful soveix-ign the king, whom God
had set over iheni, and submit to uq
usurper, a king of thoir own making ; and
such a king too, that 1 dare boldly affirm, the
roeaii est subject within the kingdom that is le-
gitimate, has a better title to the crown « than
he had; and this all under the pretence of re-
ligion, and the Protestant religion too ! And
that same prince of theirs must have the title
of a Protestant prince ; and an excellent Pro-
testant he lived and died, living in the open vio-
lation of the law of God, and in majiift^ re-
bellion against his lawful sovereign : and he
died without any remorse tor eitlicr, boasiin^^
of his own wii kedni^s beyond the hounds of
common mo<lesty and humanity.
G'eutlemen, let us all join iu hearty prayers
to our God, the God of infinite mercy, thst at
he has yet once more delivered our sov<n*eign,
aud us with him, out of thejaws of these lions
and ravenous wolves; so be would still please
to preiierve him and us from the hands of all
our et^etiiies ♦ and I pray God it may havt: thai
good ctlHt upon all of li^ as to niaKe us more
cttTcful and oouncivitioiis in our duty to kiiD,
Trii
367] 1 JAMES n.
and bis vicl^gerent ihe Vrn^* To litm idoiie
most all theglorv be ascribecl ; li was not our
Lands or ^m\^ oV tfie kiu^, tliat i.'0uld Imve
»a*n! or pvutecled u?, luul not llie s|H'ciftl
intcrpositioo of ibe Divine Power undgtiuduesi
Fro*igUt this dt'liverance for us.
But now 4 gPiiUciueo, la come to the parti -
c liere before you ; and ibe fact, upon
rire, stainds tbuss : ft is very notorious
ims iciiuvv Hli'ks wasaclLmlly in ttiis rel>etlion ;
y *m bare it swoni by ibree ifeTeral persons tbat
saw bim, ami they (lartit-ulqri/t^d to you sucli
tokens of tbeir knowJedg^c and remerabrance,
that sure, if^iny tbingcan, must make bimblusb
lit ibe repelilioii oAbem ; for tbey tell you,
wben tbey were in prison be would* have cor-
ropted tbcm frora ibeir duty ; and yesterday
tbey saw brm in prison, and upon discourse oF
some circumstances, be could aot deny but be
'Haa tbere.
Tbisperson, Mrs. Lisle, the prisoner at t be
bar, sbe is accused tor re<;eiviog and barbourLng
ibis person : And* gentlemen, 1 must tell you
for law, of wbicb we arc tbe judges, and not
you, Tbat if any person be in actual rebeSlioo
against tbe kin^« and another person (who
realty and actually was not in rebellion) doe*
receive, barbour, comfort aod conceal him that
was Bucb^ a receiver is as much a traitor* as be
Who indeed bore arms: We art bound by our
oatlis and consciences, to deliver and declare to
you what is law ; and you are bound, by your
oaths and consciences, to deliver and declare to
lu, by your verdict, the trutli of the fact*
Gentlemen, that he was there in rebellion, is
undeniably and unquestionably proved : That
tbere are sufficient testimonies to satisfy you
tbut tills woman did receive and harbour hlui,
* is that which is left to your consideration ; and,
for that, tbe proofs he thus ; And truly i am
porry to have occasion for repeating tnc cir-
cumstances of the proof ; 1 mean, th« great
art tbat has been used to conceal it \ how diffi-
cult a thing it was to come at it ; what time
lias been spent in endeavouring to fiiut out
truth in a fellow, tbat in defian:^ of all ad-
mOQition, ibreats and persuasion, would pre-
Taricate and sbutfle lu conceal tbat truth ; nay,
tie and forswear himself to contradict it. But
out of true Christian charity, as L told him, m
I tell TOO I do heartily pray, and all goodCbrb*
ti^is 1 hope will join with* me in it, to the God
of in^nite mei-cy that be would bare mercy
Upon bis sonl, u|X)n wbicb be hath cantractetl
so gtcat a guilt by the impuilence of his be*
haviour, arid pertinacious obstinacy in those
^shoods which he hath made use of in
tbis case.
fjr- tf'^r- '^r I woubl willingly forget all bis
pT€i , but I must take notice of
thciii, *i, .l.iut, to come to the truth. First,
hu «ius, be catne upon an errand from a
1, be know** notv^liunu. to riiv liidv Llsle's
Bar-
Hjj befp
iiicU,^bo dc'
TUfin^he asks
hou^ ;
the question, whether Hicks h&d been in
nrniy ; uad he Md her be did not know ;
he s» cars now be did not : But at last it
ont, that it was to entertain Hicks and ui
person j but it should seem that other
was not naTued ; and Barter tells you that
and anolherperBon (who afterwards proviid
Nellb<irp,ar<- ir- m ■,,;-,-: t ■-'■■■ <-:i^. , i ! i.
derfd tu coi
liax.'ku sird ami njnnrri
dence, dt nyiu^ what li
ed, that be saw any bod v •.-* .^i^iei* a i,iu<i ^ij i
lie pulled down the hay out oi' the rack ft
horse ; that be eat any thing but c^k
cheese tbat be brought with him fVoni h<
tbat he was ever made to drink, or to 4
drink in tbe house, or ever meildted or m&il
with any body in tbe hovise : At biiit we
told that Carpenter met with him ; and '^
out with a bintboru and candle, took
bis horse, carried him Into the room
Hicks and Neltborp were, and the pris«)iier at
the bar, Mrs. Lisle ; there tbey all su[»pi'>d to-
gether ; theine tbey fell into discourse ; tbern
NeUhorp's name was named, anl t*, Mikod
of being in tbe army, aod or' tbe id so
it is all come out, and makes Sk ia'a mid po*-
sitive evidence. ^
But then suppose tbere was no more ibta
the other evideiice, and that the fellow remain
in an hard hearted obstinacy, then vo« are ti|
consider tbe circumstatioe^ fuml I
evidence* that this was aftt u.ii
all over; for it seems dnriri
was in London, and it was not
the King's forces were inpursiiif
and this without any positive fn
in itsell' a sul^cient testimony to conv iocc
considerate person, that she wai« t*> c
those sbe ought not to conceal ; becai]
directed the particular time wherein
should come, and tbat was at iii^'' * -^
prudent pensoti would receive *»ii
night, and give such directions n, ^^u-i* <
son witliout some pxtraordiuary i^itiund
When they came tbere, she prv>vidi;il a 6)
for them^ and you sec wbJtt cai*e is I
tbat the woman only is permitted to brin;^
supper to the dour, and tlie husband must
on the table; no boily is permitted to \
there but be. Worts of d^kl»«ss alwa;
sire to be in the dark i works of rebelli
such )ik£ iU'Cf never done in tbe ligbL
But then comes that honest fdlow Barter
call him so because be appears so to be, and ]
ought to be remembered with a great renutck
for bis honesty), he tells you, he conducted
to the bouse, and what discourse naased i ,
in his hearing. The prisoner ask f^' h\r.x , ^^h\
countryman be was, and whei uj
brick- maker, and promised him , n
of bud in Carolina. The fel(uA\
ration und euusidciiiUou, fourul li
great Io<mI, could not hW
as men that ha\e iioru-si
nndtr such thio;.'
hypocrisy arq u . _
'^m
^ High Treofm.
God, things WCTC bv this roeani discovere*! : for
he fi^oe* mM tells Col. Pennufdock ; aud
Kvlthal, Dutiuc swears to Barter^ it was the
Lr.ivtfst ji»b I bat he evff bad in bis life j wbere-
ttt ia tl>c bc^tufviii^ of bis story, be would h^rtt
told you A slniTi^e story of a black bcanl nnd
I do' not know uliAt, mid Ibat iie ^ot noi one
groat bv it: ibal be ^tk\c Uie if»an bAlf a cmvvn
t»ut of Lis nwit |Kicket, mnd was so industrious,
as wbcu be knexv the way no f«rtbt'r» tbat he
woutd hire one biinsclfto shew biin (be way,
and all for noibini^, but only for tbe kiudness
be biid for a bbuk beard.
BesideiT geiUkmen, lam sorry to remember
tomething that dropped even fi om the gentJe-
woDiati hcr^ulf ; she pretends U* religion and
loyally very uuu b, bow iip-eaily she wept tt
the deatli of king Charles tbe ^lartyr, and
oniis her ^cat obligations to tbe late King' and
Ms royal brother ; that she bad not bad abetng*,
nm any thin^ to mamiain it for tiventy years
list past bat firom their bounty, and yet uo
•ocner is one In the grave, but she foi^gietii all
^ratitudet and ent<^rtains those tbat were rebels
asrainsi his roval Bu«x"c«»w>r i will not say
what hand her bu&baud had in the death of that
lilessed inartyr»* she biKenouffb to ons^ver for
<if her owii i^iidt ; and J must confess it on n-bt
not o»ie way t»r other to nmke any in^eilipnt
into thi'^ case what she was in Conner tiriR-A :
and I toM a relation of ber*s^ Mr. Tij»[»in^ by
name, that came to me last niy^ht, to desire tbat
ht not He uruler some imputations that
in! abroAd of her, tbjit she rejoiced at tbe
dciiUi of kin^ CbarlL's I, nor ihut any lalse re-
port of tbiit nature mi;(ht Influence tl»e court or
jury against her, tbat it should not : be tbe
Ibiog true or faUe, it is of no weij^l^t nnc wny
nr otlicr in the triiil of this case^ uor is she to te
accountal>le lor iL f
But I must rememtierycMJ of one (yarlirular,
that lA pluhi u|Mni l\m rvidence, and j-iof very
great moment in this i^i^'^ * tVv^t nfter all these
Iirivatc messB^« and d^ iven to come
>y Diglit, and the kind n , i Ihv met with
when they came, and alter all tfiiK care to
I Mge thrm and fee*! ihem, when colonel Pen-
k|A£(oek» after the discovery made by HHrter,
P^^r to search her house, then she ha^ no bo<]y
' in it truly, which is an ag-jjfravation of the
offence testified hy colonel Penruddork himself,
whose f»th«fr likewise was a martyr, aud died
for bis ftdcUty to the crown ; and who was the
judge of tbat fattier, we all very well kuow.f
prrj
■ "ijnst msinuation, only to
L,% as the rhiei' justice
j/iirjioMe ; lor wliich rea-
heen kt alotic, and ibou(*-h
. it Miicrbt not to induence tbe Ca«e, yet
V fi»ry likdy to do so.*' Note to
W0n it should bare
he siiid.
Iiel
1 rtrV\d. 5,p. 707,
int^ d' Col. John Peo*
;*j, that Li».li-' wuss one of the
1 . of Over and IVrnuuer, before
ir hom tiisl inal was fiad. I$ev vol. d, n, 775.
VOL. xr
A. D. ms.
I Goil Altni^hty is a juxt God, am! tt may !
worth cousiderini; (especially hy her) how Go
has been jilcasetl to utake u&e rabim as the tq
Blrument m this business ; and she would like
wise do well to consider the finger of Ood i
working upon tbe heart of tbat man Darte
who was employed in all this affair, and ihi
all the truth has been toltl by Nelthorp, tha
blackest of Villains Nellliorp, 'that would havi
murdered the late king and his royal brother J
tbat he was one of those barbarous, niuliciutitl
aasiasiiifttBi in that black oonaptroey^ ^ind ouuf
la wed, should be harboured, by one that m
< 0 for the royal family, and entertUDi
^1 M : rsetl with at nig^ht about being' id Xh4
army j yet tbat he and that other villain Hick^J
who pretends to religion and to be a preacher ]
of the gospel, but is found in rebellion and ia i
the company of traitors^ should be denied th* j
next morning,
1 hope they themselves are all by this tln.^
satisfied truth will comti out^ and I hope yoti 1
will not be deceiied by any specious pr*^lence«« j
Our forefathers have been deluded, but tlie de« \
caption, I hope, is now at an end. And I '
must needs say, if all these uritucsscs thai "
have freely diicoveretl their knowledge, joined j
to that Inilh which is at length drawn from
that Dutme, be worthy of any cre<ht, it is j
as plain a proof as can be given, and ai evi» j
dent as the sun at noon day.
Gentlemen, u|M>n yourconscienceabe it j th«l
preservation ot the Vuvernment, the life of the ]
king^ the safety and honour of our religioi3| <
and the discharge of our eoosciences as foyni
men, good Christians, and faithful subjectS|
are at stake ; neither her a^je nor her sex art
to move yon I who hare nothui^ else to eon*
sider but tbe evidence of the lact you are to
try. 1 charge you, therefore, as you will an-^
swer it at tbe bar of the last judgment, wher«
you and we must all appear, deliver your
verdict according to cc»rtscience and truth.
With that grf*ai God, the iinpartisl judjfe,
there is no stjcli tlihig as respect of f^ersons j
and in our <' nf our duly in courts of
justice, he i I -d us Jm creatures, tbat
wf must have no such thing as a frit^nd m'th«
administration of justice, all oar friend&lii]?
must be to truth, and our care to pireserve tlial
inviolate*
Lhtr. Mv lord, if your I<ird»(hip please—.
X. €, X Mistress, you have had your tum^
you caiiuot now be heard any toore alter th«
jurv iscbarged.
Mm. Lidt, My lord, 1 did not know NeltboiT»,
1 declare it, l>etbre he was taken.
L. C ' ^ '"« ■'" "Ot indicted for Nelthorp,
but wr : into dialogues now, the
jury UiLi.^ LJ!. p. , , It,
Jury- man. Pray my lord, some of us dcdre
to know of your lonlship, in point o<f law,
whether it be tbe same ibiiig, aud equnlljr ' i
treason, in receiving him before he waa con-
% icled of tn^ason^ as if it had bct^o aAer.
L. C Jr It is all the* satue, that certainly cati
fie no dou^t| f^, if io Cfttt tldf Bicks hu4
u u
3TI]
I JAMEI^ II.
been wounded in the rebels 6fmy, and bad
'come to ber bouse and tberebeen entertained,
hut bad die<l (bere of bis wounds, and so could
never bave been convicted, slie had been
nevertheless a traitor.*
Then the jin-y withdrew, and ntay ingf out a
while, theloitl Jefibries expressed a fljeat deal
of im|iatience, and said, he wondered that in ao
plain a case they, would go from the bar, and
would bnvo sent for them with on intimation,
•that if they did not come qnickly^ he wouki
■adjourn, and let them lie by it all night ; but
after aliont half an hour's stay the Jury re-
turned, and the Foreman addressed himself to
.the conrt thus :
Foreman. IMy loril, we have one Uung to
beg of your lordship some directions in, before
"We can give our venlict in this case ; We have
some doubt upon us, whether there be sufficient
proof that she knew Hicks to have been in the
array.
- L, C. J. There is as full proof as ^proof can
be ; but .you are judges or the proof, fur my
part I thought there was no difficulty in it.
* *< With regard to a person knowingly re-
ociving and harljouring a traitor, the learned
judge [See 1 Hale's P. C. chap, xxii p. 838]
in the place lately cited arguetti, That though
he IS in the eye of the law a principal traitor
and shall not be said to be an accessary, yet
thus much he partaketb of an accessarv, liis
indictment must be special of the receipt aud
not of the principal treason. If he is indicted
by a sei'eral indictment, be shall not he tried
till the principal be convicted ; if in the same
indictment with the principal, the jury must
be charged to enquire iirst of the principal
offender, and if they find him guilty, then of
the receipt ; and if the principal be not guilty,
then to acquit l)oth ; for though in the eye iif
thelaiv they are buth princiftals in treason, yet in
truth he (the receiver) is so far an accessary that
he cannot he guilty if the principal l)c innocent.
*« In the case of Mrs. Lisle, whose hard fate
h was to fall into the bauds of perhafis the
worst judge that ever disgracfnl Westminster-
hall, no reuurd was paid to this doctrine. I
would nor lie thought to mention this case as
an authority, tipon which a doubt can at this
day be possibly raised. I do it for the sake of
wliat hnp|>cncd af\en»ard3, which I take
to be iui autliority with me. Her attainder
vas afterwards reversed in parliament ;
and the act reciteth among other hard*
ships of her case, *' That nhe was, byunir-
^ regular and undue prosecution, indicted for
'* enteiiaitiing and couccalinc John Hicks a
*f false tniitiir knowing him to be such ; though
«' the said Hicks was not
** trial attainted or convicted of any such
«.crime.*» Foster, 345.
Nee also, 1 Ilale^s P. C. chap. 22. 2 Hale's
P. C. cht|i. «R, p. 273. East's P. C. chap. 2,
/ •' •^. C2, cbap. 3.
Tridt of the Lady Alice Lislr^ [3T8
Foranan. My lord, we are in fomc doubt
of it.
L. C. J. I cannot help yonr doubts : wu
there not proved a discourse of the battle and
of the army at supper-time P
Foreman. But, my lord, we are not satis-
fied that she had notice tfaat Hicks was in the
army.
L. C J. 1 cannot tell what wonM satisfy
you ; Did she not enquire of Dunne, whether
Hicks had liocn m the army ? And when he
told her be did not know, she did not say she
would refuse him if he bad been there, bat or-
dered him to come by night, by which it is evi-
dent she sus))ected it ; and when he and Nef-
thorp came, discoursed with them about the
battle and the amiy. Come, come, gentlemi^
it is a plain proof.
Foreman, My lonl, we do not rsmemVir
that it was proved that she did ask any sttdi
question when they were there.
X. C. J. Sure you do not remenaber ai^
thing that Inui passed ? Did not Dunne ten
you there was such discourse, and she was by
and Nclthorp'sname was named ? But If thaie
were no such proof the circunootaneea and
management of tbetbiojg is as luU a proof «
can lie ; 1 wonder what it is you doobi eC?
Mrs. Lisle, My lord, I hqie
L.C.L Yon must not speak now.
Then the jury laid their heads together f^
near a quarter of an hour, and at length agreed)
and being called over, delivered in thia Terdiet
by the foreman. •
* ** It appears b^ the pnblio prints, the
Jury were so unsatisfied by the evidence^ thit
jtbey thrice brought her in Not Guihv, at last
upon J cii*eries*s threats, the^ brongrht her iH
Guilty." 11. Coke's Detection^ ^c Toh ^
p. y39, edit. 17 IQ.
** Though the Jury brought her in thiae
times Not Guilty, yet Jeff^ya threats ao ftr
prevailed, that sbe was at last found GnU^-"
Kennett, vol. 3. p. 4S3, 2d ed. 1713.
*< The Jury, not satisfied with the eridencei
brougitt her in Not Guilty. But Jefieriea ia
great fury sent them out again. They ibnnd
her not guilty three times : but JeBkaet
threatening them with an attaint of Jury,-ilK
was brought in Guilty, and executed aooord*
ingly." Kapin, v. 2, p. 750, edit, of 1749.
'' The Jury brought her in Not Ooiky ;
but the execrable judge, in great fuiy, asal
them out again, yet they brought her in a
second rj me Not Guilty. Then he seemed as
in a u-aiisiMirt (if rage, threatening them with
an attaint of treason. Thus overcome WiA
[It the time of the \ i'enr, they ut the third time brought her Jl -
' guihy." CIdmixon, vol. 1, p. 706, edit. 1190.
^' Though the iury brought her in Hat
Guilty three sev era! times, yet judge Jeffeiyj^
threatHso far pre^aiU^I ihat ut fiat aha HM
found Guilty." Ecfaatd, p. 1068, fol, ed. oTlTW
CluJ'Ar
^111 Ity f>l' bigli
to die.
1e, flolil up thy ItnntK
look upon the prisutier,
• giiiky of tlie treoBuo
licUri]| or tiotgiiilt^^ ?
ihIs or chiittels, tands or
' *'lliat we know of,
"k io bcr,jHiiorj site is foumt
K
Tticn the Verdict was reconletl.
X. C J. c I , I dlJ lYOt thiuk I stiuuld
hdjre bad n ••n to sricak aAer vour
▼cntM!t, but tiiMiin^ some htsiiancv omi ifoabl
amonfr yoa, I cannot* but sav, t iviHiJer It
^n i'' , p abijut ; Tori thiuk in my con-
B< I eviikace was hs fufl and lOuin as
f .r, , a (id if I bad bfei> uuioh^ yuu^ and
bud tfeen my owd motherg 1 hlioubl have
indber guilty.
tlieii tbe Court ailjoameil till the ncjct morninj.
Dies Veneris ^8 i^ugusti* Kjafi.
This tJ»y Alice Lis)e tvas broug^bt to thi? lmr»
•nd beifip: sfikcd wbot hbebad to say for benteif,
Hj^rladgmeot of dctath aboiiy not ^iruig up<in
htai4e«ic ooltvieled of hi^h treason ; but ol-
fbriog^ Dodibg, slie wns, m-ith the rest of tbe
pntonera lliaft wi>ne to rrcf jtc the Rptiteace nf
mfh, eondenned by the lord JeAeHee, who
L, C. J. Alice l.isfe and yoii ihe^seveml
pi^oni^iNk now at the bar, you baT« Imh-u se-
verally indicted* arraigned, and now stand
^'vemlly convicted of criuaes that by the laws
oft he bud are to bepuniiihed with death \ you
«taod coil vi died by your equidfi, by a jury of
" The jury were di»t8ati*itied onc4^and agnin,
bttf my lord's threats '^'-i '-♦!'- "•' -v so
ifis|io«e<1 the jury th:it ilie
lady in Guilty,^' Liii . ..u^^
liord Jeffreyt.
trt !. SM. 1, p ; ' -
1-i i uper c»iof
tO' ...... , ^|.^| ^jj^, j[,|i y
tn iothtnj<ol this
*iu^ ,,* .,,. , ,.j*t. ... ,,.,v..., ,.. ...ij report or as
abridged by Katph ttimself
" Lord B " nafd
Hutton^ y|ii< iif
tl- ' - hii
all' u'l!,
li ih^L ,i^t,iii, iu jrinj tJJTIii II ^ nil' tiu>r>.
Bai-tiu'ii Wfrrku toI.^, p. ^81, ed. of irSS,
S<» iti vol ( an
ViStAllCtt ot nU
Jnry. Sec too mj v.i. n, tin ruMs oj iVua
«£mJ Misad atid of BuhIkIL See aUo in this
tolamo 11. 06. a ta»e ot a bcota aiiaize
J^oniaiidvu liU tlicy pronounced tlu! ^atutali
guilty.
1
bave
liad^ iind !.e (nnd one of
you did o»;iiv*_j yyv\.i\, r> ^ yfiii coubl:'
hut upon full evidence^ i ly ot your
,tivi> i i.nfirry im*n you ba*, ,. , i. iuUTid <;'mlTy
I lines tor which ^ouarelodie; ami
liidiiiB now no more \^itb the cuuit but
to pertorin their duty, nhich m lo pronounce
that At-riteuce, that dismal senteure of flv^tth,
Hhich the law has provided fur auch (»ffenders.
And sure 1 atn, it cannot hut be tlnuM^bt un*
easy, and fur troni pleasant, not only to me,
but to every body elsethut sees* s^och ft farnent'-
able object, such a u umber of p<
might have acquired to iheiuselve
livelihtwd by dilio^ence in their laui
beincr dutllul to God, and obedient
' wsofthe land, *^in> \ < i n
, have brontjbt ibem^tlv^ ^
Liiuc'ly cod by tbeirowu wicked
CfllU'Ses*
ploi *
WOUj-' ' . '/. ' ;i
in years, tberti
crelion : one, \^ ^ a
a gT» !» r iu, 4U*d pjoleisi^M' of, ielis;jou,
and*- I -ion which bears a very gfood
natoe, the riittcstant religion \ but that nunre
Jias been pervttf t^rd to very ill purjiobcft by some
people, who bave had nothings but the tiame |o
protect tbeatselves under.
There is im> rcJij^doa whatsoe'er (eictpt that
hypocritical ptHitessiun of tlieirs which de-
serves not the name of reli^on, 1 mean tht^
canting, wbiuiuj^, pj-csbytcrian, pbauatical
.,, ,.»i.^.;,.r. <L,i .r.^vii the least couutaianee to
; and I cannot but lamej^l
A-, i
sad ::, - ^ x: v.. ■ ■ ' ' ' '-■**
many p4jguries:^hoi)ld be added to tlie etiuie
of treason, wich as for ujy part I cannot hitt
trendile to remember; perjuries in defmuce
of all the instruction Rtid fidnionition that iru^
chnstiau charity otn' , aud in defiauMj
*>fthc omniscience i.i id* the alUseein^
^' 1 of truth: youo!i;^iit to rttkct upon whOste
Mint those perjutics were eotnuiitlfd, and
m iiy tlieui scnoitbly to 1 ' ' " iti
ik few bours (tkrcite n<" »
^ive an account at u^r%.*ii* ^ix^ ,u^ -.. ^^kix
lhoU|;4hte, w onU, and aclions,
Voil ' until ii!.i wivi >Im \m\\ lnlirl!niit \(ii!r..
awn i X
you upon v«ur
tai»cc m lYt^ I
oveti ui Uki
fiMii l> tned ;
no, ii IS Ukii uukuuvvu Mho v\^ i'<c ^tiut fur uikiii
tbf Itlnoday nijilil, iu order to have lltat rcb^).
' '^ fellow tu preach to i' ^ it
leivcu to coiue ill
tJit'i: \ .''---', - s
wer* H
Were ii^<j^ivJU4L^ ^u vc ui.j.j^.n.oi.Ti III, 1 1 I,.', sin-^k
I
J
379] 1 JAMES II.
see the Register, fol. 165. in Felony, Trhere
the jud^nnent al way vis tuxpendatur per colUtm ;
yet the party may be beheaded, which is no
part of the Sentence [Pari. 8. E. 3.1 So was
the duke of Somerset in tlietime of Edw. 6. for
felony : So was the lord Audiey, 7 Car. 1. for
felony (Rape.) Queen Ratherine Howard for
treaflon, Hen. 8. and Jane Grey primo Maria.
The countess of Salisbury, bein^ attainted for
treason. Anno 1541, was beheaded 32 Hen. 8.
See 3 €o. Inst. p. 211, «]3.
f\'bereupon his niaiesty was pleased to sign
the following Warraot :
" J. R.
^< Whereas we ire kformed that Alicia
lisle has received Sentence of death ibr high
treason at the sessions of Oyer and Terminer,
and gaol-delivery, held at onr city of Win-
cherter, for harbouring of John Hicks a rebel,
and that the sentence is to be executed upon
ber the second of September next, by burning
btt alive : And whereas the said Alicia Lisle
has humbly petitioned us to alter the manner of
the said execntion, by causing her head to be
severed from her body : We, being gra^^ously
pleased to condescend to her request, have
thought fit hereby to signify our will and plea-
sure accordingly. And our further will and
pleasure is, that you deliver the bead and body
to her relations to be privately and decently
interred : And for so doing this shall be your
warrant — Given at our court at Windsor, the
aistday of August 1685, in the fir^ year of
our reign. Sunderland."
«* To our trusty and well- beloved tbeHigfa-
Sheriflfof our county of Hants, and to
all others whom it may concern."
Which warrant being delivered to the She-
riff, she was, on Wednesday the second of
September, in the afternoon, brought to exe-
cution ; which was performed upon a scaiHdd
erected in tlie market-place of the cily of Win-
chester, wheve she iM^haved herself with a
great deal of christian resolution. She then
delivered a paper to the sheriir, a copy of
which follows ; and after some little time
was executed, having her head scverM from
ber body.
ju(li;ineDt for hanging was the legal ordinary
judgment in the case ot felony, and that execu-
tion wns commonly done in that inanniT. They
shew likewise, that beheading in sonic special
eases upon a judgmeut in felony hath been
practised in all ages.
<' I therefore conclude, till I shall be better
informed, that the prerogative now under con-
sideration, founded in mercy, and never in any
age complained of, is pait of the common
law.
^ " Lonl Coke, in one of the passages I have
dted, after admitting that in the ca.seshe men-
tioneth the execution did vary from the judg-
ment, conoliideth, *' Judkandum est UgiSit
•^ gum cr^ip^" Tht rale is true, but the mis-
Trial of the Lady Alice Lide. [380
A Copy of the Paper delivered to ttie Sheriff.
** Gentlemen, Friends, and Neighbocm,
" It may be expected that I shoald aay
something at my death, my bhlh and educa-
tion being near this place. My parents io«
structed me in the fear of God, ana 1 now dit
of the reformed religion, always being instroct*
ed in that belief, that if Popery should return
this nation, it would be a great judgment.^ I
die in the expectation of pardon of my aina,
anil acct'ptation witU the Father, by. the im*
puted righteousness of Jesus Clinst^ he bcin|^
the end of the law for righteousness to every
one that believes. I tha nk God through Jefu
Christ, I depart under the Blood of Sprinkling,
which speaKcth better thin^ than the Blood of
Abel, God having made this chastiBement an
onlinance to my soul.
<' I did as little expect to come to thii ]^laoe
on this occasion as any person in this nation ;
tliercforc let us learn not to be high -mindedi
but fear the Lord : The Lord is a '^
and will take what way he sees best tojgtonf|r
himself by his poor creatures; thertfore do
humbly desire to submit to his will, .praying
him, that in patience I may possess my aonl.
<< My crime was entertaining a nonconform-
ist minister, who is since sworn to have been
in the late duke of Monmouth's army. 1 am
told, if I had not denied them, it would not have
affected me. - I have no excuse but saifrita
and fear ; which I believe my iury most
make use of to excuse their verdict to tha
world.
'* 1 have been told, the court oo^ht to ba
counsel for the prisoner, instead of whitih^ then
was evidence given from thence ; which,
though it were but hearsay, might possibly af-
fect my jury. My defence was such as might
be cxitected from a weak woman : but si)u;h
as it was, I did not bear it repeated again to
the jury. But I fomve all persons that have
done me wrong, and 1 desire tliat God will do
so likewise.
" I forgive colonel Peuruddock, tliouch he
told me, he cou'd have taken those men befiiR
they came tfi my house.
*' As to what may be objected, that ] nre it
under my hand tliat I had discoursed widi
take lieth in the application of it ; for inune-
moriul usage, founded in mercy and never
complaiiicil of, is undoubtedly sufiicicnt in this
as in every other case, to drt'erniine what ia ar
is not pai*t of the coinniou-law." Foster, 867*
See too Er.sl's Pleas of the Ci-own, chap. 5.
s. 90. Ho{<[er Coke tells us '' that whether the
sentence wasjustornot, the pmiish men tvraa un-
just, for though the king may pardon or miti*
gate the piinibhnient of any crime againat fainiy
as to pardon treason or to mitigate the cgnen-
tionto beheading, which is]mrtof the sentenea^
yet he cannot alter the punishment into aiiy
other than the law prescribes.'' S DetcctioBb
339, 340.
THff& fffPrmfc^t l^ffg* ^^^^ Oattnt, Sr CormsL A. 1>, 1665-
Jlrltliotpj ihut coiiM In? nt> cvitlenrc to tlie
court Or jut>'j U being ailcr coy c<>nvictioD
•nd seatencer
*• I ackiiuwleiijfe hia riittjcsty's farour io al-
lering ray sentence ; and I pray God lo j>rt-
■erfe him, that he nvay ^on^ rvlt^n in peace,
And ibe Ime reiipon il I^t lum,
•* Tno Uiinj^s I ha\ i to sav, '.rhicli
' ' .t I for^jive Iiim tliut (!ti>irtd lo (le taken
1 iic Crund Jury to tlie ptity jury » \h\\i be
rniL^iit be the titor^ nearly coucemed in my
' lieiitb.
** Also, I return bnmhle tlianks to Alniigbly
God, and the reverend der^y thai assisted uie
in my iinpri»onm6nt.
"^l»i. 2, 1685. Alice Lisle."
l[«n* AttaindsT wftv silnnraidB ref eried 1st of
WilJuLtn and Mary.
Prtmo GidicUni & Alariie, a. d. 1C89.
An ACT fisr iinnutrnt|<f and raaktntr ^oid the at-
* laiodiv <»r AlvaiiX Li^lc, widow.
\\ berca^ Aticiu Lisle, wido\r, in the month
*)f August, in the first yetir of tlie reigu
of the lute king James the 8ei'on<), al a
session of Oyer and Teriuiner, and g^aol tle-
IJver y, bulden d^r '' " r ^ ■ ' . ^ -
at the city of ^V
liy an irreg-wlar iiuu lu^^.u'. |f.i/^,.t ^iii-u, .1.1=
iudiclml for eutirtainini^, conccalinij and cuui-
forthie John flicks, clerk, a false traitor,
knoninn;; him to he iuch^ though the t»atd
Jiihn lJtik'4 W.I , hut. :ii the trlnl oT tin* siiid
^1
'v.\ i . . _ . .;'■''■,
and procured by the lueuiict;^ and violences,
»nd otlii'f iU<i<i;fil oraotices of Georije lord Jef.
feries, baron of Wctn,* then Lord Chief Jus-
I — ^ — • — • — ^■— ^^^i^^fc
• " Grangier, in bis Biographical iristury of
Bn|;bud| vol. 4f y, 272, says that lie had keen
tioe of th> , and chief commlfi-
sfioner of* i aer and gnol dclryery ^
within th< \\ was conTiele<t, ifttainted,
4im1 exccu ^b Treason: Mav it there-
fare please yuur uuist exretlent mti}eitiiri», at
the htmtble petition of Tripliena Ll«>\'d aod
Bridget Usher, daughters of ibe wid Ahcia
Lisle, That it he iWchired and enacted by the
aulhoHty of tin : ps^rhament : And be
itenacteil bytl nd Uueeu'a ntiisi ea*
cellent muj^ stir 1 d with the advice and
consent of i!r ! i 1 | i an ahind tern porn l, and
Common2» iu i\it^ |>it:Miiiipariiamentati;»eiiibled^
iiUii by the auth(»rity of the same, timt the
siiid fv»ni M li-ui .."-i^r^K^tit and aitaioder of the
atnd , and are hereby repealed,
rett^i i^'f"lart'(i mill jitnl vni«l la
aii i I
attainder bud ever been bad or made ; and
that oooorruption of bkmil or othr!r pemUiy or
forf«itiire of honour*, diL: n^tn, ^okMI^
or diattek, be by iUe&i: ioo or «iU
tat nder incurred : any law, u^a^^c or custoiB
the centra ry notwiib^tatubn^.f
(in a hook prinlad in 16B7) a dedicaiion to h>ni
Jeffryes, by the titles of ^ carl of Ip'bnt, viscoiini
* Wycombe, and buroii Wetu** Hut, an in
this bill hp ?" I'll lord Jeffryes ; it in. certain
he na^ n* 1 poweHsiott of iboKe ho*
EUHira ; ili -^ „ , . haps, 1* patent for that pur*
pose mifjtit have been preparing lor hi«i, vribcii
thai diuUcation was piibliiibed, just before tbe
And yet, as bite as ih« ath day of
ri, iQ the warrant sifyncd hv him* atttt
vy counsellors, for r ; ,
^<)(>sto the Tower; h' . jjt»»
Ueargv lurd Jeffrycs, bariHi of Wchu/' liat4
f As t^ th<i tvmi of bills of atuuuder,
•om* ' ifis ina note Uk vol. 0, {I.
ofUi u.
3^2* Trials of John FEiiNtEv, William Ring, Eliz, GaumTj!
and Henrv CoRNi8H,'f esq* at llic Old Bailey, for Hij
Treason: I James IL a. d, 1685,
Monda^^ Oct. t% 1685*
j',-House, hi the OW-Bailey,
a being mi% and prochiruation
* 8ffo what Barnet says of her in t}ie Not€
^La^fv T ' • ^' 1 ' " *, niunie.
^ *'■ I UU!.
** *^ V* tbemierli'cs
bt M- K wi>.. bad
vvb
made for attendance, the proceediti|^ were 1
loHow :
Ckrk, Set Jvhn Femley to the bar. [Whic
was done.]
etilhv of thAl for whb-h tb« bml Rn«t'M»l| hn
w nmn in*' w r h , >
tiiL- falshotnl of tht" <
prov'f ' 'r -' ''
whir
soon afit
i!iHi
.1 r.i liiv 1'
and MiMi luttd, lU<>
all ba knew.
t
j^iiied with Coodcnouj; b, ty «w«ar Coruisii iimoccnctt. with iffcmt reheiyence j and ,witk
Cr^er, O ye«. All mftiiDcr of persons are
-cominaDded to ke«?p Bilcnce> upon pain of \m-
prbonment. ^
J Cryer, John Fertilev* liold \ip thy hand.
S Which he did] Thoii atandest indicted by
i9 narae of John Feniley .
** Miidlaes.
** The jorors for our sorerei-jn lord the king"
tipon their oalh*t do present. That John Fern-
ley, of the parish of St. Mary Matfellon, other*
%ise White-Chapel, in the cnunty of Middle-
sex, barber, as a false rebel and traitor against
the moat iMustrious and most ticellent prince
king James the second, by thecrmce of God of
£Dgiand, Scotland, Frwnce» atiil Ireland, king,
and his natiiral lord, not having the fear of
<5od in his heart, nor his doe obedience any
%ti«e regarding;, but beings moved and seduced
%y the tnstigation of the devil ; and his faUh-
t\il duly and natural obedience which a true
and loyal subject ought to hate towards his
add lord the kme, and by law ought toobeerre,
utterly withdrawing; and inteudinH" with aJl
his endeavours tli« peace and tranquillity of tliis
kingilom of England to diatuib, and war and
' rebellion against our said lord the king to in-
cite and move, and the ^vernmenl of our said
|nrd the king in this kingdom of England to
fM)f%e acrimony complained of the methods
taken to destroy him. And to they gave it out,
that he died in a fit of fury. But Pen, who
saw the ejcecution, said tome, there appeared
nothing but a ju^ indignation that innocence
might Tery naturally give. Pen might be
well r«!ieil'on in such' matters, he being so en-
tirely iu the king's iiiteresi*. He said to me,
the Iting was much to be pitied, who was hur*
ried into all this effusion of blood by Jefteries^u
impetuous and cruel tern per. But, if bis own
incliDalions had not been biass^l that way, and
if his priests had not thout^ht it the intereatof
their party to let that butcher loose, by which
so many men that were like to oppose them
were put out of the way, it i« not to be ima-
gined, that there would have been such a run
of bafbarous cruelty, and tliat io so many in*
vtaooef/* Burnet
" July 20th 1685 Richard Goodcnough*
ibrroerly under sherdf of London, outlawed for
high treason on account of the fanatk? cun-
siJracy, and one of the rebels in the west,
hctng taken in Devonshire, waa this day brought
to town ; he hath been l»efore the council, and
doth* as la said, make a free and a laige cou-
li^nn*
" Not, 2Cl, 1685. Nathaniel Wade, llichard
Goodenough and Jame^s llurton, were bn>ugltt
to the King's l«?ncti bar, and pleaded {\\% m«-
jfaty*a pardon to I hem for their outlawry of
tirti* n T^-* jOI other mincn to the 4th of Jnly
I^Ht, n« allow td, and they remanded
Hi. rutr lill hii majcstv's ideasure
N'arcissuiLi'' * ' S.
. :Utatiunm AUt^j < > y*
V Hing^ Mrs* Gcunty Sf Cornish^ [3B4
■nbvert, and oor said lord the king rmm his
title, honour, and regal and imperial crown of
this his kingdom of England to depoae and de-
prive, and our said lord the king to death and
utier destruction to bring; the «Oth day of
Augufit in die year of therden ofour sovertngn
lord James the second, by ine grace of God of
England, Scotland, France, and Ireland, king,
defender of the faith, ^c. the first, and divcfv
other days as well before a» atW, at the parbh
of Ht. Marj' iMaifellon, otherwise called White-
Chapcl, in the county of Middl#*j^i£. niWth ,
maliciously, devilishly, and trait.
divers rebels and traitors to the jm i
unknown f did conspire, ima^ne, and intend
our said sovenngn lord the kmg, now his su-
preme and natural lord, not only of his royal
state, title, |»ower, and government of thk luf
kingdom of England, to deprive and drpoae,
but also the bame lonl the king to kilt
and murder, and the ancient ^a *
this kingdom of England to chain
totally aobvert, and a miserabu^ smu
imongat the subjects of our lord Ibc
throoghout all tbb his kingdom of En^l
cause and procure ; and an insurrection.
rebellion against our lord the king to pr<
promote, and assist : And the same bis
wicked, most inhuman, and mostdevUisU
B0U8 and conspiracies, purposes and trail
imaginations to fulfil and to effect, he ill
John Femley, as a false traitor, then and tbctr,
Tiz. on the said 9Qtli day of August, in ibt
year of the reign ofour «aid lord the king, the
first as afortfliaid, at the parish aforesaid, in
the county aforesaid, well knowing one Jatnea
Burton to be a false traitor, and as a fabe trai-'
tor traitomusly to have conspired and imacpnei*
the death aud utter destruction of our said lord'
the king, and war and rebellion r ; 't our
said lord the king within this kin- i ng-
land traitorously («ilh divers uiU^^i iiuU U te
the jury unknown) to have levied oikJ stirred
up, ; he the said John Femley afterward*, vit,
on the said 20th day of Augiiiit, in the year of
the reign of oursaiS lord the king, nns\ the fir*t
aforesaid^ at the parish afore^d, in ihm
county atbresaid, the said James Burton inthff'
inaniiion-house of him the said John '
aituate io the parish and county
knowinglv, aerreilvt <^ickedly, «^ .uul
traitorously, did harbour, com ton,
sustain, and keep ; and then and there, !br
the comforting, sustentation, and inaintf*
nance of the said James Burton, the said John
Fernlf y meat and drink to the said James Bur*]
ton maliciously and traitorousty did r"* " -' !
deliver, and did cause lobe giveu and -
agaiusEt the duty of his all* <r'>'*"' ^*
peace of our said lonl the l n
dignity, and also against the 1 i
iu the like case made andproviiledt Vc."
C*W Jt, How saye^ thou, John Fernley» ad
thou iruilt; of the high treason wbci
stand est lu'dicted, or not guilty T
Ftrnlcy, Not guilty.
Clerk. Culprit, !»ow wilt thou bt ti
BSS,J^
(3S5]
for High Tre£Uon,
FtrnJf^, By God lud my country.
Cierk. ,God send tbee a gQi>d deUvanixce*
Set Willuun tUng to tlie liflir, [Which was
Wiilimn Rio^, hold up tbj hand. [Which
lic did.]
Thou staodest indicted by the name of WiU
iiaiD Rin^, of the ijarisli of Sl Clement's
Danes, in tbecouttty ot Middlesex, tay lor.
Middtcics. The jurors for our sofcrdgn
lord Lbf kitig do prt^unt upon their oaths, That
Williaui Kiiisf, late of the parish of ^i, Cle-
nieol'ii Dane^t in the county of 'VliddletitrX,
taylorf aa a faUi; traitor against the most lUus*
tnoutj and excellent prinre James the second,
by the grace of God oi' England, Scotland,
France^ and Ireland, king, and bis natural
lord, nut hatinj^ the fear of God in his heart,
nor the duty of his allegiance any ways weigh-
ing, but Uein^ moved and seduced hy the in-
stigation of Ll*e de* d, and the true, due, and na-
tural obedience which true and fiiiiliful sub-
jects of our baid lord tlie king towards our said
lord thi^ king ghoutdaud of right ought to bear»
nvholly withdrawing; and with his whole
fthrengih intending the peace and common
iranquillJty of this kingdom of England to dis-
quiet, molest, and disturb, aod war ai»d rebel-
ItOD against our said lord the kbg within this
iiis kiogdoni of England to incite and stir up,
and the government of our said lord the king m
this his kingdom of EtwUiDd to subvert, and
our said Im-d the kioj^ from his iille, honour,
and regal name of his imperial crown of this
his kingdom of England to depose and dc-
priro^ and our said lord the long to death
and final destruction to bring and put, the
20th day of July, in the tin»t year of the
ixign of our sovereign lord James the second,
hy the grac« of God of England, iijcotland,
France, and Ireland, king, defender of the
faith, and divers other da^^^ and times, as well
lieibre as a(\er, at the parish of 8t. C.lement^s
Danes, in the county of Middlesex, falsely and
maliriou^ly^ devilishly, and traitorously, with
divers other rebels and traitors to the jurors
unknown* did conspire, imagine, an<i intend,
oursaid lord the king, oursupreme and natural
lord, not only from hia state, title, fiower, and
^ovemmeut of his kingdom of England to de-
nrire and depose, but aUo our said lord the
king to kill and put to death, and the tincient
government of this kingdom of Eugiand to
«;hange and alter, and wholly to subvert; and
ft mi'ierable slaughter amotig the sidijects of
oursaid lord the king throughout this whole
kingdom of EugUmd to cause and procure \
Mid.iuturreciion and rebeUion against our aaid
lord the king to procure, move aud assist : and
bis said most wicked and devilij»h treasons and
traitorous conspiracies, compassing^, imagina-
tions, and purposes aforesaid to fulfil, eflect^ and
[lerfect, be the said WQIiam King, as a filae
^vitor, then and there, to wit, tho said ^Oth
.day of July, in the said iun^ jku of the reign
VOL Xt.
A. D. 1665.
of our s:iid lord the kuig that now is, aforesaid^
ai the parisli und county aforeFaiil^ well knoit«
ing Joiiiaph kellowny and Henry Lawreirae I
he false traiton, and us taUe traitorHtrailoroual
to tiavecon«»pirid and imcgined the death aod fiT- \
nal destruction of our !iiud lord the king^ and w«
and rebellion :igainst our said lord the king withal
in this his kingdom of Eugiand, traitorous! yy]
with dfvei^ other tmitors to the jurors unknowit'j
to have levied, and raisrd, aud stirred up. And \
he the laid Wihmm King aller>vards (to v*il^
the said 20ih day of July, in the ft rat year
the reign of our said sovereign lord the kin^l
aforesaid^at the parish aibn^aid, the said Jo-'
seph Kelloway and Henry Lawrence, in tli# j
d^^eliing-house of him ihe said William Hiojif^
siruated \i\ the parish and county albresaid.^
knowingly, secretly, wickedly, devdishly, anmj
traitorously, did harbour, conceaL r"nif!>ii,'^
sustain J and maintain ; and theo an«l
thecuuiiorting, suHtaininfr, and main f
the said Joseph Kelloi^ay and Henry Liiv
rence, he the s;iid William Ring mett an4
drink to the said Joseph Hetlouay and He^jiy-I
l^wrence malicioasly and traitorously tUdgirWJ
and deliver, and did cause to he given and de-
livered, againift the duty of his aUegiance^d
against the jieaeeof our said sovereign lord Ilia
king, his crown and dignity, ami iigain^st the
form of the statute inthk c^aae mndt and pro-i \
vided, L^^c.
llokv say est thou, WHliani Tliog, art thoti ,
guilty of the high treason whereof thou standi
eat indicted, or uotguiltyp — Kin^, Not guilty,
CUrk» Culprit, how wilt thou be tried f
Jliwg. liy God and my country.
Ckrk. Godaend ihee a good dilitcraoce*
Set HeDry Cornish to the Bar.
Henry Cornish, hold an thy hand.
Mr, Cornish. My lord, 1 have been ootilbedl
without any notice givon me until Saluitlajf
about noon of niv trial. My lord, 1 do hopci 1
seeing 1 appear before your lordships and thiff •<
honourable bench who have known some*
thing of my conversation, that you will bo
pleased to consider me, and grant me what 14
customary, and commonly done to' persoiu ta
my circumstances*
*Mr* Junes, Mr, Cornish, if you please yoa"^
shall have your time of speaLing hereaiW^ ^
hut now you are only to plead without any ,
more ado. : <
Comuk. ATy lord, I J>eseech you bear me a i
little ; I have been so confined.
Lord Mat/ar. Mr, Cornish, yort must ob«
serve the rules of the court.
Cornish, My lord, I hope I shall he alloipod i
what is customary in such cases.
Lord Mui/or. What is it you would have f
Corni&h. My lord, 1 do desire, if your lord* j
ship will please to consider me— " ,
Mr. Jittt^t, Would you not be arraigned, Mr* (
Corniflsh f After you are arrai|fiied and hav€ <
pleaded , you mav apeak.
2C
1 JAMES II. Trials o/Femlejf, Ring, Mn. Gaunt, Sf Cornish, [38K
CUrk. Henry Cornish, hold up lb y hand.
ComiiL My lord, I would do noUiiBg Ifait
•Iiould bo a dishonour to your lordsliip and thf
couil.
Sir Jamef Smith. You know 4be way of tha
court, Mr. Cornish ; you must plead.
Mr. Jonet. If you will not plead» I wiU mors
the court to record your standing ihute^ . .
Comuh. 1 hare known that thia court hath
heard what the prisoner hath to sav at the bar;
and 1 have more to say, perhaps, than any mu
that ever stood at this bar.
38rj
Cornish, Let me tell your lordship what my
case is : Is it reasonable not to have aboye half
a day's time for preparation for my trial, and
■o counsel allow^ me ?
Recorder. (Sir Thomas Jenner.) Nor ought,
without leave of the court, or by his majesty's
special appointment.
Cornish. I have not had a friend to come to
me, but in the presence of major Richardson.
Recorder. None have in your circumstances.
Cornish. My lord, ought not I to have a
copy of the pannel ? It is a thing never denied.
Recorder. It hath been denied very otlen.*
Comuh. My lord, it is a matter wherein my
life is concerned ; and therefore I hope your
lordship will hear me.
Mr. Jones. After you are arraigned you may
speak, and put off your trifU if you can.
Cornish. My loni, I cannot go from this be-
fore I possess your lordship with a right under-
standing of it ; it is beyond precedent : no such
precedent, that any man should be kept with
that strictness I have been.
Recorder. Mr. Cornish, I wonder you will
say so : I tell you there is no man accused of
your crime but is so kept.
Corni»h. If yuur lunlship pleases to allow
me a little time, I do not question but I can
very well satisfy your lordship, and this ho-
nourable court, that 1 'am a very innocent
person.
Recorder. You will have your proper time
for that, but now you must [>1ead, that you may
hear the particulars of your charge, and have
an oppoitunity to make out your innocence ;
for we must keen the same method with you
we do with all otiier persons in your circum-
stances ; and therefore you must plead as other
|>crsons do.
Mr. Jones. "Will you, or will you not, Sir,
without any more ado ? The law gives you
adrantajre, you may challenge any body ;
there are fourscore returned, honest men, and
you may challenpfc who you please.
Cornish. Alas ! my lord, what can 1 do ?
Counsel. He disputes out of time *, he is to
be arraigned.
Recorder. Come, Mr. Cornish, you must
plead.
Cornixh. I did understand last night his ma<
jesly was ffrriciously pleaseil to refer these
matters, as to my trial, to my lords the ju(i{;e: ;
and, my lord, 1 ilu hope that the judges, when
tliey huai- this matter, that I shall have some
time allowed.
Rtcurder. Pray, Mr. Cornish, take the rule
of tiie cnurt, yuur business is now to plead ;
%vhcn you liave pleaded, what you have to offer
for the puttin;^' otV your trial may be heard
then.
♦ ** it was indeed denied to StepUcn Colledge,
[See vol. 8, pp. 579, et seq. JB7.J but it was
allowed hud Uussell,*' [See vol. 9, p. 687.]
Note to former Edition. See, too, Algernon
bydney's Case, toI. 9, p. 824. But now as to
fliis, S«e St. 7 W. 9. c. 3. 7 Ann. c. 31.
Recorder. Mr. Cornish, when yoo
pleaded, you have time to speak for yoorself.
Clerk. Henry Cornish, hold up thy hand.
[Which he did.
Thou standest indicted by the name'tf
Henry Cornish.
<' That Henry Cornish, late of the pwisb «f
St. Michael Bassishaw, London, merchaat, is
a fidse traitor against the mostilliutrioua ptinoi
Charles the Second, late kinsf of EnglsBd,
Scotland, France, and Ireland, aefendeT of tfa^
faith, then his natural lord, not having^ ibe fiwr
of God in his heart, not weighing the doty rf
his allegiance, but moved and seduced by tbt
instigation of the devil, and the cordial lOM,
and true, due and natural obedienoe, wfaieh a
true and fai:thful subject of our late aereraign
lonl the king towards our late soveraga
lord the king should and of right ought to bssr,
altogether withdrawing; and minding, and
witli all his strength intending, the peace and
common tranquillity of this kingdom of £^
land to disquiet, molest, and disturb, and wsr
and rebellion agaiust our latesoveraign loid
the king, within this kingdom of Cngund Vs
stir up, move, and procure ; and the goven-
ment of our said late sovereign lord tlie Icmg of
this kingdom of England to subvert, chanffc^
and alter, and our said late sovereign lord&e
kint? from the title, honour, and kingly nans
of the crown imperial of this kingdom of Eng-
land to depose and deprive ; and our aaid hie
sovereign lord the king to death, and final de-
struction to bring and put: the 30th dayef
May, in the 35th year of the reign of ouraeid
sovereign lord the king, and divers other days
and times, as well before as after, at the pntfi
of St. Michael Bassishaw, London, ialsely,nilh
liciously, devilishly, and traitoroualy, with
divers iaise traitors *^to the jurors unknomi, did
consuire, compass, imagine, and intendi ev
said late sovereign lord (he king, his supmw
and natural ioi d, not only of his kingly stated
title, i>oweran(i government of this kingdom ef
Kngland to deprive and throw down ; but alee
the said late king to kill and put to deaths aai
the ancient govenunent of thi< hia kingdom of
England to change, alter, and altogether anh-
vert. and a misei-able slaughter amongjit the
subjects of our late lord the king tlirougjiiUi
kingdom of England to cause andprocnrayaBl
insurrection and rebellion against our ai ' ~
lord the king to procure, promoiei and
ing^m til
ot'his al
the font I
SB9] for High Treason.
Aod tlie B*ine mn^t wirkeil anil rl^f ittiib trea-
sons and trait: I / jr -itiS^
Aid |mrpos«' [id
bfiog tocifect, nr inr Sim Htnry * ihihmi, asu
ft! se traitor, ihrn and there, to' wit, the said
Soi»- "I - ,.♦ ^1,.. ,., ,t,.. ..>.,,.. .iVM^i;,i4^ ai ihe
I>;i inahciouslv,
aiii? ; _ .J -1. i ihe faCe diite
of Mofimoui ;i Jtussel. t'sqdre, and
Tliomai Ant night, arid divcri other
rebeN and traitors, then lately hefore in the
fiansh and ward aforesaid within the said city
^London, Ihldelv, uofai* fully, devilishly, and
traitorously, to have cmispired the death and
final de'ittriif'tion of our sain late sovereign lord
the king- ; he the said Henry Cdmish, as a
false irarior^ then and there, toVii the said 30th
day of May in the year aforesaid, within the
pari«h and ward in the said city of l^ndon,
taMy, unlawfully, wickf dly, and traitorously »
did nrimii^;*- fo tfac suid divers false traitors and
and there pi-eaent, That he the
:»tnis]i nnnlil Tk" aiding; and asfiint-
to be done, per-
1 1, a^iflflt tlie duty
-t tlje peace, and against
' ■ , Vc.
CYrrA:. How s^Mvesl thou, Tfenry Cornish,
art tKou i^utlty oi this hi^li'trea.son whereof
tiion standevt indicted, or not jruiliy ?
Corftith, Thi^ h an heinous eharge.
CaunieL Anawer ; you know you mofi an-
Cifrnhhl lam perfectly innocent.
CounuL Are you g-uiUy or not gtiilty ? Too
mtift take tlK* ^'^ '^*-'^^
Cornith. >
Cltrk, Cuii , wilt thou be tried?
Corniih. By tb« great God of Heaven^ and
my country.
Clerk* 6od icnd thee a qtiml deliverance.
L, C\ J. Jofttt. I do not know in what state
things are here in the court ; I ennnot tell whe-
ther there be a jury returned or not.
Cfrrk H e ift arraif^ed.
L. C, J. Jmei, Why doii't you go oo with
tbe^ury f
Cnrntik, My lord, 1 humbly pray your kwd-
ahip J I have aome in^und tor it —
L, C. J, Jonti, Y ou shall be heard in good
tiine^ Sir
Comrii. My poor children last night pre-
ferred a petittOQ to his mnu ^tv. and he hos
|il«aMd in refer it mo^t v to my lords
the judges; audi now j: : > <. application to
your lord^hipt*
jL. C, J. fmm. Have yon any anawer to the
p€litiofi from ihe king t
Ccmuh, It was referred to your k)rdship«
the jadgfi«| to ctintctder my case.
L. C J. ^tmu. We niay hear moine of yotir
biMiioeaa anon^ when Mr. Attorney and Mr,
Bolldtordo come: we wdl stay here tUl they
oofDC, to know whether there be any order from
the king to tlieui cnncfniing you.
Comuh. My lord, 1 hup4) it will not tie ofien-
life if I aboutd acquaint your lordafai|i« what
A. D, 1685, [2
usage ! hare met with since I have been under j
continemeiit. I have been under very do
contineinent, I h«id no notice of uty trial til|>l
about twelve oV lock on 8Aiurduy;'no friend^J
came to me till ei«;ht oVIock at night ; and t^\
liHil on lime for prepHralion lor my trial, M^
lord, these are huni thing i ; hut though I amQ
denied couuiiel, I tru«t in God I !>;hal1 notneedj
counsel, lor I ho|)e, if your lordt^hip pleases to ]
allow me lime, to rleur myself of all rtmtters ;*'
and 1 hope with such satisfaction to your lord -I
ships that > on will acquiesce in whutsoever M
^hsll lay Wtbre your lordships. I do noC^I
come to muke an harangtte and talk \ my*!
case was such, that 1 had neither pen, ink, noN
papt'f.
Just. Wit him. Mr. Cornish, Mr. Atti
and Mr. Solicitor will come, we roust heaftl
them. '1
L, C, X Jonet, You shall lje heard in your J
proper time ; it is a strange thing you will oof 1
be satisfied ; you shaJJ be beard, I tell yon, ioj
your proper lime.
Mr, Nortk. We have arrai^s^m^d one Femley^
if yon ptea^ to try him, who (with Uing) wai
brought to the bar.
Clerk. You the prisoners at the bar, tlioi4||
persons you shall hear calked and appear, aret^ ^
pass between our sovereign loni the K.ing, anC
yon^ Upon your several hves and deaths : if y*
will challcnife ibem or any of them, your Ui
is to challenge them when they come to tl
book to be sworn, l>efore they lie sworn*
Crtfir. 0*yes 1 All manner of persons
commanded to keep sitence upon pain of impri^
sonraent.
The Middlesex Jury: Nehemiah Amo!
Francis Stevens, Richurd Fisher, John How<
let, John Vigurest, Hamucl Birch, IVilliai
Thomson, William Head, Samuel Peac(
Hicbard Fitz-gerrard, Richard Bromfield,Jol
Uaynes.
Cryer. O-ycs ! If any one can inform m j
Jords the king's justices, the king's seijeant, oir
the king*s attorney, before this inauest be
taken b^ween our (Sovereign lord the king and
John Fcniley and William Iling, the prisoners
at the bar, let them come forth, and tliey shall
be heard ; for now the prisoners stand at the
bur u|Km their deliverance; and all persona
that are bound by recoirnizance to give evidence
against either of the prisoners at the bar, let
them come forth and give their evidence, or
else they forfeit their recognizance, and atl
jury- men of Middlesex that have appeared and
are not sworn, let them depart.
CUrk, Het W illiam Ring to the bar, aiid Kt
by the other.
William Ring, hold up thy hand* YtNitliat
are sworn, look upon the | - * - -■ -* » f r q
to bis charge ; he Htnnd ?
of William Uu'*' ^ ,,,, •.,.i.^ , ->*f
charge is, to * '^vtimw b» begiuhy itf
the trcoKon wIil i - . , l. aiaiidt judicltdi ur m^
guilty, 5fc.
I
S91J
I JAMJES II. Trials ofFernlej/^ Ring, Mrs. Gaunt, Sf Cornish^ [3».
Mr. Fhipps. You, the g^ntleiDcn ttiat are
swoni, tbe prisoner at the bar, is iodicted t'ur
tliat knowing one Jo^ph Kelloway, and one
Henry Iviwrenoe to be false traitors, aud to
have levied war against the king* ; on tlie 20th
of' July, did harbour, conceal, and relieve those
traitors, a^j^ainst the duty, 'kc. Upon this he
hatli pleadefJ, not gnilty, ^tc.
Alt. Gen. (Sir liobcit fejaw^ver.) GeoUe-
xnen of the jury, the course ot'^ our evidence
will be thus : Kelloway and Lawrence were in
the late rebellion in the west, in the late duke of
Monmouth's army ; and atU'r that battle when
tbey were overthrown, they came up to London,
ami the.|irisoner at tlie bur receiveil and com-
forted tbeni, and not only provided a lodging,
and meat and drink for them, but aiteru ards
provides another lodgfing for theui ; lor tliis he
knew, ibr they were very merry, telling the
whole stoiy uf the fight ; and notwithstanding
this he entertains them. We will first shew
you the record of the conviction of Kelloway
and l«awrence, and tlien call witnesses to prove
the other thiiit^s upcin the prisoner. (The re-
cord produced) Mr. Harcourt sworn.
L, C, J, Jones. Is that a true copy of the re-
cord 't
Mr. Harcourt answered yes : whereupon the
clerk reads :
Joseph Kelloway stands indicted by the name
of Joseph Kelloway of Taunton, in the county
of S<inM:rset, yeoman ; and Henry Lawrence of
tlie same parish and county, yeoman ; witli a
great many others.
X. 6*. J. Janet, 8ee what they have done.
CUrk, They are indicted of treason for levy-
ing wiir ugainM' the king, and they have con-
fcssf il the indictment upon their arraignment ;
and the judgment upon the indictment, is,
' That the sain Kt-lloway, and the rest of tbem
*• there, should be led to the prison iVom whence
*• they Ciinue, and from thence to hv. drawn to
* the place ot execution, and upon the gallows
* th*Te to \m hanged, every one of thini in the
* said itidictinent, and hving to Ik; cut down, and
* their cut nils to !m.* taken out oi' their boilies,
< their heads to Ite taken oH' from their bodies,
* and their li'Kiies divi-led into four quarters.'
Alt. Gtn. This shews they were traitors.
Now we will ^hew' you, that in the mean time
bet we II thfjjr treason and eonxirtion, this pri-
soner 'lid p cf'ive them. Call iMr. Barrington.
[Who was sworn]
Mr. Jiihii. Mr. Harrington, what do you
JkJiow <-nn(:LTning Mr. Hingi*
liurr'ninton, u it please you, my |ord,
on the Jlth of July Inst 1 was abroad about my
in<iKter*s business, and in the mean time when I
was absent, as I was inlbitned, there came Mr.
JtiuLi", w iiii lives in \Vych-«itrect at the sign of
tlie bible ; aud wiien 1 returneil, 1 was told that
31 r. itini; vriis ut our house to speak with me,
and that there was one Mr. Lawrence there at
Mr. King's nt the liible in \^yc!i-sireel; and
when 1 can.'.' tliere, there was .Mr. Lawrence
ftt Mr. Hiug's house ; and when 1 came to the
liouse on the right hand, there was iiis wife, uti
I uke it : I asked for Btr* Lawmice, and the
was a httle at a stand. SSaid I, I uoderataiHl
Mr. Ring was in such a place to iofarm me
Blr. Lawrence desired to speak with me. Upon
that he shewed me where be was : J wcot up to
him, and he was Uy ing upon the beii very weary
aud tired ; and when I had been there a-while,
there came in one Kelk>way , aud they said they
came both out of the west country, and came
on Friday night, aud I saw them on Saturday.
If it please your lordship, I called there alter,
aud knocked at Mr. Ring's door, and tliere
came a woman and made answer, that tbey
were gone from thence both of them, and that
they ivete to go on ship- board to aee aome
friends.; and I called there on Wednesday the
16tli day at night, to see Mr. Lawrence at Mr.
Ring's house, aud BIr. Lawrence told me be
was going to the Pewter- platter in SL John's;
aud when .Mr. Common Serjeant came to exa-
mine me about these men, I made a trae con-
fession, that tbey were at Ring's and wmoved
to the Pewter-platier : and wiien we camels
search at the Pewter-phttter, at fint they did
not know any such men, until! we deaoibsd
them. Then they oonfeased there were sack
men there on Tuesday and Wednesday night,
but not the night before, which was Tjbaimy
night. From thence we went without Temple-
bar to Mr. Ring's, where they weie at fint;
and Mr. Crisp and 1 went together to enqaiie
fore these men, and there was a woman, which
1 think is Mr. Ring's wife, I cannot tell. Im«
quired for these men, and she made ansvir,
that they were not there at present, and and
she could not tell at; present but that chcy
lay there the last night, which was Thwaday
night ; that was Ring's wife, I take it, ahouU
say tbey were there the night before, so after
that she had owned that they lay there on tha
Thursday night, she asked roe what this gentk-
man was ; so I told her, a friend of mine, feio
aiterwanls we were at the Castle-taTero with'
out Temple- bar by St. Clement's church, and
M r. Common Sei jeant was pleased to aend ftr
Mr. Ring to examine him about these am,
tvhat lodgcra he had in his house on Fridi^
night, Saturday niglit, Sunday night, and Man-
day night. Mr. Ring knew nothung of aay
men that came out of the country ; so npaa
that, he denying it, Mr. Common Seijeantof"
dcred his house to be searched, and in i
ing, they found a paper upon the chamber-^
dow, that was brought to the Castle-tavcn,
where Mr. Ring was, and the paper waa pro-
duced, and Mr. King would confess mrtniag
till such time as they found that paper.
L. C. J, Jones. See, is that tne papsr ysa
speak of?
Barrington. That is all I have to aay» if it
please your lordship.
L.C.J.
Jones. Did you see them in thecoma
pany of Ring ?
Barrington. I did not see him whea I mm
at the house.
Sol. Gen. (Mr. Finch.) Yon say Mr. JUof
woukl ooofeas nothing till such tiBM aa tkm^afm
SS8J Jitr High Treaiomm
was fotiiMi; wkat lild U^my aiter tite paper
liinit was hj, what did b«!soy
iifKiji iiMfuticiirg* that paper f
1. C. J. Junfj, Wiw lb« piiper shf^wetl t0
Hftrrini^/on, I think nol; be would bare
set« it,
Justici^ IVithim. You Bay lie wnuld oonfess
nothing itUtliat jf^pir wiki producetf.
Barrington, Truly, I curi sny noiiioreof itt
Mr. Jimcs. When the paper was produetHl at
ttit; C.'aHtle tiivcrti, what did he say then?
Jn^ko mthiiu. What did Htuj; iay at the
(,- ....? ^ '
>^ I cannot remember, Uut that be
di
.Barrow. [Whowas sworn.]
},.ifr>'{j- .^i<, i hcnrd liint;' confesa to niy
ford iDuynr h\ July In^t, thut hi:! lodjfed Law-
retrce and KtHowny, and that Lawrence and
|kell«>uny did teli him, that they hnd been holh
in the lilc uestern irhtiUiH:! iu Momiir,:uh*s
amj^ ; and ihat a(\ci- that 1 eoi
two ur three ingr^itii; this I i. «c^.
CWncf/* Fray sprak il again,
Burroo\ That Idiwrt'iire and Kdloiray had
Mr. RuijjT, they had heeii in the iaie
Estem rrlwlhon in Monmriutli*^ army, and
lltaJ he had hidged them two or three nights in
but own hoiiKe.
Cmmmm >• " ' >t did you hear him amy
oOfusccxuiMr /
M^rro&K i lit rt- was some la^Ik ooneeniiiig
llerleor lluiJ^.
kX. C. i./. Jor^cs. JJid he }e«y he k>d^ed tliem,
rikey had told him tluit Y
^BatTQu, AHiT that. Tltat let all I ran «ay.
^CUrk. Cull Mr. Criap.— [ W ho was s»* oi n. ]
^ImuiucL <jiifC' my h>rd and the jury an ac*
count of what yo" llnow concerrun^ Mr, King*.
Crtnp. 1 wont to search Mr. Riiig'i hon^f ,
MuDy ii»rd, and In the window there vtom that let-
l|^ under Mr. |jiwrnice*ft own hiind, Ki^akd
lit V for a h«»r%evvhich
I . anil k4"t ftl Now-
tx
in ;
' iiett
Mvtn \ i>tiii ui lniKl
ami he owned he
-' .1.1 1- '1-Uot
hui'.
we.bh'
imi tiiii , ., ,:,.
know, bni Ihdt he did nu
And nlicri he came to i .i^\
J. "mI KelUiv't I
hi^ \\fc*re exum • \
h;id gi%tin to hiiu, tvlMit tiiey tuine to hi»
h4iu>*c ; tiiev told him after tbeduke id ^lon-
mouth wa^liraien, tiiry ran away la Ijondnn,
and KeMowftv bfiii^ iim rouitin, brought l^\^-
r« him ; ihey told htm the dnk<9 waa
h' ! lay tiiere Pridxiy night, SAliintay
IV ly nifht, and Monday nif^ht.
He owned tie knew Mr. Kel-
L* C, J. 'vHUiwav lind hciaailltiM
ko'a artuVi <"'^ u.^ he was ocaAen f
A. D. 1685. [39*
X. C. X What did Riofir say opoa It f
Criip^ Uitt^ amd nothing there to it ;
confessed hi; lodged Uieiii two or three ni|;hlA,
CaUHicL Swear Mr. Hardisiy. [Whicti^
WAS tlone.
Att. Cm, Mr, Uardisty, pray w lU you i:it#^
my lord and the jury an accomtt of his exaint' "
nation ?
Uurduty* I wns directed to attend my k>r<l^
mayor at the examination of Mr, RinjV, th^^
prisoner at the hnr, above here in the rnonj,!
and did accordini^ly ; and upcm examiuationf f'
my lord, he did make this coufettion, Thil "
is the exntniuation) and it is as he gave it hiir
self, and siirned by himself.
h, C /. Jontt. And read to htm f
HardUty. Ves, half a doxen timeSf I
Ueve.
Common Scrj. My lonl, npon the appearing
oT Laurence and Kelloway belbre hiui then^
he contested ulL
The EXAMINATION of WILLIAM RING,!
of the Pamh of St. Clement Dunes in IbfJ
Counlv of ^Iiddleaex* Taylor, taken befon
the I' urable 8ir Jameat HmithJ
Ktii^i 1 \Jayor of the City of Lou*
don, this l«ih day of July, 1685, wh '
bein^ examined, aaith as folioweth :
" That Joseph Relloway, and one Hcnr
Lawi'vnCc, tlie said KeHoi\4y*s acqii
came to thist e^&mtnant's house on : r '
Siiturduy last ; that this extiinmant oki j^k u^J
Kfiloway (beiii^ this exam i nan t's kinRnuinVl
what did di ivc them to town f That tht y Into^
i[m eAnminant, that they went to Monmouth J
thut he was routed, and that brought them fa
town, or to that purpose: that they v^eixMii
l\loiunouth's army. That night they came
he this examinant told them, he was un\fil]in|i
to lod^ them ; thnt he thia examtnnnt dijf
Iodide them all* r 'orse, Kator
diiy, and Monil., , and they < - a ]
wiVb thiw cxnmmiint ; that they weit: at hiS J
house on Friday nioroin^; but where the
lay on Wediie^Uy and Thur ' ?h h4»|
knows not. Hauh, tlmt I^iv^ c thi§1
examinant to a Glover in St. i>.jj i:i<nuii»ew*i
('}o«e, who was a journey man in tbo house, i
this e!i:itninant «U|in«iMetfi, anil told the itmste
of the hou^e, that there vMis a km^uian ol iii^l
journey-man's would sj»eak with his juiirnry«
man. Haith^ Kf.'Howay and bin actpuunt.inci
t'dd this examinunt, that they Mt thnr bun
ai Neu berry. Th&t a note beiof^ |>ro<tnei'd
directed to this exanjinnnt, to flcfirrr several
|!;ooda HieneiH ntenh inme
ufton tlie said ootr*. ' . iha
b«Mhi4 e\ ...s>4ut Uit Hi Hit C'atuli
Tavern n^ ne in Flm^t- street, and i
Bond br<>
mentton*'i' s]
tbn note "^'j; *'* jiKUfj
Hooper, »l was there
»Qt|triiT ci -.» ....,.., ,..,,. v:4f*eeted to ituet
Jamca lioo|ivr, whotbrmerly told this exami-
395]
1 JAMES II. Truth tfFertdey^ Ring, Mrs. GaunU Sf Carniihf [S96
narit that he went hy the nume of Hnarne.
Tiiat ii. iuf; in <hscoiin»e with James Iloo|ier
about ihti time of .he laiv duke of MoDinoutli*!<
laiHJii<, Jauifv Hucifitr tuli] tliis examinant,
that his the saif) iSo«>per'8 brrither was with
the fluke uf Monuiouth, and tliat be the saiii
James lliwppr wnuhi ^o to him the said «}uke,
or to that |iur[)Osc. Further, this examinunt
saith, that about a fortnif^ht ago be carried,
accordiojB^ to a note from If oo|ier to that pur-
pose, to a joiner's house in Ivy -lane, London,
a cravat and a pair of cufls, and tbi^n enquired
for Hooiier of a woman of the said house ; and
•aitb, that then he this examinant did speak
with James Hooper who lay private tliere, be-
cause, as this examinant believes, the said
Hooper was C(incem4-d in the rebellion. Saith,
he hath not nvcn him the said lluopcr this
fortni^rht, nor lufard from him otherwise than
by the note now produced. Will. Ring.
** Taken b( fore t:ic Sir Jumcs Smith, Lord-
Mayor."
Att. Gen, Call Mr. Uicliardson, to prove
that thf.*se wcriUhe same men that were car-
ried dmwi. [Who was sworn.] Mr. Richard-
son, pray ^iic an account, wht'thci* thc^e were
iha men you (mrrifd doivn into the West.
liicfiuriiynn. My lord, those two persons,
thatis, Josrph Kelluway and Henry Lawrence,
that were comniitlcd for liein^ in the late re-
b(*lli(in, 1 ciirrif^i them botii down into the west,
where they were both convicted ; one is exe-
cuted, and the other has a reprieve.
Just. IVithins. Henry Lawrence was cap-
tain Hunt's man. .
Richardson. Tlie same, he ran away with
hi<t horse and anus.
/-. C. J. (Jan you 14:1 1 thrse were the same
nn'n that wvre present at his rxauiination ?
iiii /tani.t n. The very sanii' men ; tln^y
Win; i-oiiunittcd at the sam«« timr ; he was
examiiicii In li»ri; them, for thi-y were all com-
mitted at I'll'* same time to^eilu r.
L. C. J. What do you say. Sir ; you the pri-
soner at the bar, v hat do you say for }t)urself ?
liirjfi, I did not understand w Iiat they were.
L. C, L. You knew tl»e. prisoners, one of
them was your kinsman.
lUnfi. f did know hiro, but the oilier I did
not know ; 1 did not know what design they
had lieen up(»n.
L. C. J. Youi^ own examination savs. you
did. • '■'
Rinf!. Then my examination is wrong^.
L, C. J. Hear, hear airain : You did receive
them, and then they told you that they were
in Monmouth *8 army, and that Monmouth was
beaten ; and afterwards you <;ontinuod to har-
bour them in your house tlirce nights.
Just. Withins. And dined twice with tliem.
Ring. My lord, I Derer heard of it
L. C. Baron. That gentleman heard yon
■ay, they had told you they had been in Mon-
mouth's army, and you lodged theno after.
Crisp. YeSy my lord ; and when we were
thcrty tbt woman would not own them.
L C.J. Why did you hide thetti in yov
house, and nf)t conless it ?
Rinfi. At first I did deny it.
Counsel. Yes, and did dray it, till Lnwienee
and the other man were brought before yon.
Ring. My lord, what I did was ignorantly
done.
L. C. J. Did you hear your examination
now read f
Ri»g' I heard roost of it I bdiere.
L. 6. J. Pray let it be read again.
Ctatntei. It was read over and over fbor or
five times.
Uardisty. He was upon it, I believe, an
hour together : it was taken first in parts, and
as he recollectcfl himself it was compared, and
a norwards my I«ord- Mayor desired him to
consider with' himself: and then the examma-
tion was written iair over, and he signed il^
and it was rtad several times, six or seven
times.
Ring, 3Iy k>nl, I do acknowledge 1 did
lodge uiem, but I did not understand what de-
sign they had been upon.
X. C. J. But you see here yon hnre sc-
knowledged they said they were in the amy,
and you did lodge them ailerwards; they were
of Monmouth's party, they had toM you so.
Read that |»art again.
IlurdUly. Joseph Keiloway, and one Liv-
rcncc the said Keiloway 's acquaintance, cane
to this examinaot's house on Friday or feSstar-
day last; that this examinant did aak KeUo-
way, being this examinant's kinsman, what
did drive them to town ? That tliey tM this
rxaminant, that they went to Monmontb, tfaet
he was routed, and that that brought theni to
tow 0. — Ring. I never said that word.
Just. Withins. It is under your hand.
Ring. If it be under my hand, I never
said it.
Sol. Gen. Was tliat part read to him ?
Harditty. Yes.
L. C.J. Read on.
Hardisty. lliat they were in Monmouth's
army; that the night they came, this exami«
nant told them, he was unwillins' to lodge
them, and that this examinant did lodge then
after this discovery, Saturday, 8unday, and
M(»oday night, and they dined twice at thv
examinant's house.
1h C. J. What do you say now to this? .Caa
there be any thing more plain ?
Ring, i do arknowledge, my lord, I did
lodge them, but I was not sensible what tiM
issue of this business would be.
L. C. J. You did not know, that to hai%o«r
known traitcirs was High-Treason.
Ring. My lord, 1 don't know whether tfi^
came from Alonmouth or no.
L. C. J. It is no great matter whether jsa
do or no ; they told you so.
Ring, I never heard such a word from thoM*
L. C. J. How came it to be put m yoor C9^
mination? . .
Ring. I don^t know, my lord, when ilriMii
taken 1 was in *a maze. I thmk the pmUk
307J
Jbr High TroftAs.
kiww w«ll enotii^li, lh«l I net er kept mny tticb
iMjfnpcinj/, nnr had atiy sneh tlciti|Gti^«
JtisL Withiuf. He ctjntcssw it oter niglit,
louses it tt> h' "vit iiuvvn Tifxt *hy» and sets
his liaud to 1 1 ran bv uiore pUin.
I*. C.J. I ugumcnt you wttt-
tiot In su<Th I hai you had not tijc use
of yciur iiti<'« '^^ ; i'ur yr>« confessed tlie
Bvaue tliinif ovir iit^lil) And yuu had ttuie to
C4}iii:idi!r of it all nib;ht, and ynu camo the next
nionuri^, and tli<»i confe&s^sd aauovr atis writ*
ten, Hiid |>ut yuur hand to tt.
Hiag. I wah ordered to put my hand to it.
L, C* J, That is, if you acknowledged it to
W true.
JUttg, I did not know what was put down.
JusL Leviiti. Ttie mailer ia so plain, that
nothing^ can be tni^re* When they ciamc to
you, thoy inlorined you where they had bciiat
mae aflerwardti you were unwilhntf to lodge
Ihein ; you knew therefore Uiey had been ifi
ibe rebels army, and so the matter h plain :
and lor ous^ht'i rtiu hear, tfii>» in not the t^rst
time you have hnrboureil such men.
L, C */. Thtre ia another thintf touching
one Hurhf ; but you are not I'harged with it
in the indi€:trnf'nt, and so we do not trouble the
jury with any evidence concerning that .'* Ilavt;
you any more to atay F
Rinj^» I do Acknowlcnl^e^ my lonJ, that I
Iodised them ; but I did not undi^iiitaiid any
thing' else.
L. C. /. Why 1 did i\ot yoa confess it?
Hift^ T <tiil I lilt conleifi it.
Ju»iit And you shitted tod ^ng for
them ui> ^ere kuowu to you>
Ri^' 1 did not.
L. C. J, Gentlemen of the Jury* the pri-
•ocier ttandK iuittctcti of llii^h-treaMiti for re-
ceiring Joseph KcHo wuy and flcnry Lawrence,
who were traitors, and knowit io him to be
traitor*, and h«rt»ounii^^ them in hi% house, and
giving them entertain u I ^ i omfort: thit,
gentlemen, its dearly imo by law j
and though this man hKu-vrn h^ ^re not iu actual
reMliofi, vet if he do receive any that he
known ^' '"'v^ ^M^en sOf he \u et|uairv ifudty ;
b« ifl n < I aitor by the jud^ueiit of the
law, mi i _ V he would now prt^ttnid hiii
iguorauee, tliat he itid nut know that they
were in the army, or, if he did know they were
io the anny, that h« bad iucurrcd to great a
dinger AS tfje toHbttore of his life, which now
lie siauds as well as he i^u to defend ; yet it
does mppeor plaiiily to you, not only by his own
confeiaioii imkett upon hj^ exauihuition, but
liJc^ewiie by the testimony of the witacsscs, who
wereiir«Nmi ' \it did co(ifi?s<»
ihaitbmm n ^.ih him, and
itfktiowledgeo umv ttjc^ vwm m Monmouth's
vmy, aad tlMl b^ wa« mlcdf ftnd that yet ht
did eotertain and rec^iv" t\,.>,,^ 1 1 .. Wrn wit-
luau indood does not : i^, but it
k wy tnucii induciti. Lf>at is
givea more expciM i' for
« ■»?• thet he was at i-u-
fttjn^ for thfSD tk^t^ though he did not see
A. a leasi
htm at all, but his ]>eQ|de ; and they no^ m\f
did ouafessthat they hid togged tliere» but that «
thert! wsLH a lodgping prorided for litem else*^
where : but however^ it' that were unite
aside, aud not taken at all iuto consider
yet what is testittrd by the otlier witne
and upon his own exaniitwtiion, makes it e^J
clear mid plain asi can be, that he dtd reeeiv
tbeive persons into his botifie, and (Mimlort theix ,
and entertam theo), knowmg them U> have
been j^uilty ol i< ! <mmi« ttoU is, to ha?^<]
beeti m the arns louth, of that p*rtyj|
aud thiit tilt V r I t 10 i.oiidun^ aud went awajTi
from the \^ ^ i i> hosc he was beaten ; SDtll
there is an eAjite^^mu in the eiaioiniutoa to tlia%|
purpose ; so iUa I take' the itKhotmcnt to i
»erv full and clr^^*'* v"^^*-d upon Imo; aud ili%
iH not Uijf i^iior.' Ia\% that wdl ctcns
him, that is, hi. ^ui .ice nf ttie danger thagi
he Ituth incurred by entertamtng these people |' J
although you cannot but take notice, that h%]
wax in some dread au<l ft5ar that it was an of'«>J
fence to ilo so: for at tir»t he says, by his ex*«|
miuatioti, diat he did rei'use to entertain thcio il
\s hich kim^H that he had some considcnitiou <
thi: danger that he might mcur by reoeiviii|
theru : and vet after this plam discourse <
their», that tiiey v\ ere in (he army« he ente
lan)s them. That they Were the dame me
that were in the army, ajipcars plainly: fo
though at first he did deoy it, and did suind il
it, before he was confronted by the men, thej^l
being present ; yet afterwards he did contesi,
that they were the men that were enteiUuxed b|
him ; and that they were the same men, do
appear by th»^ testuuony of captain Hichardsf
wlio saw them, and afterwards caused them to
be brought down to tlie West, where eoe ot*
them was executed for trcaeon. So 1 must
leave it to you, geatlefDeci. I think it is a rery
plain case«
Ring. Here is abundance of these
that I know nothing of.
Ctftimtl Set Johu Fernley to the bei^l
[^Which was done.] I
Ciirk, John Fernley, hold up thy hand^
You that are sworn, look u|H)d the prisoner*
and hearken to his charge : He stands indicted
by the name ot John Fernley, *cc. (pr<mi
untej
Mr. Phippt, Thifi is an iedictmetit of high-
treasfju agum^t John Femley, the prisoner it '
the bar: a sets forth, that the said John Fern«
ley knowing on« Jioie^ Burton to be a tnutor^l
and to havo conspired ai^aiust the life of thfli
> nceol the said Burtoft '
and giive him meat
6' your kirdship, and
V*" ♦li'^ ^^f-Uoner ataiid*
harbouniig
. of treasoa»
he k : rudty of treason.
And ! H.e will be tliist
we wdl pror« that lius Jamet yttrtooitood
S99]
1 JAMES II. ' TriaU oJFcndey^ Ring^ Mrs. Gaunt, Sf Cornish^ [400
ontlaired for treason before lie committed a
neir treaaon, when he went into the Weit, ami
•was there witli Monmouth in the late rebellion ;
and though, gentlemen, the very ouUawrv
•against the said Burton is enough to satisfy
.any. man, that this man could not be ignorant
•thai he was a traitor, for no man can imagine,
when a man stands out a process till he become
.outlawed' for high«treason, that any should be
-ignorant that he is guilty of treason, and that
it would be very dangerous to receive a man
afler that, without any more evidence : but
this Burton, afW he w as out-lawed and fled,
came again, and was in arms with Monmopth
in the rebellion ; and ufier their defeat he came
>up 10 town : and Fernley, knowing he hail been
then in the West with Monmouth, he received
him, and harboured him ; and this we will
-prove by n ilnesies. First, wc will shew the
. record of the outlawry.
Clerk. ^'^ An Indictment preferred against
James Burton, and divers others for high-trea-
-ton, tor which the said Burton and divers
others stand out-lawed, by the return of Sa-
muel Dushwood, esq; and sir Peter Daniel,
BherifTij." This is the record itself, my lord.
Coufisel. Swear Mr. Ward. [VVfiich was
«lone.
Just. Wit fans. Look upon it, 3Ir. Ward ; is
that the Uccord ?
War/i. Yes it is, my lord.
Just. Wuhins, Pray see when the outlawry
.was.
HardiMlif, Upon Monday next after the feast
of 8t. Martin, Bishop, the said Uichanl itum-
■ bold, Richard Goodenough, Francis Good-
^nouij^h : [ Here are the names of u great many
men.]
Ju&t. Wilhins. Is James Burton among
them ?
Hardistif. On Monday i\o\\ afttr the feast
of St. Michael, the suid Richard Uiinibold,
James iiuitun, Richard Nelliiurp, aru out-
lawed, and every one of them is ovitiawed
it is November was twelve-month.
Call J ames Burton . [ AV ho was sworn . ]
Mr. North. James Burton, stand up tliere ;
do you give my lord and jury an account con-
cerning your being in the \> e«t, and your
being enUirtained here at Mr. Fernley *s house,
with all the circumstances.
Burton. 1 came out of the Wt»st into Lon-
don, on Wednesday night, from Moninoutli's
army.
. llaJ. What Wedoeijday night ?
Burton. Truly I have for-jot the day of the
month, but it was about three weeks at'Ur the
rout, and 1 came home U) my wife and staid
two nishts, and she was not satisticd I should
be there and went to endeavour to get a iodyr.
iufrforme for two or tUret? ni^rhu ; ami slio
^nt to iret leave at Ui\ Fernley 'h lor iiie to be
Aerl twf or three nights; a.ul 1 went th.iher
cIo Friday night, and on sabbath day i» the
avoiinir i was taken there.
'^LOen. SpeiJ' «»"«!!' «y.i5»S"^""" out
. . Burim. On Wed^day wght 1 »«eoot
of the country! after I had been in the amy ;
I came home to my wife, and staid till Friday
night, and on Friday night she got me a lodg-
ing at Mr. Fernley^ ; there 1 weet about ten
a-ck>ck at night, and staid there tiU Sundsy
night, and I was taken.
Just. WUhint, Dkl you see Mr. Fernley ?
Burton. I saw him at dinner on Sunday,
and not before.
L. C. J. What acquaintance had you be-
fore P He docs not keep a public hou«e, does he
he.^
Burton. I had been gone two years, or very
nigh.
X. C. J. What was the occaBon .of your
going ?
Burton. My wife was acgtiaintiwi there.
X. C. J. What was the occaaion of jour
going away, and your absence for two yean.
Burton. The occasion of my ffoing then,
was, I was in the proclamation for oeititf wiih
Hum bold at the Alitre-tavem withia Aldgate.
Just Levins. Fernlev knew you, before, did
not he ? — Burton. He knew me by sight.
Just. J^vinz. Had you any acquaintSDoe
with him.
Burton. I lived pretty near to bim for a
while.
^\\sX. Levinz. How near?
Burton, I hved within two or three dooisof
him.
Just. Levinz. Did he know yoit ?
Burton. Yes, yes, he did know rae.
Just. Levinz. You came to lodge at bii
house on Friday night ?
Burton. Yes, an't please you.
Just. Ltvinz. Had vou no discourse tiD
Sunday you dined tofifetner?-
Burton. No, not till Sunday at dinner.
Just. Withins, Tell your discoume atdia«
nor.
Burton. My lord, I have forgot what al«
together the discourse was ; 1 had some dis-
course of the army ; he knew I was in the
army.
L. C. J. I would have you speak the tense,
so far as you remember of the discourse at tiial
tinii? with him.
Burton. The sense as far as I cememher,
was, that tlie army was routed.
X. C. J. And that y«m were there ?
Burton. He knew 1 was there.
X. C. J. How came he to know you woe
there ?
Burton. 1 believe 1 told him so myself.
Mr. Just Upon your oaUi, did he
know you tied upon the account of the Drocla-
mation before ? ^.
Burton. It is ItkJ he might know it by o!
It not hv mo ^
but not by me.
L. C, J. When
day?
were you takea? What
him before ■««•«
401]
for High Treason,
Burton. My lord, he was in thesltop all
Saturday ; be is a barber.
Just, ilithius. Yow lay pri^alely at liis house
All Hutunlaj ?
Burton. Yes, my lord, \mvu%e\y,
CtmKsd. Call Mury Biirtoti» * [Who was
a worn.]
Mr. Nitftk. How came thit man lo lodge at
Mr. Fern ley's bouse, can you give an account f
and why it wasF
Mrn. Burton. Because 1 thought he itah
twt stife at h'Mme; aod having acqumiytanc?
with [Villi. Fern ley, loilging pvetty near, and
shebcinsf a yoangf womaa, acid havini; cftil-
tlren, I had QCquuintaoce^ (gpoingr to and tro;
uud we Uarifig- a clo^ hou^e and no yard, I
had the privile^-e of £^oiiig' to dry hiieu Ihere^
so thai we bad acqUAiotaueef and a UltU? fa-
iniliaritv ; and beings act^uatuted, I thought I
Jniglit faatre eatertainment there ; that la all I
am m.
X. (f, J. Were you at dinner upon Hunday ?
llrs. Buft'm. Yes, 1 was at dinner.
L C, J. U hat ihscoune had tliey liad at
dinner ?
Mrs. Bttrlim* Indevd I can't say they bail
Miydiacourse, I was lery ill^ and laid me down
upon the bed and fell aslepp.
jL C J, YoQ are ujioix your oath.
Mrs. Burttm. 1 ktiow 1 anj^ Sir.
L. C. /* W bat dtSL*aurtie was at dinner f
Mrs. Burton, H hilst I wa^ eating, I did
not mind.
Just, Levins. You li^ed close by, why did
fiM aak lor a lodging thei e P
Mrs, Burton* We do not Live close by now,
1 live witli my daughter* I have no house
now.
Just. Levirn, She knew he was your hus-
band, why should you Lodge your husband at
another bouse than where you lodged your-
self?
Mrs. Burton, WhaA was it you add, my
lord?
Just. Levimx. Sure you would give the
ivoDian some acoount, why you lodged your
husband at another house than where you
lodged yourself.
Mrs/ Bur/ rm, Bhe was not altogether a
•Iranger, and upon the aceonnl of the pro-
damatioD there were noneoftbeoi stmu^ors.
JL. C. J. For whotn did you a^k a lodging?
Mrs* Burton, For my husband.
Mr. h^orth. Did you speak with Mr. Fern-
ley himself?
Mra. Bttrton. I did not speak with Mr.
Femley himself.
Mr. North. Oa Sunday you saw bim at
dinner ?
Mrs. Burton. Yes, I saw btm at dinner.
Just. Levin:. Had you any disfcaurse with
them ibout tlie p^oolaination ?
Att. Oen. AMCiiyour husband's going away
vpiMi ihsf prochimation P
Mra, Muriom, Ati*i please you, my lord, my
djstrcas wa!i so great, thmt I was hardly in mv
•inses to discoun« with any body ; but, 1
VOL XI.
A. D. 1685- [402
thank God, I am now in my senses between
whilei.
Att, Gen. Had yon any lUsoourse with your
neighbours about that procslamatioo your huai-
band went awny upon ?
Mrs. Burton, t had not| indeed.
Then Mr. Rcynoldi was sworn.
Mr. ^ffr*A. IVIr. Jleynokb, what do yott
know concerninar hU. Burton's being lodged
at Mr. Femley 's house t
Rtii/noids. Towards the bf*ginntng ol' August
last, hearing that there wi5rc sneral that were ,
in the west lurked about Happing, J took the]
Lieutenant of the Tower* a «v arrant, and we
had some intimation, that a suapectad person
lay at Mr, Fernl#*y's house ; I went on Sun*
day ab'^tt eight o'clock at night, and took Mr,
Burt(»ii in !Vlr, Fernley'« house.
Just. Wt/hins. Y ou took h im tb ere, did yoiif^
Hti/notdi, 1 itMik hira there, my lord.
Alt, Gen, Did yuu sp^ak wRh Fernley be*!
ft>re yon took Burton ? 1
Re^lds. I took Burton ; feind Mr. Femleyl
heitig master of the houfie^ I wisHieil th^: con*f
«tabie to «ieeure hiui tor harbouring btm.
Ait, Gen. What did Femley my ?
Remolds, Says I, Mr. Fernley, how c
you to harbour Mr. Burton thai ih in the ki
proclamation ? He i^ a traiior, you know^
Says he, f did not know it was Mr. Burton \ '
but my wife desirt^d me to lie oi^t of i
rbambef where 1 lay bofonc, that a friend of |
hers might lie there for two or three days.
Aft, Gen. Where did you tin d him ';'
Riynotds. He was in a room up one pair of |
stairs, ufi the chimney ; and wttite we wer^i
thert^, he fell down the chimney, with uU thfl
soot about him ; Mr. Fern ley was then oni
pair of stairs higher ; and J desired the Gon«
stable to go up 1^ see for him.
Ati, Gett. Had you no discourse with hitv 4
about the businesa of being in the army I J
With Fernley, I mean ? ]
Rej/noids. No, my lord.
L, C J. Did you hear no discourse betweesi
Burton and him 1? — Keynoldt. No, my lord. ^ [
Just. Withins. He was very friendly, to ti# J
out of his own chamber for him. J
RWi^idi. They were pot in two separate ]
chamheps, by the king's direction, till thej^ i
were sent to Newgate. |
Att, Gen. Didlie tell you on Sunday nigbl -j
that he did not know it was Burton ? |
Rtynoids. To the best of my remembrancev '
he did so, wlien I brought him to the Tower.
Att. Gen, And yet he dined with him OE
Sun<lay ?
Rfinolds. 1 looked upon it as an excuse.
Mr. iVor/A Whatday was Burtoo taken f
Reynaldjf, ft was Sunday.
Mr. North. What time on Sunday ?
Reynoidi. Suntkiy about eigbi o'clock at j
night. He bad been in bed my lord^ I beUevc | J
and before we could get open the door, 1 be- •
heve he got out of b«d| »nd went to get up th« '
chimney.
3D
:
403]
SoL Gen* Genii emen, you otisenre in the
rouHieofthe evidence the first we|nmluceiB
James BurtDD; oow Jnmei Biii*tan sttxidout-
Uw(h) for treason, and as be stands outlawed be
is not a competent witness : but nc>\? to
Ittke otr that objection wliich the prisoner
oug-ltt to make, but H-e make it for liim, ^ e
shew you here a pardon whereby that out-
Uwvy in dijicharged, so that he atauds now a
ver\' lt:ga1 witness.
Just. IVllhinM. Vou understand, gentl«n]en,
«Uai Mr. Solicitor mentiooB ?
[The Pardon jproduced and read.]
X. C /. What say you ?
Fernlej^, My lord^ I am char^ytM] for enter-
taining' Bnrton. I^Iy lord^ 1 knew^ nothing'
<if hiin when he came into my bouse till Sab-
balh*ilay at dinner. I a^^kerf my wife what
lime Biiflon came in -, ahe told mt^ became
on Friday night. Saturday was a busy day
with me,' my lord ; on Sunday momionf I got
up and went to church ; when I came from
cnurcli, I wont up to dinner ; and when 1 came
in and saw him, I asked htm, what in the name
of GufI brought him there ? It bath pleased
God, !iaid be, to preserve me hitherto; and my
wife interceded io far, as to procure me a
iii8rbt*s lodging", which I hojje may he no detri-
ment tn you. I wish it may not, said I ; and
at dinner I asked him, bow' he made his es-
cape? And he told me bow he did escape.
Says 1, What do you mean to do F Says he,
t!5ome friends w ill procure me a passn^ be-
yond sea. Upon ibia I constdcred with myself,
9tm\ dtscourse^l with him aliout the west, und
his escape out of it ; and atiout half ao hour
•fter we bad dine«], one knocked at the door.
Just. Letinz. What day was this?
Fertdet/, 8abhtilh-day at noon, sonoebody
knocked at the door, and they told nne there
was one would speak with me, and I came
down, and there was one Gaunt in the bhop ;
says he, is 3Ir. Burtr*n itilhin ? JMay I speak
wuh liim? Ves, said I, up I went, and Gaunt
with uie ; and when we came into the roout
they embracedone another, and were very gUd
to iut! one anotlier ; and Burton g'ave I\lr,
Oatint thnnks for a g^uinea be bad sent biio.
8ays Gaunt, Mr Burton, I am glad to see you ;
1 hope in a little time 1 shall bare a passage for
Tou beyond sea : »ays lie, if you had been
Iiere a while sooner, you might have gone ;
there are some gentlemen went away a while
ag^o. Says I to Mr. Gaunt, who were they?
He told me it was major ^^ and his son, and
another. Says I to Mr. Gaunt, do vou bear of
Fergtison? No, says be, I bear nothing of him
S9 yet, but in a little time I may hear from
liim; and Burton asked, when bethought he
might he {Toingf In a day or two's time, said
be. Says Burton, I have no money nor no
clothes/ Says he, take no care for that; so
be named sotne g^ntlerneti that were to go :
he told bim oi* colonti Danvers and major
Wildman. Upon this discourse, within myself
I did consider what way I might do his ma-
jccty • pieco of serrice : I thought it better to
Trials ofFernlet/^ Ring^ Mrs. GauHU 4" Cornish^ f 401
fi>rbear, and not to seize him presently, till 1 1
had accpiaiutfd some magistrate ; and I did
t think in the morning to have gone to a justice |
' of peace, and have hud him apprebe
Burton, my lord, I knew was secure, I
coubl not cscjipe my hniid^. 1 bail no
of concealing b\m\ i bare ^vcral eminent
gentlemen to testify for my lo3'-jlt y, 1 thank
God, I never had an ill i! ^ hit ^
majesty in my bfe, only tli bath i
befallen me u^k>u the account ot my m :tv. t i
am as innocent as a chdd unburn,' as to anjj
thing againiit the king.
L. C, J. But he pbiialy told v lie
from the ani>v ?
Fernky. fie did acquaint me, my lord^ bel
did so; as soon as I saw him, I was startled ^i
I did look upon it as a thing sent from God Al- <
mighty ; for 1 knew, my lord, that there wai J
100/. for him ; I knew there was a pnyctaiDa- ,
tion out agaiiisi bim ; but as for the outlawry^
I knew nothing of ihat : a procUmation I koew 1
there was against bim, and beiuf^ a poor man,
there was no ohtigaiion upon me to conceal i
him, and ruin nivselfand tamdy.
L.C.J. What was the reoiiotJ, y<m ._
so kind as to part with your own lodging tvl
entertain bim.^ |
Femfty, My lord, I had quitted my chamber J
bcbre he came to the bouse.
Just. Wit/tim. his proved you did tl
his account.
FernUy, My lord, no body will offer to
Chat,
Xr. C X That you quitted your lu«l^Lng, and
that he came into the sauie lodging i« clearly ^
proved. ^^
Fernliy. My lord, my chamber waa flilol^^
above a week bt fore he cume, not knowing ol
him, for I had no thoughts of him.
L, C. J, Prav what servants hare yotif
Ftrnltif, Otify a Iwy, my lord.
L. C, J. Could not you have scut out your]
boy when be had discoursed thus treasonably!
wHb you, but keep htm in your house seven or
c t|>ht hours after you bad entertained him at
dinner.
CountcL Are you a congtable ?
Fernicy, 1 am a constable myself, and upon
the account of my o^ice I was the more se-
cure. J was certain he could not escape mj
baudjj, and 1 thought to do his majesty mart
sen' ice,
i-. C. J. How could you do bis m^cstjf
more service ?
Fernlej/. Gaunt told bini, be wailld come
again to him.
L. V.J, When did he come to yot* ? S
Fern ley. About half an bou r after dtooer. M
L. C J. But yuu sihould have seized Ittm
immediately alter dinner. How came tbifl mail
to take so much freedum before you that wtte
an otiicer, as to talk hiffb- treason ?
FernUy. My lord, 1 thank God, if I were
to die this minute, I never harboured atbooghl
againjst the king.
■
I
X, C. Huron, (Wiltiain MoDtagne, eM|,) If
J
Treason.
vnu bad had « loraf Yieart, yoa sboulrl liftve
KeptGikUDtt tf ^ou had any iliougtiU to hu\e
dooeit.
Ftrnhif. My lord, I will tell you why I let
Gftdiit u<>, because he prtimiseti to eoroe'&gmia
the next day
Z. C. J. Wmild ynu, heint; a coD^tiiKle, let a
niati g-o \\\mvi \m word« ttiat fiad confefeseil biiu-
aclf js'^uiUy of treason f
Fcfttlcif. My lofd» tf f did any iMog', if wot
ii;norantly. My lord, as foi- daunt, ^heii 1
knew tbcre wris a proclanialinn out against
Ihinven and VVddiityn, I hc^uraii; Gaunt dis
coursing about tlieir destgu, I Ihouglit (pro-
mising- lo comi* the pext day) to know how
they were to gp.
Juat I^vinx, For God^s gake, would you
tniat all ihin to your own breast f If you had
had an honcKt intention, you would hove cfone
to «nrfirfilHcen, and acquaiute^t ihem with it i
aoine (»t iho kiii^*i» justices of the peace, or
amiie of the privy^council, that «uch ptrsona
mould be at your house the next day.
L,C* Baron. By your own discourse, afler
\ou bad he^rd alt this dt^oounse, and atier
liurtnn had told you this, you could let him g'O
quietly to im owu ihaniber: If you had such
a de^ig'n, as you aay, you i^bould have first
teiied Burton.
Firntry. Another chamber ; no, he dined
in hi* cbHrnber, my lord.
Just, Withinit. i'<iu went into another cham-
ber from hifn. llaFe you any witnesses ?
Just Levin:, Thrv hnil a I'oufidencein vou,
oihixwisi.* Biiiton and Gaunt would not fiaye
talked vu freely before you.
L, C, J, There w«»» a great conBdence in
lodging him in }'i)tn' hooiie, bein^ a constable ;
no Unly would starch a constable's bouse. Have
you any wilneases to call ?
FtrnU\f, Mr. U' iWvsLin Rush, captain Had*
do<^k* [Who were called,]
L, C J, Did Burton's wife dine with you
atidbim? — FttnUy. Ve*, my hrd*
L. C.J* Where did you djiir .^
Fernify, In the chamber, mv lord.
L. C J, And was thit diacour^ concerning
Monmouth's bnug^ beaten in the West, at thiii
tifncof dinner?
Ftrnlty, The d&icourEe of it? Yea, my
kM:d, what diitt^urse yraa, was ai dinner*
Juat. Waa Burton's wife at darner, or
was ihcf upon the bed ?
F^rnley, 8lie dined at the table, ray lord.
My lortf, Kbe went to alcep when "^ Gaunt
came ID.
JiMt. Xevini^ Where did ahe sfo to sleep, in
the aaroe room ?»Frrft%. Ye«, my lord,
Xr. C.J. Where do you use todme at other
timtnP
FfmUy. In the kitchen, my lord. My lord,
when 1 came Iroro church, ib€ dinner wia sent
up tbitlicr.
' V C^ J. Woman, you arc ujion your oatby
r thut you ane obliged by your oath
I the truth, let it concern w hum it will ;
ibclWMiijfOtirliiisband atid tbia
A.D. ie85. [408
man, you cuuld not but be privy to ; there wa
only \ou three at dinner, yonr huihand, yuu,l
and f erniey , thi» prisoner at the bar : All tbtl
discourM.* was at dinner-time, how is it possib
that you should not hear it ^
S\\hi. Levint, Feruley himself owna ho di4
discourse with your hustand at dinner, that 1
came frum ilie rebels in the West.
Mrs. Burton, An't please you, my lord, Ll
did not hear. At I said before, 1 must say j
again, I did not hear.
Just. Wiihint. Nothing about Mori mot itb ?
Mrs. Burton, No^ not one woi-d, if 1 were t<>
die as J stand here.
Just. You were at dinner ?
Mrs. Burton* Yes, my lord.
Just. And this diacourac was at dinner-
time P^Mrsi. Burton, I did not hear it.
Just. Withini. What would you aik him, J
Sir f J
Femlty. What account can be civeof my]
life and conversation, how I haTc beuaired roy*
8^lf, and carried myself.
t, C. J. What are you, Sir ? What is yourj
tjuality ? — Huih. J am a distiller, Sir.
Just Levms. Where do you dwell ?
Hush. 1 did* dwell two years a^^o in Wap^
piogi but not now : I live now at Walthani* J
stow. — Officer, He is a ?ery (jreal Whi^.
Just, it' it htm. If he be a Whig^ he^ cannol '
be a little one.
L. C. J. How long have you lived at WaU
tham-stow?
Hmh, Two years and upwards, 8ir.
X. C J* That is long betbre any thing thai
this man is charged witnal.
liuih, I formerly knew the man, he was n
barber, and used to trim me : I ahrays looked
upon him to be a good sober man.
Just, WUkint, A Wapping-nMu ! a sober
Wapping-mau !
Hush, I hope there u» a great many tbera,
L. C J, That is all yoa say for him P
Ruih, I have nolhing to say to his fact . Hs
demeaned himself always well among bis
neighbours ; I know notldng of the fact for
which be is here.
Att. Gen. Did you know Burton?
BMtk. Yes, 8ir.
Att. Gen. What was Burton T was bene*
puted an houest man ?
Rmh, I never knew him otljerwise ; \ nerer
was in his company; I»koow he dwelt cIosa
by where I lived.
L. C. /. And you took bits to be' a very
honest man ?
Riuh* Before this: He bas iu>t been ao
lately, it seems. He is a perion I never bail
any company or conversation with in my liie.
Cryer, Captain Haddock.
Officer* He won*t come in, my lonl.
X. C. X Well, well, let him stay there.
Crycr. Mr. Dove.
Oficer, He won't come in, I cauH make bim
conie in.
X. C. J. Here are none that give any teati-
moay tor yoi^ at tefttl will, Wbil are yoti t
407] IJAMESIL TriaUofFernUy,Ring,MrB.XSaufa,isCormih^ \iM
acanaiitipd, tliai Um Jkmw Barton wm boC
only irutfty of the l»tB rcMUoo in tte wot,
but he was likewiie charged hy proccM vhli
being guilty of the plot at tiM Rye»he«ag, and
thereupon there were ancb proeeediogn bv laWy
that be was oatlawed, the record of whicfc «■!-
lawry hath been produced to yoa: so Chat if
there were no more, if yoo be peiaaaded that
be is the person guilty, whether M were in the
rebdlion In the west or no, that may
you to And this indictment, for tfoe priaQ
ceifiiig him after the rebelKoo ia tke weat^
knowiiii; him to liave cnmmitled tvaai
whereupon he was outlawed, it ei|aaHv BMbfli
him liable to the offence wbarewilh he is
charfi^ed. But, gentlemen, that ia nel al;
you ha?e express testimony from BntOB hnn-
self, who it seems was acquainted with bin,
and who had Bed from his ncighhoutheed, by
WhUtal I dwell in Wanping, Sir.
Just. Levinx. What traiw are yon ?
WhittaL A plumber.
Just. Levinx. Who knows you ?
IVhittal. I am well known there, Sir.
Just. LevinM, Do youjgo to church P
. WhittaL Here's Mr. 'Aoner knows me, the
(;ierkuf the Peace.
Tanner, Yes, Sir, I know him.
Just. Levins, Do you go to church ?
WhUtaL Always went to church.
Just. Withim, There were a parcel of them
that went constantly to church trimminglv.
L. C. J. Prisoner, what would yeu asK him ?
Femley. Only to give an account how I be-
haved myself.
Just. WUkim. Well, Sir, what do you say?
WhUtaL All I know is, he behaved himself
very well, and went to church as other neigh-
bours did ; and I never heard him speak agamst
the government.
Just. Within*, Did you know Burton P
Whittal No, Sir, he was gone before I came
to live there.
L. C. J, Have yon any more to say ?
Fernfey. This, my lord, may give some ac-
count, that I had no design against the govern-
ment. I am a poor man, niy lord, and upon
that account I owe a mat deal of money : I
knew there was 100^ for securing Burton,
there was no gain bv concealing him : he was
iiot a person could requite me, that I should
harbour him, and lose 100/. which was certain
for taking him : which, my tord, ahews 1 had
po design.
L. C.J, No, this argues you to be a stronger
confederate ; and tliat you were so firm to your
party, vou would not gain 100/. though yon
inifrnt nave it for doinr vour duty.
Fcrnley, My lord, 1 touked uuon it as sure
as if I had it in my |M>ckct. 1 knew nothing
of him till Sabbath-day at noon, and I did not
drsi;rn to conceal him afierwards, any farther
than to serve the king.
^ L, C. J. You tell us a story of yourself ; it
IS to no pur|>06e to try any priMmer, if his say-
ing must be taken for evidence : We will hear
what witnesses you havr to produce, or i*' you
can object to the evidence lliat's against you.
Fefnlci/. My lord, 1 own it to iK'triie, I have
declurcit more than the witnesses have said
against me : but, my lord, I am innocent in it,
God knows my heart, I had no design in it. It
was but six hours 1 knew of him-
Just. Wit him. You lay out of your bed be-
fore?
Fcrnlcy, My lord, not upon his accotuit; 1
Was a week before out of that bed, to prepare
It for my wife to lie-in.
L, C\ J. Is your wife delivered ?
Fcrnley. No.
You made great haste ?
the space of two years almeet, and vet heiO'
ceives tliis Burton into bia ho«se« I will ast
say, at the first time that he came hrta bii
house, it doth appear by any evkknce, Aat be
knew hiui to have been in the rebellion ia tbe
west ; but when he came thither upon Friday,
he WAS so kind to him as to leave hia eev
chamber, and to let biro have that for hia Mg-
ing, although now he gives yoa onodMrci-
cuse plainly frivolous and fidse, that ia, a fn-
lence of making way for hia wile to lie-io, whs
yet is not delivered. He lies there i _
day night, and dines with him upon Saaday.
Saturday perhaps might be a buay day, ih
there is no testimony at all given by any eri*
dence of any discoutse that was between thai
upon that day ; but upon Sunday, wheo tbcf
dined together. Burton swears, tluit he did tol
him that he hail licen in the went ih the lebd-
lion there, and he came thitber for i
This man beinsf acquainted witli this,
him to dine with him, and harboured
his houHC for the space of seven or eight 1
more, without bringing him before uiy jHtice
of peace, or any magistrate who had mnmoriiy
to commit him, although be had a peitiaahr
authority of his own (as he was conelahli^ ftr
tbe conwrvation of the peace ; yet he fbifelB
his oath as well as his doty and allrpnBio^ sal
suffers him still to remain there. It ialiwu.thf
wife of Burton dined with them, es BbiIib
himself says, and the woman coofeaam \ W
she was so busy at her victuala, thai Aa caa
remember nothing, she did not hear thatthMf
was any discourse concerning Monmouth. Bat
lest you should want another witness, for Bv^
ton is but one witness to that particular, yea
have him plainly confessing it hhnoclf, sslMh
is above a thousand witnesses \ you hart hlB
confe»inK that Burton did acknowledgohehid
l»een in the ^\est, and that Monmoutfi ««
routed, and yet he ccfetinnea him m hie h
nay more, this man doth appear to he a |^
I in whom there was that great confidcM% I
I another person, Goem, came, and he T " "
i. C. J.
FcrnliH. It was my wife's fault
L.C.J. Gentlemen of the Jury, this pri , , ^ ^^ ,
aoni r stumis indicted f:»r harbouring and reliev- I oooie into this lioine, and there ho
iAg one James BUrtoo, knowing hikn to hove | of some traitors, and the meaoa of
coiBmitted treatoo. GeoOemeB, jooare to he I away BwlnmlMfughhe had
A.D, 168S.
mdfU OmKhmm^ uhNt he t«tls ^ou, k, tbai be
dkl tncMi 10 diiiH*irer ; wl)«ii did he inlwd to
dincovcr? Me did mU dujcorer to iny bHljr*
before ihe tiiuu was upprtb^n^led bj aft otfictr :
hit ieH Guuuti who [ilniuly uppeaint to be as
•rniJil a imitor m could bv ia ibe world, to go
aw Ay intT^ly uptm his own parole^ without
titkmg miy cQUnc lo apprehend hioi. He fire-
lends he Pi Vk poor tiiiut, and he might hare
gaineiJ 1<>4>/. it he had di»«ofered him, nod
ftij^y lie wanld have dwcoverrd him to irnin
100/. But ihis is m strung arf^iitnent, that he
irpi rft^ in rhe rcbrUiijn hiriifaeU', aiid one in
ercatcMtt-m witk lUotn, thiit b<;iBfrftfoor man,
he troialiltiot do hh dutyi Tor wfaeeh l»e i»ig:hl
h:ivr a reward of lOOi. hut stiHVni him to
ttKtpe* Thiit b the ca«e, ^eiUir4iirn, ih^it is
hefore yon ; it' you believe he did kiiowiogly,
an ite himself iipofi the mutter doth eoofrtis,
ij^ife any comfort or relw^l to BurtrMit knowinir
him Ui be a rrbel, y»u ought tu dtid him
ginlly.
TlM>n the Jnry withdrew to coo^der theevi-
dctiec.
Clerk. Set ElizAbeth Gaunt to the bar.
[Which was dont^.] Eli/alx'th Gauivt, hold up
thy hantL [Winch slietliil.]
^^ I'hoii Mtundest nidif^evi by the ntmie of
Elizabi'tti (inniit^ wife of Wdliain Gamit, of
the parifih of N, Mary White- Chuppel, in the
county of Midd)e«4.'jc, yi*unian ; as a fal!»e
truiiur a^fist *mr laic flerpue lortl Charles the
•erninl, by the srracf of God iier then natural
lont ; fi*»t h:ivin|,$' lit*? fear of Go*! in her
hpati, nor v^ei^hinf^ the diuy of liemllci^ncef
but morrd and seduced by the inati^lioo of
the def it, und the line md natural obedience
which n true and faithfol atthit-ct of our said
^< ' ' ^ ' "'Ward* our naid lute
I it to bear. Withdraw -
hih'j,, .MMi ,T,.,i ..41 „,., ^Mt.uLfiii intending tlie
peace und eommon tninc|ui)lity of this king^dom
of lUif^nd to diaqoiei, motVsit, and distifrb,
mi war Mtl reMiion offiiinal oor said laie m>*
npiifii loni tlic kic^ withift ihia hiitfr<^^n> ^
Ei^fttid to stir «if antd iuo«e» and the i^overn-
mmt of our ««ia«l Itle eovtfrign lord th^* king in
tht<i bio hin^^dom of Kh^^^ihI to iubrert, and
our ^at bttt; nnvcrei^n lord ihe kint^' from iIm
ir, and kiiii^^j name ot itne Crown
i» our !
nnerial of thi« kinf^dom of B»g^laiid to denoM>
4 defirtvr, ami our »aid lute sotcreitjn lord
the king to de»th ami tinal dv^tmction 10 brio^
•ndftfi: tlie^ithday of Si (tfewititie, tn tiie
I ymttr of If I e reitfn of our laiid late aove-
.. i„„ I tf I .,. I, ,^^^, gt,t.Qnd^ iin^i diven Other
II bcHifi li oAer, ffithiu
i ".., ^ : Iv, maticiOwlytlieiiMily,
trmj«ovoi)<ily, witli dittra fMn «mI Wm-
to the ji»ror« unknown, ibt dkl «ifii|llre|
itm, fttid iiifeiid our imki lale ftOftMlgll
I the king, her then sunrf me usxi MMynt
fiot only f^m hia liiigij muMtii tHte,
', and iom^rnimmt if lhi« kiag^ttii of
" l»4a|i«m umA thf## dvKvi ; imt tlso
ottr aakl bile aorereif^ I on I tlte kin^ to hill and
pot to death, and the anocnt govornmeat of
tUin kittfdtai of England to alter and wholly
aubfedrt, and a miserable alaoghter amoai^oi
the subiects nf our aoid ^aie aorereign lord the
kiiif Ibraa^hout thia kin^^m of Eof kmd to
cau!ie and procure, and insurrection and r^
battiort ai^inat our aaid late aoirenfign lord the
kitUT to procure and aaaiat. And the said mosi
wicked and devilish tieaaona aajd traitorous
cfTrnpas^iin^-v, tma^mitiom^ and purpoaeaalbre-
saiil, to toiUI, perlectf and brioif to past, the
«a»d Eli/.{iheih Gaunt, a.^ a fal&e traitor, then
and there, to wit, tlie aaid 24tli day ol* 8ep<
lMni»er, in tbe year aforesaid, at the pariih
and ward afbieaaid, well kno;ving one Jamea
BurtON 1» be a faiae traitor, and aii a fiilae trai-
tor traitorously to ba?e compasaed and inm<'
ginal the death and destruetifm of our said lat^
sovereip^ lord the king, and war an^l rebeltion
against our said lai*^ sover^-ign lord the kin^
within Ihifl kingdom of Eoglanil, together with
other traitors (to the jurors imkiiown), to have
intended to be raised ; she tbe said Elisab^
Gaunt afterwards, to wit, the »aid £4th 4tf tf
Sepfeniber^ in the year albresaidf witMn tht
dty of Loudon oforesaidy thtsaid Jamea 0ur<
ton, in a certain house of a person tothe jurora
unknown f knowingly, secret! v, wickedly, de»
^itifilily, and traitorously, did entertain, coil-
eei\l, comfort, sustain, and maintain, and then
and there, for the comforting, suRU'nance, and
maintenance of him the said James Burton,
meat, drink, and ^L m money for the innmtc*
mince and tustenanoe of him the aoid Jaoica
Burton, ntica tbe said James Burton, mahci-
ou»<1y anil traitorously tihe did gim and deltreri
0 fid cause to be given and deh«er«<d, agam^ct
the duty of her alleiriance, and againrt tha
peace, &e, uud igaiiist tbe form of the sta-
lut.% ki'.'*
Clfrk. How Myffit Mkoa, art thou gnOty or
not guiiif ?
Mrs. Gauitt, 1 deabata hare more time to
cotisiiter of* it.
L. C. J. You know whether yon be gnihy
of thia olfer»ce ; what need you have any time
of con^idLM^ion for that ?
Mrs. OautU. I do not know, 8a- $ I am ig«
DOrant in the law, and in things of that nature.
L. C J, But this it not maiter o4* law \ ti
is, w I let her y oil did receive tbeaa tndtoia ar no
knowingly ;' this James Bnrtan, knowiBf him
to have committed treason : cantiot you tail
wbriher yoo did or no f
Mrs. Onuni. Not Guilfcy.
Clerk. How wilt thou be tried ?
Mm, GaunL By God aud my cnuntry.
Ct§rk* God lend thee a good dfUver^nce.
Then the Middlesex jury returning, Mia.
Omtni waa tei .i^ide, and Rinr and Femlej
broiight •» the bar, who wett Smk bffOO^hl m
Gndty bj ll)e}ary«
Cltrk, Sot Henry Cornish to the b«p, and
BItaahcth Gtnui. '[WMch waa done.} Yon
41 1 J
I JAMES II. Trials ofFernUif, Rtng^ Mrs. Gaiad, Sf Cornish^ \il9
the piisDners at the bar, these men that have
been 1)0 w Grilled, and here appear, are to pass
between our sovereign lord the kin^ and yon,
upon your several lives or deaths : if you cbal-
len^ any of them, you must speak as they
comu to the book to he sworn, before they are
•worn.
Mr. Cornith, My lord, 1 must humbly beg
leafe of your lordship and this honourable
court, thait I may renew my request. The
time of notice ij^iven me for my trial being so
short, it hatU no precedent, I thmk : I humbly
pray your lordship I nmy have time allowed
for my triul ; I have had no counsel, no pannel,
no help in the world ; I had not pen, ink, nor
paper, my lord ; these are very nard things.
My lord, bis majesty was petitioned la:-t night
by my children, anri he was graciously pleased
to say, that he woidd refer it to my k)rds the
judyres. I only pray your lordships, that you
would be pleased to' allow me time : though
h^re is a grievous indictment brought against
ine, yet I doubt not but to clear myself of what
is alledgetl against me, if I have but time to
prepare myself for it : therefore I humbly
pray 1 may have time allotted.
L, C. J. You told us so before, that you
had exhibited a petition to the king, and that
the kin]^ did refer it to the judges ; you shew
us notliuig of that.
Cornish. My Ivrd, 1 can but only signify to
your lordship what 1 hear ; my children were
with me, and told me they had petitioned the
king, and his majesty was pleased graciously
to receive it.
Jtt, Gen, The king left you to the course
of the law.
Cornish, It is very hard measure ; I have
no preparation at all, no more than at the first
moment ; but I bless God, I hope I shall in
lime satisfy you of my innocency.
L. C, J, You were apprehended and seized
upon Tuesday last, this is almost a week ; you
knew what you were charged withal.
Cornish. My lord, I did not know what I
M as charged withal, I had no liberty of friends
to come to me ; my witie at lengtn obtained
k>a?e, but it was m the presence of major
Richardson ; I had no friend with my wife,
no pen, ink, nor paper.
L. C. J. Was pen, ink, and paper denyed
you ? Did you ask it ?
Att, Gen, As soon as he petitioned for it, be
bad it.
Capt Richardson, He had pen, ink, and
paper.
/.. C. J. When was that ?
Capt. lUcharrison. On Saturday.
Cornish. My lord, it was eight o'clock at
nJQht. -, ,
Just. Ij^iwi, Mr. Cornish, 1 would not have
you think you are used otlierwise than other
men arc ; Vor I must tell you, it is not usual
to h:ivc pen, ink, and uaper, without l^ve.
Cornish. 1 know it hath been aUowed in the
like case. ,
. Just. Withim. Ay, upon petitioo, n«Ter tlie.
Just. Levinx. Theie are many men, and of
as good quality as you, tried for killing men :
doesuiy body give them notioe ? Is there any
more necessity of notice in point of tteason»
than in point of murder ?
Just, withins, I tdd you what your oflenoe-
was, when you were committed.
Cornish. My lord, 1 remember in my lord
RussePs case, he had at least seven or eight
days allowed him.
iiust. Leviax, It may be so ; but it is mrt ne-
cessary. Prisoners tnat are tried here gene-
rally have no notice at all ; if one man hath a
singular fovour, another man cannot claim it
Cornish, My lord, I have a material wit-
ness above a hundred and forty miles off.
L. C. J. My lord's trial, 1 tuink, was put off
but till the afWmoon.
Cornish. With submisstoo to your lordship,
I think he had eight days assigned him. But,
my lord, I humbly conceive I have a witness-
that is very material in my case, that is 140
mile^out oi'town, in Lancashire ; I humbly
pray I may have time allotted me to send for
him.
X. C. J. Why did you not set forth that in
your petition to the king ?
Cornish. My lord, 1 did not understand ths
case.
L. C. J, Were not you committed for high-
treason ?•
Just. Withins, I told you so myself: I
shewed you thtf commitment ; therelore yon
cannot pretend you were ignorant of it.
Cornish. My loixl, it did not mention this
king or the lust : and I am not a lawyer, I am
not skillefl in these' things ; I am very igno-
rant, and hope your lordship will consider me ;
my innocence 'will appear as bright as any
man's that ever stood at this bar.
L. C. J. 1 do not believe you want that evi-
dence a hundred and forty miles off. Is he
the only man that can make your innocence
appear?
Cornish. My lord, by what I apprehend ht
will be the most material witness I have. Mj
lord, I shall desire nothing but with subniis-
sion to your lordship and the bench ; but I
humbly conceive it is very reasonable I should
have time, I humbly pray your lordship to
consider it.
L. C. J. Mr. Attorney, have you any diree-
tions?— ^«. Gen. No, my lorcf.
Cornish, I do not doubt, if I might have' n
little time, to make my defence.
Just. Withins. You should have applied
yourself to the king, it does not he in our
power.
Cornish. My lord, I humbly pray yon to
consider my case. ^ sr ,, ,,
Justice Witkins, Mr. Bridgman here on thm
bench says, there was a petition before th«
refScS'it^ '^ ' ''''^ ^^^ ^*°ff absolutely
JusUce Lemnx. We hav^ nothing to do. Sirz
we are here by commission to trv vou
Cornish. My lord,! have beeli^d^^SSlaoopy
415] Jhr High Treason.
of the pannd ; I liojie tbat is reasonaUe, I
Qjitst desire a copy ot ihe pannel.
Ait. Gen. Tiiat is uooe of }oui: right, Mr.
Cornish.
Cornish, Mr Attoroey, wUIl subroiBsiou, 1
ho|i« I ought to hate it.
AU. Gen, No, you ought not to have it ;
you have your ptremptory challeoges, you
may challeng-e thirty -five without t^ause.
L C. J. You sImU have a copy of the pan-
nel here.
Att. Gen. Yes, here he may.
Cornish. It is a vei*y hard case, when I
have a material tvitness so lar out of town, that
I L'snnot have a little time allotted.
L. C. X Cannot every mati that comes here
to he tried say the very same thiFi'4', that he
hath a material witness in France, &*»fiaiD, or
any where else, and that when that witness
comes, hi^ innocence will tie as clear an the
sun ?
C(trmth. My lord, my witness is in Lanca-
shire, 1 cannot help it ; I beseech your lord-
ship to consider me : i am apt to believe that
he Vk ould so much vindicate my reputation in
this matter ; that it would be a very g-rcat sa-
tisfaction to your lordships ; audi arasure
you are not for oppr^aing' any man.
X. C. J» No, Sir, that we are not.
Cornish. I am sure you are for the just
vindication of the government, for executing' of
Justice, and 1 will desire no other than that.
L. C- X Mr. Attorney, if youpray he may
he irietl, we cannot denyit.
Att. Gen. Mr. Cornish, I cannot defer it; I
have MO antliority ; and why you should be in
another condition than other prisoners, I do not
know ; you have uol deserved so well of the
government.
Cornish. 1 have not the names of the wards
where these men live, and their trades.
Mr. North, He hath a copy of the pannel,
and tliat is sufficient.
X. C, X You may ask them where they
live.
CamitL
my lord,
X, C. X
I hope I may hare p«fi and ink,
Ay, ay.
Then the Jury were called, and at\er Mr*
Cornish had challenged 35 of them, the Jury
twom we;e as foiluweth : Thomas Rawltnson,
Thomas Lan^ham, Ambrose Isted, Thomas
Pendleton, John Grice, Thomas Oneby» Wil-
liam Clowdesly,. Richard Hoi ford » tVilUam
Loni^boat, Stephen Coleman, Kohert Clavel,
William Long.
Proclamation beiojj made, "If any one can
inform,'* tScc. Mr, Cornish was set aside, and
I i^liacabetli Ciaunt at the bar,
Cicrk, Elizabeth Gaunt, hold up thy hand.
[Which she did.] Yon of the Jury, look
t upon the prisoner, and hearken to her cause :
I she stands indicted by the name of, &c. (as be-
tore in the indictment. ) Upon this indictment
che bath been arraigtiod, and th«treunto pleaded
not g^illyt and for her trial hath pnt her* ,
nnon her country, which country you ai-*.^
Your char^ is to enquire, whether she hJ
pruitty of this high treason whereof she atnndS
indicted, or not guilty. If you find lier jpjiltyJ
&c. " I
Mr, Phippf. May it please your lonkhipj
and yuu geiitlcratn that are sworn, Eliiid»f iw
Gaunt the privoner at the bar stands indictf^-d^l
for that she knowing James Burt^jn, togctberf
with other traitors, traitorously to have con*^
spired the death of the loie kingf, and to rait
rebellion in this kine^doni, did harbour the said
James Burton, and give lilm five pouuds ii
money.
AiL-Gen. May it please your lordship, and
you gentlemen that are sworn, the prisoner
stands indicted fur harbouring of Burton, wha^
was a great trnitor, and for procuring a way
for Ills escape beyond sea, and also fur giving
him 5/. to bear his charges. In the former^
trial you had an account of her husband, und
in this you will hear she ami her husband wersl
the great brokers for carrying over such trai*
tors, as my lord 8haAesbury and otbers ; the
have taken care to convey them over at :
times. We will produce our witnesses. Call
Burton and bis wife* (Mr, Burton sworn. J
Att* Gen. Do you know Mrs. Gaunt?
Burton, Ye^i Sir.
Att. Gen. Pray give my !ord and Ihe jur^
an account how she harboured you, and all ihfl
passages that past between you and Mrs.Gaunt*^
Pray tell first, whether you were engaged in
the matter of the Rye ?
Burlim, How 1 came concerned I will te!l^
you, if it please you,
Att, Gen, Speak,
Burton, The first time 1 knew any thing
of it, Mr. Keeling came to me one Saturday
morning and aske<l me, if I was to go to Lon<*'
don. I said, Yes, I was to go to the Ex^^
change ; and he desired me to meet him at th^
Mitre-taveru within Aldgate, and ask for niim-j
ber five. I came at the time, and nol»ody be^
ing there, I was going^ away, and met with wA
countryman, with a stick in his hand, that hai]
but one eye ; he came and asked for the sama
number : so the gentleman sent his boy allet 1
me, and told me one stayed ior me. When I^
came, he asked me, if I asked for nnrobcr fivef^
and 1 said, Yes. By wImjsc appointment ? By^
Josiah Keeling^, said L 8o he asked the J
man of the house to shew a room : he f^lievved'
a box ; but he would have a room, and wen
up stairs, and called tor pipes and a 4mndte|<
and a pint of wine. In a little while Keeling
came in, and brought Barber and Thompson J
and nobody spake almost any tiling but Kum'«j
bold, (that uas Rumbold witli one eye, fori
Keeling when be came in called liim captain]
Rumbold) and Rumbold talked about privile^
and su< h things at first, and he said his housc^
WHS a convenient house, and there they might^
do the business : but befort: they bad done, M
found they ilesignrd to kill the king, but t\^ *
thing troubled bim but killjjig the poetillion^ ta
413JI
1 JAMES IL TruiU of FenJe^, Ring, Mrs. Gaunt, SfCormMh^ [416
kill a man ia cold Mood. But then otys wc^
if you are for killistf, we bave done, and to
broke up ; that waa tbe end of that. A while
after Mr. KeeliB|f weot io, and nade a disco-
very: I never came amoa^ then afterwards.
So after Mr. Keeling' hail diHCo?ered, I was io
tliG proclamation for heiuf there at that meet-
iu^, and abMSondcd myself, aad lay hiiL A
matter of two inooths after, Mrs. Gaunt came
to enquire oi' mv wifis where f was, to speak
with me ; slie broui^t her to me. 8he told
me, there were some persons about to make sn
Kscape, and would have me go aloug with
them. 1 told her, with all my heart : so I
ssked her which way and how the^ intended
to 90. 8he told me, they had provided horses
to rid^dowa to Rochfiml' hundred, and there
was a vessel to carry then over; and, says
she, Ik ready hy siieh an eveoiog', and I will
call for yoo. Aeoordinifly she wd, and had
rae into Oiihopsgato-streel,and ia Half-mooB-
alley in a little brew-hoiise, op stairs in a
chamber, there were both the llumbolds ; one
of them did not k«i, and the other and I lay
there all night; and in tlie morning a man
€!ame sad ^led us away ; and we went to
Whitc-chapcl to take horse, to ride down to
Rncliford -hundred, and stayed for the vessel
two ilavs ; and whoa we met the vessel, it was
a smalficRiitil, and bad weather, nod the master
cii' the vosKol had but one hand and two boys,
one a very little one ; and nv went down the
creek, and 1 asked the man where he did in-
tend to laud us ; and he toU ua, at Ostead.
Said I, I understood we wera to go for IloUaad
to the Brill. Says hc^ My vtmi is only able
to (TO to Ostend or Dunkirk, either of them.
Nays Uumbold, I do not undenrtaad the sea.
SSays I, This is a very small vesael and leaky,
aiid tho muii not able to manage it. hSays 1, 1
will (jYi back again to London. Says he, 1 will
ilo Mil you do ; and we both parted at L4>iidou,
aud 1 iievor saw liim afterwards till I how hiui
at AnistiTtlaiii. 1 lay by a great many months
afk'r ; tlieii Mrs. (iaunt canne to me again,
uDfl told tua tlierc were two other persons go-
ing, aud I might have a passage if I would
go : ua she bid me Ik reaily by such an even-
uig* aiHl I was ready ; ajMl a boat beiog ready
at the wat«jr-Hide, carried me to Gmvescud*
where I went in a vessel to Amsterdam.
Att. Gen, Where were you!*
Buriwi, 1 was with my wifte at my daugb-
ttr's : 1 liad a daughter narrted, her husband
was drowned.
Att, Gen. How came Mrs. Gaunt to take so
much caro of you ? Give tbe court an aocouut.
Burton. Hhemi^ht think 1 knew something
of her husband, ii 1 should be taken ; I sup-
pose that might be tlie chief thing.
Att. Gen, What had her hustwad done t
Burton. Her husband, 1 suppose, koem
something of the business.
Att, GeR. Wiiatbusuiessi*
Burton, About aeinaff the Tower: UeoMaa
to mo, and would have had ne gone with him
with imi/L WakM»i t»tb9 Towar, tn as* wiiaft
4
any
force there was af soUicn: and capt, WalcoC
said be had a deaiga to take an honiw aver*
against the Tower, t^JPiit in soma mien there
to break in upon the Tower ; and Gnont wtt
with him.
L. C. J. What discourse Ind yoa with her
about the plot ?
Burton. Nothing with her.
Att. Gen. What waa it she w«uld help ya«
away for ?
Burton. I suppose this was the reaaon, be*
cause she knew 1 knew her hnsbiuid was eon-
oemed.
Mr. North. Did she asnat yoa
money? — Burton. Yea.
Mr. Nortk. How much?
Burton. She gave Hie a pared of
just as I was going away ; 1 pat it
other money*
Mr. North. Howmnch? SOardOs.?
Burton. More than that.
Sol. Gen. Were you gone iBom ynur oan
house when this womsn came to yoUr?
Burton. My own hoase waa bijuie op a grml
while before.
Sol. Gen. Did yon appfear pahlsdy wkoi
she caoM Io you ?
Burton. No, an'i pleaae you,
L. C. J. Had thmbeea any aeaneh far yod
before P — Burton. Yes.
Mr. Nortk. You wese ia the piislaMaiisB it
thiH tioM f-^Burton. Yes, an*t plaane ye« fSte.
Att. Gen. Did she carry you to RumbahL?
Burton. Yes.
Att. G^n. Was there any diaoDuvMhetweai
Rumboldandher?
Burton. No ; there wis an elderly nun ia
the house, 1 did not know him, emvmd nse up
to KuinlN)ld, there was both of thoni.
Att. Gen. What money had you of bar?
Burton, I believe about 5l. I told liar I hid
lain a great while, and money waa very hue
with me ; and Hhe told ineafaie would npst aiea
little. '^ .
Att. Gen. Did slie know what
C««HN2SM for?
Burton. Every bo<]y knew that, benaawl
was in the proclamation.
Mr. North. What directions did ahe give
you, how ^ou should liehave yooraelf when
she went with you to DiMiopRgate-street f
did she say vou must carry yourself?
Burton. Nothing thei«, she gave no
oboiM that.
L. C. J. Did she tell you you \
od in the plot witli her husband ?
Burton. She did not tell me so, 8ir.
L. C. J. Did you tell her you were i
ed in the plot with her husband ?
Burton. I did not tell her so.
Att. Gen. Who were the two men thalWOV
pMaarod to go with you tliat time?
Burton. One Fatehil.
Att. Gen. He was killed in the %lit. W«
FMohU in the fight?
Buriim. Yes, an't please yon he wai
I Alt. Gjbh, And wiio waa the atlierf
yoa wni
417] /or High Treeafm*
Barton. Ttie other was a mati liired in South >
waikj Itieve^sdvr bin ' :
C'»/fl. Sfr/. Wliiit i!ri 'i «be give y©ij
a!K»ut vouf- own nantc, m um^ viiien, when you
^retil mto the hont ?
Burton, If I kt>*^'^v ?«nv lK)dyf lUat 1 sitontd
not uke notice M k.
L.CJ. VfMj \^' I ' ' lake any aoqQ&int-
tnee of any body iti tiie boat f
Jusl. HV/tf<i». Uat4cyou, 8ir? You looked
tifion uH ttioa^ to t^eeogiged in the plot? All
ihat she endeafourod to care, were of the »anie
Jevel.
&iir/<m. Riunbold iraf ; Runibuld wti in
thi< (iroelaniatiofi,
L* C, J, Did she tdl you, that ymi were iu
ibeprnr* -i I ?
But n't pleaieyoar lordship, she
did not «ci. Mit: >t».
Mr. North. Did she never ducoiirse oi'your
hein^^' in the moclatnjitton f
BuHtm, So, not aft 1 remember*, it was a
general thiu)^,
Juvt. tr^f Ami. But why should she come lo
yon tu triais|iort you, iJ' it irere Hot for aiitfh ft
thiii^?
Burton. Her husband waa with me ahout
0Ht%ti to the Toiver.
T Ait, Gen. Burton, pray thus ; when you
eame from the West, ivhat overtures were to
Mpyou here from her, or her husbiind?
hurton. ller husband was with rue ut FerU'
loy'a house, and he tohJ me there were two or
three ijersous to eo in two or tliree days, and I
ahould go wtth ihem.
Alt r;,.„ Vou nunied your daughter, what
is
.Mary Gilba-t. [Then Slary GiU
» was caUcii uud SNvont.]
yj/l, Gin, Do yofi know Mrs, fiauot?
Mtir Vc«, 8ir> I know her, she
tras oiii . '-w.
Att. (Jen, Then five in account of her
fiomiDI^ to you atiout your fatiier.
M* GiUitrt, 8he came to our houAe that
lUi^ht nvv fttihcr w^-nt away. I neier ht-anl
^^- t ^ ' ' ourHethai p«4t, for I always
Ju^i. tri*r,,,i,. Why did you po out of the
wav?
M. Githtrt, Becaivie they wi«re not willing j
•liouid hear the diacoiirsc.
Com, Scrj^ You are upon your tMith« mli-
trtfi^ you must tetl the truth*
M. nUhftL I dO| Sir ; i will k-ll nf) mure.
Did yousi-e yoii »away?
W -owilh? !ti «1. . ,.y f
M, UdUrL I r
Jtt. (icn. Did Id c^ with him ?
^il/. Giif^rt. I liict iny faih«r nod Mrf,
isftt in Uoand«4itrh, my mother and I were
tiei f ^ * I vhopsgiite- s trec!t .
11, what wa^ tlie reifon why
£. We weiT to meet at seren
#^c;^l.> »^U we went to thif house, and thev
worn not eome ; ftod we were comluf houie»
and met them io Uouodflditch, and my ISftth
had M '^ t I ' 'if' arm, and went baO
to a i jiHgaie.
&>/< ol/i. I>ii4 vr»i3. L^Aunt carry him
ther ?
L. C. /, Do you know why your fither wai"'
to fr<» away f
Mr Gilbert. He went upon the aeoount of
the proclafoation.
t, C, J, Then you knew of the proetamft* _
tion f
M GitUrt, Yes, Sir, I knew of the pn
clumation.
Com* Serj. Whoiie acquaintance was the ms
in Bisho|i0|^te**treet T
M, GUheri, He was none of mtrir
Caan$eL When your father went tip stairi '
into a room, did you see any hotly wilh him ?
M. GHbcrt, Yes, Sir, U wiu* a man ihat
had hut one eye, a full &ct man, fuU of pock <
holes ; but I never mi\r him before, nor afu:-r,<,
C&unnet. How came you to see himP
AL Giibtrt, By going up stairs to k^p in J
fatlier.
[ Mary Bu t toh sworn ,]
Att, Gen, Do you know Mrs. Gaunt 1
Mrs. Burton. Yes, HW,
Att. Gen, Fray will yoU tdl the court,
sheeame to enquire atter your husband ?
Mnt. Burton^ Vcs, 8ir, at my daughter^
house.
Att, GtH, What disco urie happened be«
tween you ?
Mrs, Burton, No dtacoutse ; hut she said if
1 was willing^, my hnsbaml should go away,
aud she would take^art.
SoL Gen, But why thontd he go away T
Mrs. Burton. 1 do not know why, l>utonl|tj
tipmi the proe I amation . 1
Coumd. Woman, did she take notice yoiirj
husband w<ls gone from home, and had IcU hui j
house 't
Mrs, Bkrion, I knew myself, mv Lord.
Just. Levins, Where did you go f
Mrs. Burton, My husband went outof doonj
by hifl own self, by appointment* and wm\
were to meet« my child and 1 together, wttl|j»j
out Binbnpsgiite, by the Catharine- wheel*
C^^m. Strj. W ho made that appciintment ?
Mrs, Burton. l\Ii's. Gaunt.
Cam. Snj, Upon what account did she com«]
to you to secure your husband ?
Mrs. Button, Upon the account he was m J
il&e proclamation, and I tliought within my-
self, for lear my husband shoohl know ai»yJ
thin^ agmnsc her husband | but I never said so^^
far ! was clad my husband dtonld bt? iielpeil
nway, wilfidg to Mkfe his hlV, for I knew it
watt de»th.
Just, XminM, And you took that to he the
mraninir ofititi . ' . ..i- -. -
Sot, Gen. \h
Mrs* Httrtftn, i, ..-■... *"'*Xj
near one aoother, when Mrs* Gaunt kept
tallow thjuidler'n ahop.
JL a J. Wohiiu, do you ttsnfy hehere t
*I9J
1 JAMES II. Trials ffFernletf, Ring, Mrs. Gaunt, Sf Cornish^ [480
koeiv your liubband was in the proclama-
tion ?
Mr. Just. . Did you uerer see the pri-
se hct at the bar at any Uine in Holland ?
3Ir8. Burton. No.
Ait, Gen, Nor her husband ?
Mrs. Burton. Nor her husband.
Att. Gen. I ask you at this time when
your husband wcot*^away, and his house
was searched, how far did'she live from you
then f
Mrs. Burton. 8he had but lodpngs ; I do
Dot know where her dwelling honse was.
Att. Gen. Where were her lodgings ?
Mrs. Burton. At the upperend of Old Gravel
Lane, and my daughter in the middle of Gravel
Lane, in Worcester street, as far as it may be
to Neu'gute, thereabouts.
Att. Gen. Was it taken notice of all over the
street that the house was searched, and your
liusband gone ; Was that taken notice of in
the neighbourhood P — Mrs. Burton. Yes, yes.
Coumel. Between the time your husband
went first away, and the time she came to take
ctLve of him, had you no discourse about the
reason of iiis going away, nor of the proclama-
tion?—Mrs. Burton. No.
L. C.J. What say you, woman, to this
evidence? Several witnesses say you were
very busy in contriving the escape ot Burton ;
what was the reason why you would send
him away ?
Mis. Gaunt. 1 did not contrive to send him
away.
L. C. J. The woman says so, Burton says
so,' the daughter says the same.
Mrs. Gaunt. Where, Sir?
L. C. J. At Bishopsgatc, or Houndsditch.
Mrs. Gaunt, i deny it.
L. C. J. Ami you "gave him money after-
ivanls ?
31 IS. Gaunt. Who saw nic give it him ?
L. C. .'. >Jcsvvoarsit.
Mrs. Guunr. Ue was the more beholden to
r\\v. t
L. C. J. Did you, or did you not T
Ca|it. tiuhur{i.ton She says she is not come
here to I' 11 youi- lordship what she flid.
L. C. J. Woman, did not you hear that
Diirton's name wns in the proclamation about
JtiiinbuM s plot ?
Mrw. (t.unt. Itislike I mi^-ht.
L. C. ./. Vou might hear it !
Mrs. Gaunt. Yes.
L. C.J. And yet you would by all means
help hill) to escape ?
1^1 iH. Gnunl. 1 can say nothing against it,
if th< y swi'nr it.
L. C. J. Do you know what you are charged
withal ? You are accused for relieving and
comfort io}^ Burtun, whom you knew to have
com'iuttf'd trtason.
Mn. Gaunt, My lord, he says so.
L. C. J. And for helping him to escape,' and
giving him nion»>y in order to it?
Mrs. Gaunt, lie .-^ays so.
Zn C. J. He swears lo ; What do yoa say ?
Mrs. Gaunt. IsthatsafficieiitP
Mr. Just. Ay, and another swewt it,
that is sufli<nent.
Mrs. Gaunt, I have not heard nny body
else swear it.
Mr. Just. Yet, his wife.
Mrs. Gaunt, Not aiiout the moner-
Mr. Just. You came and soucited him
to t;o several times.
Mrs. Gaunt. ItisTery nntrae, my lord.
L. C. J. Did yon know his house had been
searched to find him ?
Mrs. Gaunt. I did not know it a great
while since, 1 might know.
[Hei-e Burton's |>ardon was prod need agifai.]
Just. Wit hint. It is a pardon for Burton,
now he is a good witness,* gentlemen.
£. C. J. Have you any more, woman, to
say for yourself? If you can tell us any olber
cause than that be was guilty of tream,
wherein vour husband was concerned.
Mrs. Gaunt, No, I deny that, that I knew
my husband was concerned in any thing tf
that kind.
X. C. J. Wherefore then would you tabi
so much care to send him away P
Mrs. Gaunt. 1 don't tell yon, my lord.
L.C.J. You don't tell us, but the witneMi
have sworn it.
Mrs. Gaunt. 1 must lea^e it to ihem.
L. C. J, Gentlemen of the Jeiy* thii wonn
stands indicted for high treason, lor oonoealing,
comforting, and relieving one James Boiton, a
person that had committed high treuon ; nd
for endeavouring that he might make In
escape, and giving him 5/. in mohey. Gen*
tlemen, the evidence that is given ia by Barton,
his wife, and his daughter. Burton aaya, thit
this woman was verv solicitous several timei
to help to send him beyond sea. He does tell
you, that when there was a plot against the life
of the kin^, wherein Rumbold was concerned,
and one oi the chief actors, that he himself wtt
present at one of the consultations conoemisg
It, and that aftervf ards he did withdraw him*
self from the company, as he savs; Irathe
says, that this woman's husband bein
wise concerned in the plot, and this
he believes, knowing tnat he was alfle to
some discovery concerning her husliand, and
knowing also his danger in respect of his own
g;utlt, she endeavours to send him away fintii
Ttochford, and so to fi^ beyond sea. And allcr-
wai-ds, in another place in Houndsditch, and
from thence he was to be conveyed beyond
sea. It is true, there is no direct proof^^tim
there was any paiticular mention that fiurlOB
was in the Proclamation for that treasoo ; but
j the woman says, and Burton himself says, thst
* *' Though it might make him a good wiU
ness, yet nnless he had been attainted, it wis
not legal to try any for receiving or oonivit-
ing him, for had he been convict, yet if beW
had bis clergy, the cither, who is in natm of
an accessary, is discharged thereby.'' HtkfB
P.C. p. 233. I*-*
4SIJ
J^T High Treamn,
ther do both Terily believe, thai the priscmer at
tie Wits in \ 1
ni was UQ\
\\i benr ibat
■ I rse
iiti-
^,. Umt
fie canM not
liri^ nil this,
What run be
til
Ccl. --
10 liio i ...
bis hoii^e \^
he found ;
she L'tHtLnvc)ur*t to conceal him. What run be ^
tbe tne^uiri;; of nil \\m in this W0Tiiun» l»ut that
tbu was vrry zch1oii8 to oiaintatu the ooiispi*
racy, and win tt tfreat a«iistar»t to nil persons
ibat were conceria*d ia il ? She will i»oi tell '
yon any other caiiw? wlierefore she should he
ooncemeiJ to convey ihiti man heyoml sea^ amJ
til ere fori' in ull reiii^on you ought to cooceif e
it wus Ibr this ; it was a kunwu cause, made
Jrnoivn lo all [leojde hy the kint^'n IVoelama-
tion. If yon hc'lief e ahc did know or believe
Burtoti to have been g'uilty ot that treason,
ao'l iIj:i» •.!»*> did help to cimirey him away, as
tli i have proved that she did, by
giv ^ money, and soheiting him several
times lo be gone,' then you ought to finil her
guilty.
Then the Jury i^irtngf to ask a questioo,
Barton una called afj^nin ; but bein^ gone out
of court, was sent for, and Blr, Corniah was
let to the bar.
CUrk, lienry Comiah, hold up thy hand ;
vou of tbe jury, took upon the prisoner, and
bearkeo to hia Vauae ; hu stamls iudicteil by
tbe name nf Hi-nry Comlshi late of tlic pamn
of St. iMicharl Bassifhaw, in the ward of Cus-
si»haw\ Loudon, rTiM*^lirini ,\ *• as before in
the iuYJbciiiient, ' tot'ut he hath
been arraigned, l^ ; i^ pleaded Net
Guilty, 'Sec,
Mr, Vhtppg, May it please your tordiihip,
mnd you, geotletuen that are sworn, Henry
Cornii»h, the prbon^f Hi the bar, standa in-
dicted, tor that hi ' ' that the late duke
ofMoomoiith, W ^sell, esq. the late
lord (irry, and ouw t tr iiiom, had conspired
the duath of the late kJ08:» and to raise rebel-
lion iu lhi»* I. tr^^ ' ' r. ^ • aij ^j
assist Uicm r i imftfft*
uatiotj, agiiu^^v ..* — j, .. ..,.. ...,^*,.^jice, &.
To ibis he haith pleaded Not CJuiUy, ^cc.
CoTuuh. I am mitiKTciit of the whole matter.
(llfntr. Burton iji come.
L C. X Let us make an end of that finl.
lu the «-Tidence that you gave aErainit £hta-
beth Gaunt, you said that you did raceife
moni'y iVom her, 5/. or some iuch sum.
Hurton Yen, »n*t pleatieyour litrdship,
/.. C. J, Did ^he owe you any uioney P
hut tun No, my lord.
kX. C^ J. iipou what mccount Has it you re*
fetl ihiit money ?— Hut ton. H\w ^^ave it me.
t, C J. U|ion what account waii it ? To aa-
you in your eaca|je ?
^uriiin/She knew I wa» bare of money,
and govc it me of her free iidh
L^ C J. And it W41 at that time you went
A, D* 1685.
Just, Withhit. ll waa to aasiat you in your
escaped
hurton. Yes, I believe bo.
Com* Serj, WUt* paid yourl»oal-hipe?
Burton, 1 paid none, 1 don't koow, the
waterman can tell*
Att. Gen. May it please your lordship, ami]
yoti ifentlemeu of the jury, Mr. Coruisti lb
prisoner at the bar, stands indicted for con^l
tiivinjo;: the death of the late king, and for rais*^
ini^ rdi^elliou in the kingdom, and is charged]
that he did consent to be assisting to ifmt re-'l
hellion that wad then deaigned. Jt is not uit^|
kiio\»n to you, gentlemen, for there have beeq
several trials ottliat conspiracy, that there wa
a i^Ti'Ut rebellion de^i^ned in England hy tli^l
btc duke of Monmouth, the lord llussel, and*!
fiiir Thomuii .^nnstrong ; and partieularly^l
tfenllemen, there was a meeting (wbi^l' "'■ - ^'v T
hath appeared in public^) at Air s ^ I
hmise, where the lord Kuiiscl, the Kn f J
Monmouth, f^ir Thomas Armstrong, l^lr. liunw
sey, and the late lord Grey, met to eoji!<iider|
and adjust matters. At that meeting Mr; I
Cornish indreii came in very late, (for he wagl
invited and knew theu* design then) he cam#1
in [ate, and so was not at ihe whole disco urse y
but there waa a declaration framed to be pu
out when they *»houUI vi«e, and they did i
quaint Mr. Cornish with il^ and they read it tdjj
Mr. Cornish, and Mr. Cornish did like il ve
well, and promi&etl he would be assisting,
wc will prove to you, genlicmen. Another in-
stance of Mr* Cornish's rebellion, for I need|
not tell you what part he acted when he w«
6 hen If, and maintaiufrd that whtcli was ih4
ground*work of the rebel hon, setting the com-J
monalty ag^iuBt the government of the city b
another instance we will give you is, hifl under*
aherifT that was employed to divide the city/l
ami lo raise men within tbe «ity» having 1
discourse with Mr* Cornish about setilinf^l
that matter, be hked it very well, and pro-^J
mi§ed he would he assi siting to bim ; audi
yon may easily presume Mr, Goodeuough th^l
under -i>heritf was very privy to all i4^e acts of 1
Mr. Corm»b at that tune. We will call ou^f
wittiesses. Mr. llumsey.
Comiih, I desire Ihe witnesaes may be ke^ ]
apart. |
Att* Gen. They will prove it upon you aM
two times. 1
Cormsh* You will find roe guilty of DeHJj
titer ; I am aa innocent as any person in this <
court. I
Att, Gen, 8o was my lord Rymelto his death, |
llr.Corui»b: do y ou rt member that P
Cvmhk^ Mr. Attorney Cienerul, I speak iaj
tha [treaHfUce oftlieisreat iitnl, I am av iimo^j
cent as any man in thin court. i^
Att Otn, [Vlr. HuMiaey, pray will you giv*<|
ir- ' r I Mil the jury im acrount of tbe insiur^J
! ll was to ItATO been in EogUud, ii| i
ilj. . ,>'\^ut,u ond wlM^t coQceru (be pri«
»onrr II".
Rt< I, about the latter tnd ofl
Uctobor, or ibt: begmtiiug ol Novaiober^ A|i T
493] 1 JAMES 11. TriaU o/Fernleift Rings Mr*. Oaunt, ^ ComiA^ [tffr
kept a- foot ; either lei them oome to a i
tion to rise, or let it fail for good and all.
Att. Oen. Mi&r Mr. Cornish had r —
bis likio^ of tliia busineifl and
what follower! P
Rumsey. He did sajr he liked it very mft;
and that poor interest he had, he wouU jeu
witli it.
AtL Gen. Speak that a^fain.
Kumsetf. Mr. Cornish did say, be did like thi
declaration, and with the small iotenat he
had, he would appear to back it, or woidi to
that effect.
Corfiish. My Iord» since he takes the fiei*
dom to ciiari^i* me with these tbingii I neiw
was at a conault in ray days.
Justice i>ri/t J. You were not tbenatlfii
Slieppard's tiiat night ?
U. Gen. Will you deny you were at Mk.
lord SLaflcshury desired ne to go to Mr.
Sheppard's house, where there whs a meet-
ing of those gentlemen th^t I did name be •
fore, the duke of Monmouth, my lonl Rus-
sel, my lord Grey, sir Thomas Armstrong, and
Mr. Ferguson, and Mr. Sheppard, and ac-
cordingly I went ; I came late there my-
self, for they wei-e just going away
when I came in. 1 told them my message,
and they told me they were disap|)ointed by
Mr. Trenchai-dL I had not been there a quar-
ter of an hour, hut we were goin^ away, and
Mr. Sheppard was called for by his man, and
he went down stairs and brought up Mr. Cor-
nish ; and when he came into the room, he
told the gpntleinen tlicre met, that Mr. Alder-
man Cornish was come ; so as soon as Mr.
Alderniau Cornish came into the room, he made
his excuse to the gentlemen that he did not
come s(M)ncr, and that he dould not stay with
them ; the reason why he could not stay w ith
tliem, he told them was, that they wck; to meet
that night about their charter, and there was
never another alderman in town hut himself,
and therelbre ho could not stay, there was a
necessity of an alderman to he there. And
upon that Mr. Ferguson opened his bosom, and
from under his stomacher he pulled out a paper ;
they tokl him they had that paper read, and
desuvd to read it to him : Mr. Ferguson read
it, and Mr. Sheppard held die candle all tho
while that it was reading ; and afler they bad
read it, they ask&d him how he liked it ; and
he did say 'he liked it vciy well.
L. C. J. What were the contents of that
per?
Slieppard's that iiigbt?
Cornish. I do declare, I never was at Mr.
Shepptti (Ps in any consult in my life, an he de-
clares ; but 1 have had great dealings with Mr*
Sheppard.
L, C. J. You shall be allowed your libcftys
pray, Sir, be not transported with paesion. I
doubt, before this time, notwithstanding tht
confidence you seem to have, there are few
believe you to be as innocent as any penon pie-
sent.
Alt. Gen. You will hear more from bit
oracle,
j Justice Levinz, Were; you there when Wf
! lord UuMel was there ?
Cornish. I was not there when my leid
! Russcl was there, as I remember.
Xumey, The iirst part of it was com- ; X. C. J. Were you present, hear, hear. Sir;
plaining of the mlsgovornment of the late king ; \ were you present at Sheppard'a when Fergoisn
there were two points in it that I do remcmUir : was there ?
very well that they would declare for ; one i Cornislt, My lord, 1 have been at Sheppaid'i
was liberty of conscience ; and t'other was, j several times, out 1 never liked the man |br bit
that all those that would assist in that insur- ' murals, and therefore never Uked to be in hif
rectjon, that had any lands of the church, or | company.
the king's, in the late war, should have them | L, C. J, lie pulled the paper out ef hit
restored to them. I bosom.
L. C J. Was there any thing in that paper i
that <lid engage any body*^to an insurrection ? \
Rionsey. I did not hear all the ])aper, nor |
paper
did I take great notice of it ; but those two
points were in it, to engage them that would
assist.
Att, Gen, What was the effect of tlie
paper?
liuniscy. It was to be a declaration upon
the rising ; when the rising was to have been
tbi^ was to have been dispersed abroad.
Att. Gen. Mr. Itumsey, was there arising
ilUfHided at that time ?
Rumtey. Yi^, and they met there for that
purpose ; and Mr. Trencnard was the man to
manage the businessabout Taunton, and hedis-
appointe<l them.
At i. Gen, \V hat was your message from my
lord Shaftesbury to them f
RuMBpj/. It was to know what issue they bad
come to about the rising, and to press them to
itp lor Much a matter at that wu not to be long
Cornish, It is as great an untruth i
was told in the world ; but, my lord, i
he takes this freedom to charge me, I desire to
know whether he stands here as a lawful evi«
dence ?
L. C J, What is your exception ?
Cornish. He stands charged guilty of ton-
son.
L. C. J. That itself does not disable him tt
be a witness.
Cornish. Before he hath his pardon, my
lord.
L. C. J. I do not know wlietber be hath hk
pardon or not.
Att. Gen. There is no indictment at all \
him.
Justice Lfvinz. Ifhe were convicted,!
laweil of treason, it were something ; en i
cent man may be charged.
Rumsey. My lord, Mr. Cornish and I J
been very well acquainted these fourteen ;
or thereabouts, and have bad greats
4«5J
ftT Rifih Treoian*
tof^bcr ; lor dntmfg the timo tli«l I manafecl
^ IdnffM cttstcmui at Bristol, «ix yetfii I wu
* cwiecior, he did return bcti^ecn thm? and
r IniiMlrcd tlK)ns«[ul jioqimI* forme ; Ite is a
tery honest gentlenmiif and I appeal 1o him*
i«lt, wbelli«r I Uiko dr%hl t<» appear here to
GirnM/r. But^ Colonel, wli«t is the reason
itiBt you have not nccused mo all this while ?
Humtry, Mr. Cornish« 1 hope tlial a not an
•bj^etioti ; 1 think I sufler for it aod no4 you ;
il wma cuiupnssinnf ntul the ^me compaudon
makes you deny it to save others; if you would
doal i>penlv, I make no doubt, but you might
mirtake vf the ldng\ far our yet, as weU as I
hwe done,
Cornuh, I do tbankfully accept of irw ma-
joty^a fa«imr at all timers, but I thank ih>d I
am mnoecnt in this matter, and do not ataud in
need of it*
Rumieif, And tou &ky I accuse vou falsely;
IheQ Mr. Cornish you do not stand there nor I
here.
Att. Gtn, Pray, wUlyou ask him any ques-
tions ?
X. C. J. But pray do not enter into a long
haranirue.
C^frniih, My Iord» T do humbly conceife,
lliat he does not stand h^re as on evirlenee.
L^ C* J. Vou ha^e the judgment of the court
ft>r that,
Cvrnish. Beibre he is pardoned P
I*. C. J, I do not talk of a pardon ; what re-
1 haTe you a^inst him ?
ilt» Oen, You were present and heard that
upon his
CM :_ _ _, .. , ^1 :„ jt iiisoath
to apeak the whole truth- —
/. C, J. Now \ffn nrr mrAih^^ Tour speech^
it T ^irnfeany
Hi <% or tiie
CornUk, ^ign it,
Att. Gen. Mr. liuu'cw\\ ^any ret^ollect ;
had y^a lusver nny difwitrpe with' him at other
rimfi«<P
RmnMey. We hare liftd a long anjuatnlanec,
fo-;-* ■ - ir^ • but, in my life, 1 ne^'iT heard
Ivi - y thing before or since that, to in v
ki»i -
AH. (irn. Hir, Cofnigh» will yon tsk him
anv mnfs *im tion*! ?
' ni Idi-tcoursc
1^.1 ' . _ , . ,.-?
Justice Lfvlnz* Ynu must not stand to
flialo(;rii r. one another, hut bpeak as we
may II
Ll J. . ' - . - :•'. ■ .
vfm eomn ti
I..,.. ......
Sit
•NMry I hut, I tair» thtt it uoi your lima^
Cornifi. 1 ner^ waval anv comoh hi my
life. • ^
Attn Gin* That is » natne he pvea ir ;
you never at a meeting about ti ri^ini; ^
[Mr. Goodcnoug kswom^lf
Ait, Gfft. Mr. G^odenough, are yoit te^J
quainte<l with Mr. Oonikh ? '^
GooJtfwJiMjA, Ves, Sif.
CorntiA. My lordt I humbly conceive- he t^
not a witDet»,n« standsiudieledupoQaitoot'-l
lawry ; I can produce it.
Ait, Gen, We do admit il,
X. C. X They admit your exoeplion, and
will answer it by producing a pardon.
Coffihh, I need not say any tNng agmisl 1
him, he is known well enough.
Justice Wit him* He M^s your under-sberifl
Mr, CorniHli.
Cornish. Much ngainst my wilt ; I oppoisedFl
him to the utmost ; and this is nothing but nia-> f
lice agadtist me.
[Mr. Goodenoughh Pardon read*}
Comith. 1 do humbly conceive this ctnnoH
be done, but by a writ of envr, or an act of pari |
liament. '■
X. C. X Cannot the king pardon an on
lawry ?
Justice Withim, That is no piece of lavr, ]
am sure of it.
An, Gen. Goodenough, pray what do yorfl
know of a risins^ intends aguinkt the late kinjjlij
GoQiienemgh. All that I have to |p?e an ac*
count of, is a discourse —
Aft, Gen, Answer what I ask you ; wha
flo YOU koo\V of n rising' hy others ?
(Joodcnmigh. I know nothmg of that husi-»*|
ness of my lord Rovsi-irii; but there wa.s
desiffn to rrtr, Hir, in fyondon ; we designed tS\
divide it into twenty priHs, ruid out of enrhm
part to raise five hundreij men, if it might b?l
doiHi, to make an LnKurrertion, 1
X. C. J. What wcm these men to da whei^J
thev ^' , il ?
iJ They were to take the Tower;|]
and <! ' , of town.
Ai a my lord and th«]
j nry i i - < ■ v u u h >i d with Mr. Con
0 BcforM this was agreed
by II 1 * ' »•? fit Alderman r> * '
8lr, law will not il
thoU; > niiiK <'iil ; buts.j ..-...,.. r
win '» ibi?t, ^id he» j
t ^»^' , V, and the coun-
try so ready. I said to him ogTun, Sir, then
b sometlun?!' thou^^ht of to be done here ; bi
says I, in the first place the Tower ouijhtlo Ij
seized, where the magazine is. Upon tins b
made a little pause, and sriid, I will do what
can, or what good 1 can. To this purpose
^ me; and obnut souie time af^f^
r upon the cxchon^, and asked
u j» u «ji Its Went 1* which I tih * ^ ^ to
relating to wlmt we di'^otirse*! , I t hsi'
I can fiay. 1 never mrt afVf imv^ mji only
upon the iMTchange he asked how matters wgai.
1 JAMES II. Trials ofFernley, Ring, Mrs. Gaunt, Sf Cornish, [42S
L. C J. No, DO, he u not indicted lor it ; we
cannot try him now for any treason of tliat
nature.
Cornish. I hnmbly conceive hehnth not bad
a pardon tor iiis last treason.
X. C. J. I must tell you, if be be gvlhy of
treason till he is tried and convicted, it dotb
Dot take off his testimony.
Cornish, Pray, Mr. Goodenougb, rennember*
aU ^'our tricks, whether or no, was there any
body present when this discourse past beiwen
you und i ?
Guodtnouch, No body but you and I.
Cornish, You were not so conversaDt in my
house, I know.
Goodenough. Sir, I came to you about the
business of tiic riot.
Cornish. How many times roijf ht yoa be at
my liousc P Not three times, I believe.
L. C. J. You ask a question and answer it
yourself.
Cornish. My lord, 1 desire to know, where it
was these words were spoke ?
Goodenough. Sir, in your lower rooiD.
Corjii^h. In inv own house ?
Goodenough. Yes, Sir.
Cornish. And no company there ?
Goodenough. And no company.
Cornish. That is very strange, and Chat af-
terwards you should meet me, and discourse
this matter again.
Goodenough. No, Sir, all I say is this, you
met me upon the Exchange and asked me how
things went ?
Cornish. That might be in reference to the
suit you were managing for the rioters $ I know
of nothing else.
Justiceiri/AifU. And I tell you, Mr. Comisb,
that was a braueh of the plot ; take that from
me.
Cornish. My loni, he was attorney in that
cause, and I might ask how matters went ia
reference to that trial ; but I take God to wit-
ness, nothing else as 1 rememlier.
L, C. J. Hut here you say, it wza a strange
thing that Mr. Goodenough and you aliould be
in a room alone, when you acknowledged bim
to have been the attorney in a cause of mighty
consequence among you.
Cornish. lie was concerned for all ; and 1
stodfastly lK.'lievc he was never with me twice
aiK>ut that suit ; l)ut he bath been at sir Thomas
Player's ; thcie he often went about that af-
fair ; anil I do not believe that ever he came to
me about that business.
L. C. J. Is that ail you have to say to hiniy
Sir f
Alt. Gen. ^Vill you ask him any moreipies-
tions ? if not, go on, we have done.
Coruiih. My hint, colonel Kinusey is a per-
son that hath Hcquaiiite<i the court, that tn«>ra
was a loiij;- acquaintance between bim and mr.
1 have Nf rveil his majesty in my place, and dfr
it to this day. My lonl, it is a very improbable
thing, tbai I should meet him at Mr. 8tie^
yard's, witerc I saw such wicked hornbtok
doings 'f and that he shouhl never aftcm^i^
4271
Alt. Gen. Was there any discourse about
seizing the guards ?
Goodenough. I have told you the whole dis-
course.
Alt. Gen. Prav repeat it.
Goodenough. I told him, says I, Sir, now it
is plain the law will not defend us, though we
are never so innocent, or to tliis purpose.
Sol. Gen. U[ion what occasion was that dis-
course ?
Goodenough. Every thing going against us.
Sol. Gen. How ?
Goodenough. This was in Easter term, as
near as I can remember, 1603.
All. Gen. Ay, 1GC3.
Goodenough. Therefore says I, something
else is to be thought on, some course else is to
be taken ; to this purpose he answered me, 1
wonder the city b so unready, and the country
so ready.
L. C. Baron. What country .'
Goodenough. He had been in the country,
as I understood before, tliat I do not know.
Cornish. What time was this, Sir ?
Goodenough. In Easter term, or thereabouts,
1683. I told him then, Sir, there is something
thought of to be done here in liondon to this
purpose ; but sa^s I, in the tirst place, the
Tower is to be seized, where the magazine is ;
so he answered me, after some pause (he paused
upon it) says he, I will do what good I can,
or what I can to this purpose.
Sol. Gen. Did he seem to dislike seizing the
Tower at all ?
Goodenough. Not at ail. Sir, it did not appear
so to me.
Sol. Gen. What discourses had you any
other time ?
Goodenough. I never had any discourse of
this matter, or any thing relating to it at any
other time, but only when I came upon the
Exchange, how things went.
iSW. Gen. And did you give him an ac-
count i*
Goodenough. T said, well. I gave him a
general answer, for that was not a place to talk
in, and that I apprehended of this discouise.
Siyl. Gen. Had you any other matters ?
Gooticnough. I had some other matters of
managing the riot, that was brought against
him, and several others, an<l myself ulso.
L. C. J. Will you ask him any questions,
Mr. Cornish?
Cornish. Whether his pardon be allowed ?
L. C. J. We heard it read.
Cornish. This being a court inferior to the
King's -bench
L. C. J. Here is a pardon under the Great
Seal, Sir, and here is a pardon of that offence
which you charge him witb, and which }oii
take to be a sufiicient exception aguinst his'be-
inga witness ; we are salislicd it is suihcitnt.
Cornish. Pray, my lord, is not thui> pardon
special ?
L. C /. What do you mean by that ?
Cornish, Because, my lor«l, he hath been
in «n act of treason since ; therefore, my lord,
irk« U not pardoned of that-^-*
439]
Jqt High Treason.
spcik ia me about that affair. He came to my
}muse| I remember, about the return of soiuc
tiK^ies for his own private usf ; for he was
then out of \m iBajesty's emplo)fment. He
does deelare herCi he never said a word to iiic,
never sjiake to me any thing of it but there.
My lord, it Is a v«ry stiaoge ihiu;;, thai there
sliiiuld he such a contrivaoce to ruin I he king
mid kuj:jdoin, and that 1 should be oue in this
bu^iitWs, this villainy, and not be consulted
Low to carry it on ; it is rcry strang^e thej
cboolt) see fiie, and never say a word of it al-
terwards loine. Wy lord, I hoj>e, and you
grcntleuien of thejiirj^, that you will consider
the )u>nrobabtiity of it ; it is a£ irriprobuhle as
any thiogf in the world. I hope it doth appear
to your lordshiji and this bench, that there h
no [vrobability in it ; he owns ive had a ffreat
deal ill" freedom ; he owns we were arquaititcd
f<ir fourteeD years totfether, and that 1 sbouhl
lie at such a wicked villainous place once, and
«ee him so often afterwards, and never speak
of it, and never say any ihingof it ; the Great
Gm\ of heaven and earth, liefore whom I
«tiind, knows that I know nothing of all that
he hath sworn against me : He must swear
these things lo save hts owu life ;«if he
will takt' away rny life, be will take away many
others, \iithiiui question, if he can save hi^
«wn. I should not ur^e this, but God is
my witness, 1 ue^er heard any thing of
a dintrivaiice or plot, till my lord Russel's
trial : These are very strange ihm^^s, if so be
so f,'Oi»d a £,^overijmtrnt as we have, shall uot
|irotect such innoceut luen ; truly my lord, 1
urn as innocent as any roan in this ctmrt, if I
Vfero io apiiear before the Great God tnjudg-
luent th^s motnenL
X. C. J. Look you, Mr. Cornish, 1 would
with oil my heart allow you aVl the liberty
Unat^inable, to speak pertinently to your de-
Ibnce J hat to oppose confidence, and very £ipreat
ossumnce, u[K)n your being in the presence of
.Almi|y;^hty Go^l, ag'ainst express tesiiinony, is
the weakest defence that can be ; if you have
any wilnessea, if you have any thin^ to urge
ag^inM the testimony of any of these persona,
besides the improbability of it, which you have
<if\en mentioned over and over again, you
«hall be heard with all patience; if you have
i^iliiessfts that you udl call, we will bear them
' liicewise*
Cornish . My ford, I think his treason being
coiifesftctf, and not being paixloned
Just. WUhint. Is that all you will say, Mr.
Cornish ?
Cornish. I hope yon will bear a little with
nie» 1 am hisrhly concerned.
L. C. J. You are so.
Cornish, I have had no help, and it is well
ttnown, I am not skilful in the law. I donU
tinderstand what you say, nor how to plead my
CfiU'iref liaiinsj no help, nor nu assistance af-
fowrtl me. My lord, it a* a most improbable
4hin^, that I should be at this place, wtieretbts
iKirrihJe wickedness was. and thai H should lie
all thti liioe never mentioned r I hare been, my
A. D. 1685. [430
lord, several times in prison this year, and I J
think my virtue will be so much the greater f
to be acraiu and again purged, as I have been ; J
that which halh pleased me very mucb» hath j
been my tnnocency : woiilil any man in m^ j
circumjitancea have staid iind continued in this J
nation, ii" he had not known himself perfectly
iuQOcent ? Oihen^ have gone an ay, and]
I could as freely have gone, after I have heei|1
taken up four tunes.
L. C. J. 1 doubt tliere are a great many }
arc not gone ; Mr, Humsey hath told you ]
plainly it was compassion to you, though in-
Jury to hiinselt', that he did not accu^ yod '
sooner* 1
Just. Levins. Here is Gaunt staid herii
till within this week or fortnight, and never]
stirred.
Just. Wiihins. Mr. Cornish, my lord hath
put you in the right way for your defence, it^
you can invalidate the testimony, or call any !
witnesses, do it ; but to talk at ibis rate, yoa
may do it this month (fur ought I know,) un4 ^
it will signify no more than it hath done al* |
ready,
Corniih. The improbability is so manifest.
i. C X Is it enough tu say, improbability^ j
improbability, improbability ? Is that enough ? ^
Have you said any more ?
Corniih. My lord, I have said this, that thi* i
gentleman thai should be so conversant in th^ J
town, 1 111 hi^ company, and he in mine ; is it 1
not improbable ?—
JuNt. hvinz. Look you, Mr. Cornish, 1 1
will tell you what the method is, lo girc cFi- j
dcnce lirst, ami fht*n apply it in summing np^ ,
the evidence; if yon >Aere summing it up^ '
the court hath all the reason in the world, 1
to hear you ; if ym\ have evidence, the way ii i
lo give your eviiltnce, and apply it if you c&D
Just. Withim. Have you any witneVsesf
Coruiiih, Against Mr. Rumsey ? *•
Just Withina. Against any body, BIr. Humi ;
»5eyif you will.
'CortUfh, My lord, 1 humbly conceive that J
this witness, Mr. Rumsey, ought not to stand; ;
if your lordship satisfits me, 1 shall be very.
much obliged to your lordship : He declared
upon his oath, when he Hwore against my lord
Rnssel, that he hud nothing else to swear
against any man.
Jmt.Wilftins. How does it appear ?
Cornish. I will produce it, if your lord<(hi|^ j
please to sfive me lime. 1
Just. Withinx. But aAerwards he discoverei']
a great deal more.
L. C. /. Look you, Sir, if you hare any ex-
ception against Mr. Rumsey 's testimony^
we will hear you ; propound a legal exceptionri
Corniifi. My lord, I humbly conceive, hfli
not producing his pardon, bis evidence is nofj
good . 1
L. C. J, You have had the opinion of ih&,|
court. ■
Cornith, If your lordship over- rule me,
L. C. J* We must over-rule you.
dfrnitL If that will not be gvantcd mc, '*
43JJ
I JAM£S II. Trial ofFemlei^y Ring^ Mrs. Gaunt, Jf Cornish, [4%
X. C. J. Then you have do more to say ?
Cornish. But for my innocency, for that
(I know) I have enough to say.
L. C. J. That is m vour owu breast, the
jury can't see that; will you oill any wit-
nesses?
Cornish. I have some witnesses to call here,
•s to Mr. Goodenough, my lord.
L,C>J. Whatis your exception agaioit Mr.
Goodenongh ?
Cornish. My lord, it was my noost great un-
happiness and misfortune that this Gomknough
was admitted into the office of under-slieriff;
and, my lord, that I might fully convince your
lordiship and this court, all that I desire is,
some few men may be called ; besides, I think
there are a thousand, I may say, that will bear
me witness, 1 did oppose him.
X. C J. But pray, Mr. Cornish, is that an
exception that he does not swear true because
you would not let him be your under-sheriff?
Cornish. It looks like malice.
X. C. J. You did admit him to be under-
aheriff, all the world knows that.
Cornish. But I can set forth that I did
oppose him, and the reasons why I did oppose
him.
X. C. J. You may, if you will, give evi-
dence, what an instriftnent he was to you, and
how he served you in your office, wnen you
were sheriff : is this to the purpose ?
Cornish. Yes.
X. C. J. It is not at all to the purpose.
CornUh. My lord, I was imposed u|M)n by
my partner.
X. C J. You could not be imi>osed upoo,
you had equal power with your partner.
Cornish. If your lordship pleases to consider
the temper of that man.
X. C. J. What man ?
Cornish. Bethel, I mean, what an obstinate
man he was. My lord, I hope I can purge
myself greatly in these matters.
L. C. J. It you will, tell to what you will
eall litem ?
Cornish. The great aversion that 1 had.
Alt. (Jen. Vfe will admit ihat he did oppose
him, bec4aise he would have had more money.
Just. WiLhins. You have heard the opinion
of the court.
Just. . It is not material whether he
came in witli or without your consent.
Cornish. Air. Gosfri^lit, will you be pleased
to declure to my lord, how I was imposed upou
by suflVrini^ Guodenough to be under-Kheriff ?
On^/'nrr/ii, My lord, after that Bethel and
Corniali were chosm sheriffs, they hud some
ineetin}<'s too^cther concerning an under-sheriff;
Mr. Bethel he named Goodenouf;i:l), Mr. Cor-
nish he named another ; they could not agree,
tiie iViiYvt'cncv. did arise in three or four, or
more days debate, as 1 remember, and Mr.
Cornish did tell slierif f Bethel, he %• as resolved
if Goodcnough were under- slicriff he would
tine, and not hold, and told him the reason
why: he said he was a nr^n that he would not
trust a hair of hit head with, and he bad no
1 you hear any angry w
lutted to be UDder-sbeiifff
knowledge, he believed, of the busineM ; bat
withal, he told him, he waa a man obnoxious
to the government, and he was an ill masj and
had done ill things, and he would fOU trust his
estate and his reputation in the hands of snch
ail under-sheriff. Bethel he inaisted upon it,
and he was resolved he would have Uoode-
nOiu^h, and Comidi's man should not be.
X. C. J. Who was Comish's man ?
GosfrifihL I know the man, but fbiget bk
name. Millman.
X. C. J. Can you tell mhft GoodeMugli
was t<.> give for the under-shenffwidc ?
Gos/right, No, indeed.
X. C. J. Was there no discourse P
Gotfrixht. Not in my hearing.
X. C. J. Was Goodenough unde^-8fae!^iff is
Cornish at last ?-^Gos/right, Yee, Sir.
X. C. X How did thev agree ?
Gosfright. I believe the animosities were m
great, that they were never reconciled; far
Cornish had so bespattered Goodenough that
he was so ill a man, tliat Gooodenough, I be-
lieve, could never digest it well.
X. C. J. Did ^
after he was admitted 1
Gc^righi. Truly, I never was at alderman
Cornisli's whQe he was sheriff: bat I heard
tliat character of him.
X. C. J. And what was the reason y oa did
notgoto Mr. Cornish's ?
Gos/right. No, 1 believe Goodenoogh nevsr
came there, but I was at neither of thdr
houses.
Just Levinz. Pray, how many jariea did
you help him in ?
Goifright. Truly I was so little aoqoainted,
I could not help him.
Just. Levinz. I hear other people aay the
contrary.
Go^right. I was but neivly come into Eng^
laud, and could know no man.
Cornish. Alderman Love.
X. C. J. To what purpose do you call bin,
Sir ? To the same ?
Cornish. It is evidently to declare how modi
1 was imposed upon.
X. C. J. Psha ! I will tell the jury, I wil
do this for you, upon this man's testimony*
that you were unwilling that Goodenoogh
should he under-sheriff.
Cornish. My lord, there is a great deal more
in it.
X. C. J. What is there more ? Ho nefer
heard an angry word between you during the
time, he says, afterwards you admitted bim 10
be under* sheriff.
Cornish. Mr. Love, will you please to de?
Hare to the c(mi) t, w hat aversion 1 had to Bir.
Goodenough Ikmu^' the under-sheriff.
Love. My lord, 1 did receive a subpoeDO last
night, anil I wondered at it, I confeso ; erer
since I was so happy to get out of puMic em-
plojr'ment, having apply ed myself to my priroie
afiairs, I never came to Guiki-Hall. Bnl all I
can say, is this, that when it woa uoUicly
talked upon the Exchange, meeting Mr. Cor^
tjisti upAh Ibr? ttT(*hrirt*rc* T rftil hear htm in*
cUneit to \m'
to liii his ut)«
Mr Goodcnuugli, iuiL wa.s
inttii r Init it is «o lon^ agn
p€r»aAcle him, having been sii
Vcfirs a^o« to IVfr. nii!»liii(r\
1 r.---- ^ -: ' - ^ ^^:-'. .
hitlj «. wiij|P4.n.i, mill l.v. i.»i.5
t«ke Ihi* miuj.
L. C.X It-
■'II ;
u uniiM ; lijut 1
I, E (lid hear
ipo^i'd upon tu
lutr^
^
wtm h fiftfr the time ?
ntcheU upon a
tl to one Mr
Milbournei or iMUhiiaci, or some stieti oame,
tbfit 121 all I CUM say.
i., C X Do ^'on think Ave sit Ut*re lo hear
Impertinencies ? Got) rorhjiK Nrr, 1 should hin-
der you fVorit giving any evuleoeej but this
h ncit at all tiiiiteriaK
CmuUh. If your lordship please to let Mr.
Jlekyi I'onie, he will lell yott whnt this maD
did decUre* why I wa«» a;ifalnst hiiu,
X. C J. 11" ytMi had not eiitcftttined llr-
Goodc^uoughf thtii tht '"" "Mr.],! it., ^oinelhing
6f mulicL' in it •, hul y iik
ComwA, I had privj'.j - ..IjUethcl,
wfone 1 would let him come mtn ihe oOice.
tUt. Jf ti\t, in.\v ni.iv you declare to my lord,
R]i ion T hnd against Mr.
C»i L'nk'r-sheriflr?
Jt^y/. Tiuiy^ my lord, alderman Coitiish
&nd I," living near tog-ether, I !iad occasion to
go to him several times about hi lb of ex-
chanu^ ; and he told me^ when he wms <{heriir»
how he was tmnbttMl with Bethel, because he
would put <roodcuough upon him i for I do
n* T • 1. I t - ..^ he, for I koow he
is 1 (fovernmtut, atid
di^^M,,. a i\ Bethel sihout it \
but I had IV >E>Cti with him till he wms
ftberitf : atj*) >ie to me, to desire me tu
fl|>eak loa!t; frni^h to receire Uood-
CDou/S^h. li . i, I Itnd him so arerse
n^iast him, tfiat it un not for me to persuade
him to take a stervant he must put euL-h trust
And coulideoce in. For I t»avt aldermaii Cor-
nijib waa »o averse lo it^ thai I would not
do it.
Soi. Gen. Pray do yon think iti your eon*
I
to tne govern*
iliel, was?
hcanl much
ird that Cor-
^o the goveiM-
acience^ he ^■
im-ntihan k>
Jck^l. I
tfaheriff Br
fiiah was ati_> w.^^.^^.,,..;
mt'iit*
Stil Gi-Ti. But which w;i» the mo»t disai*- |
r 10 ihe government, Hetbe), or i
Jckt/L Tni\y\ a» I reniPmlH^r, !»e said^ he
wovtf'f not hnvr Imn, hecaniie he wa» ohnoxioujj
to nt'rnnif'nt ^ I
. Thia gt^ntlemao waa in «
Ii> plot hiin»cir; ojk grLmt a rioter, ,
61 i any of them, tbiit cvid^-nre that
Ibey iHi - I Temenib(»r y«tt| Mr. Jekyl, 11] i
Miiir« yon.
yir W. Turner, I don't remember that cffl
I saw Mi\ (ioodenough*B face '^ ' - '^ - time» '
$0 I have noihirig ui all to say ^^ npr
can 1 s;iy my ihin^^, hul what ^,,, . . ,.; ,li told
me ; and that wa^^^ he once came to my house
somt^ tiiiii' :i[\v'r he was chosen shcriti', and
toUl 1 "fr, ISethel pressed Tery rouch
for til icnoiitj'h to he his nnder-sheritt*;
that he had iio miraJ to accept himf nnd he
won Id propose another, and it caused a great
difTerenc^ ; but it was at la&t com[H>s€dj but
how, ] can't ielL
L, C. J. Notv, Mr. Cornish, by my consent,
if you will, call all the aldernu'u'upon the
bench ; whether they will, or will not, say ih©
same Ihio'f ; for my part, 1 will a;*rce,' that
they have git eri evidfence (if they will be con*
tented themselves) to the same purposie.
Cornish^ My lord, t shall not give your Ion!-"
fillip mm^ces&jiry trouble, but 1 think it is con-
venient to call sMiu' wiiiuss.s Ui prove the
manner of my I
L, C.J. Vo njthediMp|.
Cornhh, The dcau of Cvinierliury, Dr. Til*i
lotson. {Who did not appear.)
L, C. J. Will any man attest your lojalt;
in London P
Cornish, The dean of Norwich, Dr. Bharp^|
Is the dean of Norwich here?
Officer, Mo, 8ii%
CornUh, My lord, here is Mr. Lane, I dc
he may he asked what he knows.
Lane, Upon the trial of my lord Ru
according as Mr. Cornifch desires 1 may
heard} it la with t cs[>cct to colonel Rumsey's
evidence ; colonel Ilurosey says, in my lord
liusserii TriaK he did not hear the Declaration
re: id, because it was read bcfoi-e he came there.
Mr. North, Werts you present at my Ion
RussePs Trial ?— Lanr. No, Sir.
Juwt. Lcrinr, Sir, that jjigtiirtes nothing.
Cornish. Thatisavery mateiial thing, mj
lord.
L. C. X What 16 F It is no proof at ath
Corn hh . Not * i I trial ? — X. C /» N«
Cvrnuh, \X 1 Uy,
X. C. J* Any iH>ti V ;i)at wss present iQm|
swear it.
Cornish. My lord, I desire T may have th^
miiii!>ier of thu pari»h» Or. Calamy, for
constijncy at h»v i^.m**!* » horcb, and receivin
the sacrJiinent. to the ritei# of
church of Eu; i I um, to all appe
Hurt}, 31 persofi liiat doea ai well alTcet toe \
vc-rtiment a« Ao^ «i>au,*
tUl
pfM^af*!
^ 8ee in thi** CoH««!tinn the Gate of Russell
Tol. 9, p. (i'il ; the Cn«e of Hampden* vol. 9i
II, \uOQ ; the Case of ItOBewcll, vol, tO, p. \%Td
Hani ' '' X, y. 179ipat ndfczM to in tb«^
Not! '.'ases.
435]
£. C. J. I doubt you arc all appearance.
Dr. Caiamt/. BI y knowledge of Mr. Cornish
hath been since 1 came to be minister of the
parish, which is about two years, a little abo? e
two years ; w henever he was in town he did
use to come to church as constrntly as any
one, and come with his family to prayers, ancl
did come to the sacrament, and he dicf not only
come at Easter, to save himself from a present-
ment, but at our monthly communion ; and
since I have been minister of the place, I have
otlcn conversed with him : All that I can say,
is-*, th.at I never heard him say a difjrcspcctful
woni of the i^overnment.
L. C. J. i ii0|>c he took you to be a man of
anotlter kiilney.
Dr. Calami/. I marked his uords, because
^ of the clmract( r I had heard of him.
Alt. Gen. Pray, what was the character lie
had befoi-c those two years ?
Dr. CaUtmif, That was what was public.
Cornish. Joseph Reeve, esq.
Mr. Reeve. My lord, I received a subpoena
from the prisoner at the bar yeste-rdny. 1 have
been acquainted with him about fourteen or
fifteen years, and had a considerable trade with
iiim, and sometimes wc had some conversation,
and drank a glass of wine together ; 1 tliouu;ht
he was always vrrv loyal, and drank the late
king's health, and 'this king's health, and all
the royal family. I have no more to say.
Coniiah. Mr. John Cook.
X. C. /. What do you examine this wit-
ness to?
Cook. My lord^ I have dealt witli hhn for these
twenty years last past, 1 ahvays found him a
Terv honest man, and a just man, and very up-
right in his dealing, I always reckoned him a
very honest just man : I have dealt with him
for great snnis, and always knew him very just
and upright-
X. C. J. Your observation of lihu as to the
government,
Coiik, I never knew any thing to the eon-
trarv, but tliat he was al\t*ays \ery loyal.
Cornish. Mr. Johu Kuup.
X. C. J. Mr. Comiish, it is not impossible for
you to produce men enough, that shall say,
tiifv know nothing against you concerning the
go\erniiiciit ; anil that \ou hu\e hi-i ii a loyal
man, sure those \ou eliuse. will siiy so, you
ha>e chosen them; aud, p<Th;»ps, if it were
the bu&flness of ihe king's (M.un.^el, they could
do contrary : you are i.oi aiccust-.l touching
jour g<-ii? ral c«.-n\er.satiMi, hiit concerning a
paitic'uiai' iii(t.
C;rmJi. It is j"'.;i[>r(ihai,ii- 1 ..houl*! he a per-
son citr concensi "I in these ii::tt('!s; if ycu
coDsidt-r, \rii fiiid Cornish njCiV.loutd only
about bLJrjg there.
X. C. J. J):)cs not 3Ir. Kujii* y tc!l \cu ihe
meaning whvj*
Corniih. fl is very strange a man >iii(uld hi-
at such an helii<h Uifetirg, itinl i see him Kiw^r
aud «»V€r so many limes, an>l never speak of it
•gain.
X. C. J. 3|r. Cornish, do ziut you kkuw tliat
1 JAMES 11. Trial of FemUy, Ring^ Mrs. Gawd, if Cornish, [486
Goodenough could not be produced till tlie re-
bellion in the West?
Cornish. Is it probable that I should enter-
tain any treasonable discourse with Mr. Good-
enough, when 1 had so much opposed bim in
coming into the office ?
X G. J. But you let him in.
Corniih. It is known to hundreds in tliis
town, that I was imposed u|>on by an anrea-
sonable man ; my innocency is as great as any
man's, and my virtue should be considered,
when I have been under thesQ. impositions: 1
have l)een loyal and dutiful to my prince, and
faithful to the government in an respects; I
have opposed all manner of heats, as much as
any man whatsoever; I can bring hundreds to
shew that where I heard heats I allayed them,
and it is strange I should be such a man as I
am represented here.
X. C.J. Have you done. Sir?
Cornish. My lord, I have thus much iinihcr
to bay, that I do think there is no probability
that I could be at this meeting ; though a man
should have a care how he takes God'a name
in vain, 1 have said it, luid I do in the presencs
of the great God of Heaven declare it, I wu
never at tlie debate about these affairs ; I take
the great God to witness, 1 would not do it tor a
w hole world, if I were not innoceut. My lord,
it is most improbable w hat Mr. Rilmsey says.
X. C. J. It is a probable thing that Kurotey
should forswear himself, it is a probable thing
that Goodenough should forsu-ear himself, who
have taken the great God to witness to the trutb
of what tliey swear against you ; but it is im-
probable that Mr, Cornish should not speak
the truih.
Cornish. I will call some other -fnends, If
your lordship please to prove my loyalty.
Knap. 1 ever found him a fair, good pay-
master.
Ait. Gen. lie calls you for his loyalty.
Did yen never hear lum speak any thing
against the government?
Knap. 1 hr.ve not been in his company but
now and then,
Cinniih. Did you ever know me speak tor
tliiiv; against the government?
Knop. No, Sir.
X. C. J. 1 marvel that you who have beciti
an alderman a gi-eat while, don*t call some of
the aldermen; you have called sir Williaa
Turner, a very worthy alderman, I wonder
you (!on*t call some others of your brethrei^
that are know n persons.
Corni&h. Mr. Carleton.
Cdi'ltlon. I have been acquainted vrith nj
cousin Cornish ever since the year 1661, when,
being a merchant, trading in cloth, I began my
acquaintance with him, and afterwards he re*
coniinrnded me to the party I married, ud
l»eing relations, we had e^i-eac intimacy toge-
iher ; 1 have been several times at his houe,
he did always assure me of his loyalty ; I bare
told him what 1 have heard people say abm^
but he did assure me he was loyal, aoA \m
hope the very same of bim. J '
^ff] ^^^^ Jbr Iligk Treason.
£. C. X But you remember von Imve
beftril tliftt he was notji person of such erDinent
loynlty.
Carltton. That was upon ihe accMrtinf, my
lort), of ins [ftm^ m uiib Bt^thel ; hut lie ituJ i
^tl^nys assure roe ot it.
Corntih, My lord, I hopi; yoor Inrdship \\W\ |
consider w tiut temper the uiaii was oi' that I
was to be witfi^ skwA how obstinate he was ; and I
I hoi>e ) hhall nat answer for hi?< crimes. j
Mr. Just. . Mr Cornisli^ Whv did you ,
qualify yourself to serfe with himl* for y*^"
were not at (irAt (jtyitttied.
Comlih, I had beeo travcUiug up and down
iti the country.
Mr. Just. At that time to qualify your-
self to be an officer, then ynu could lay tistde
all your scruples, and receive the sacrament.
LornUh. Joseph 8mart, esq.
Hmurt* I b&ve known Mr. Cornish above
these twenty^ years, and dealt with him consi-
derably, I never knew him bur a very tiitr
iksaler*
ComUh. Mr. William Crouch.
Crouch, 1 have had acquaintance a great
while with Mr. Comish, and have haJ several
dealings ; I found him a very honest deal«;r,
and a good pay* master.
L, C. /. \Vhat know you of hi* loyalty ?
Crouch, For his loyalty, ! took it as the town
did, though I never knew any disloyalty from
him.
C^mith, Mr. James West,
L. C. X Do you think yoo profit yourself
Wtlb thiss testimony?
C-Qrni$h, 1 would not offend you.
L, C X No, no, you do not'otl'eudi I would
gladly hear you, if there were any thing
pertinent lo your defence.
Just. .iririiMj* Mr. Cornish, you have this
bappiness, that you will be trii'd by your fellow-
cituoDSi 0^' very ip>od quality aud understand*
injK', I must needji tt^ll you.
Cornish, I am satisfied t have appeared bei'e
with all the core and caution that oecomcs an
honcHt mtin ; I have spuke uothing^ but what I
have considered as I have been in presence of
the jin^eat God ; I never was at any meeting',
jior never heard any thing of this till the trial
about my lord Russell, never heard one word.
L,C* J, Oentlcmen of the iary, the prisoner
at tl>e bar, Mr. Cornish, is indicted, that know-
ing that there was au in«urrectJoa intended to
t>e against the late kin^, of Messeil memory, he
di<} hr'^n^iM^ to bo adding and assisting in K ;
tl» 'jlntaiiceof the indictment There
lui . i! i>va witiiFHsji-K itrmluced, Mr. Rum-
§ey and Mr. C- : Ramsey's testi-
mony (so liu* as I .K i • remember, after so
long a diseonrse, and so much time tliat hath
b#en spent) was to thin purpose ; that the duke
ot ' tli, the loni Ruijsell, Tcrgusoo, and
«i! ■■: in Mr, Nlie[ipard's house, there
Ci* ' 'Ir. Corntsii^ and excuw-d hira-
ii ! iute, and smd, thnt he was to
depari tiom mem very siieedily, because he
WIS to go to atiend the bysiti«s«'(as 1 take it)
i
A. D. 1685. [4S8
of the charter, where the presence of an alder-
man was necessary, nnd none like to be there i
but himself; ihatPer^'uson imllvd a paper oufl
i»f hts bosom, so says Mr. Kumscy, aad imoif]
the desire of the cotiipauy, it \va^ read to Alr.T
Cornish, nnd Slieppard hehl llie ciuidle ; thi.rti]
were tliese twupiiiuts, Uiimsey s»ys, they had]
og-reed ou in that paper, whentlie nosing Jioulitj
he, they would dednre for lihtriy of coiiseieuce^l
iim I for the restitution o1' those lawds, hiiiiiopal
tuniU, and king*s laiidrfi lo those periions froiiii
whom they had been laketi after the kin^'il
restaiiraiion. This pD|icr being read h> Mr.^
Cornish, he said, he did hke it very well (thee<
were the very words of Itunisey), and w ith that!
poor interest that he had in the* world, he wouldl
Join in the assistance of them, for tliiir^e endai
and [larposes that vvere mentioned tu tliat de*'
clanilioD. Then comes Goodenough, and hoi
tells you, that he came to him in liis parlour, I
when be was sheritf; said, Now there was uir
safety, no defence at all by latv, all was goneJ
there must be some other course taken, for thiti
law" would not sufficicutly protect tbeuL ^^^by^
says Mr, Cornish, I mai^el they arc so slow iii^
the city, when they are so ready in the country,'
Ay% but says Goodenough again to him, thenij
bath been something done in the city. Tbitfl
was after the time that the city had been putj
into several divisions. 1 do not see there is anj
testimony tVom Mr. Goodenough, that Mr.l
Cornish kne%v any thing of that ; hut says hej
there is something done here, the Tower is t«l
Ite seized, there is tlte magnxine, and that is tai
be seized upon, and then we shall be able to doy
something : says he, I will do what good 1 can g
or, says ne, what I can ; he is not cunlidentf
whether of these expressions he did use, 1 will
do what good I can, or ( will do what I caiit]
Afterwards he meets Mr. Cornish upon \ht
Exchange: here, I confess, it is notFoe\pressl|
to be applied to this pur|K)se, that it doth faisteiii
directly upon the point in Ihe indictmenl ; but
says he, how do affairs go ? how do uur offaii
gt>? says he, very well : this is the testimony!
given against him. If this be true, notwuhw*
standing Air. Cornishes protestations of his J0«<
nocency, sure there is nothing dnth mo
plainly prove this indictment than this testi-
mony. He says it is improbable, very impr
bable that 1 in my circumstances, that J shoub
say so ; it is improbable, because Mr. Rumsejf
bad acquaintance with me for fomteen ye
together, that 1 have dealt with him for
sums, and that I should Bi*y it in his pre
never but once ; and that Rumscy does stiy,!
he never heard him speak any ihtng to that
purpose, but that one time ; and therefore it i|
mighty improbable I should say so. Bu
what is the reason, says he, that this was no
discovered before.'* To this Rumsey give
I lositive answer, truly^ says he, Mr, Cornish, 1
md more iH>rnpnssion for you than for my*
self, 1 have suffered for it, you have not viif«J
fen*d tor my silence. Then* Gooilcnougll'i
ought not to Uealloweil to Wa comjieteot wtt-
iiess, becauite when I^Ir. Comitli and Birlhe)
43&]
1 JAMES II. Trials of Fernlejf^ liing^ Mrs. Gaunty Sf Cornish^ [440
were chosen sberiflfs of the city, Mr. Cornish was
inu<'h against receiving;: Goodeuoiigh to be his
deputy, and Goodenouu^h must say all this ma-
liciously afraiiist hiui, because he so much op-
posed his bi:in;if iuider-i>heriA* to liim and Be-
thel. He hath produced sevi'ral witnesses to
that purpose, and they say there was some rc-
luctancy in him to the receivings Goodeuoug^h
to be his under-sherifi'*, but it is plain and
clear to vou all, g^entlemeii, and every body in
the city knows tbatGoodenou-^fh was his under-
sherifi^ and how well he served him, and to
what purposes I believe many of you very well
know. Anothci imnrobability is, that he should
admit Goodenougn to come into his parlour
alone, a man that he had so much displeased ;
but if so be he was once against him, he did af-
terwards take bim not only to be his under-
sheriff, but employed him to be his attorney,
and then he might very well admit him into
his parlour alone, to discourse of his business
as an attorney ; and this might full in amon^
other discoui-se. Gentlemen, there arc several
other witnesses produced concerning the ho-
nesty of his dealing, and the honesty of
his conversation, that they have nothing at all
to say against ; but, gentlemen, in a popular
city, where, he is, and hath been so well known,
it is a very easy matter to bring millions of men
to give the very same testimouy ; and certainly
he %\ill bring none, having the choice of them,
hut such as shall speak in his favour ; but he
speaks in the presence of God, he speaks from
the bottom ol' Iiis heart, that he never had any
such disloyal thought entered into his mind.
Genilemen, hath nobody any sense of the pre-
sence of God but Mr. Coniish ? Hath not Unm-
sey called God to he a witness to his oath?
and Goodenough huth done the likeP Why is
it maliciously against the life of Mr. Cornish ?
Ft>r 1 don't know he does, in the least, object
any thing against Kunihey, that there was
ever any displeasure bctueen them tuo? AVhy
should he deliver this testimony, if it were not
the testimony of his heart ? and that which he
suys himself, he had too long concealed out of
the conqKission he had for him. Gentk;men,if
a great many |)rotcst:itions and asseverations
should make a man as innocent as confident,
no man should die by the sentence of the law ;
it is an e<'isy matter for auy man to take up the
same assurance and conhdence that he hath
done : And for his being such a churchman, as
he now pretends Iiimselt'lo be ; for that is one
thing by which he would argue the improba-
bility of the iW\ii%i and he would Inue you lie-
licve very mucli of his Io\aliy Irom it ; Gentle-
men, all tl.e I ^iik-nce he hath given, is but of
two \ r:\rs sii»iulipg, and hince the trial of my
lord kussel : am! Nueh a man as he, au«I many
men th:>t v.ii\ ( onscious to thcmselvtrs of their
Ijuilt, uiti think il V(?ry fit to purge themselves
iliat way, to gain themselves a good opinion
that they were loyal to tho government. But
it is not denied by Mr. Cornish, tiiut More
l|iat time he did nut frequent the church, nor
ipoejve the fciucraiocnt.
Comiih. These seven yeare, my lord.
X. C. J. Who did say so? Sure no body i
so yet. 1 repeat the evidence truly, all yoa
said of that was out of the mouth of Dr. Calamy«
Cornish. Dr. Calamy came in but Ittely,
and his predecessor Dr. Whitchcot is dead.
Just. Within*. Sir, you were not qualified
for your office if you bad not took the Sacra-
ment.
L, C. X You did lay aside all your acruplet
to quaHi'y yourself to l>e sheriff by reoeivisff the
Sacrament, which otherwise you could not
have been. Others that have spoken of your
conversation likewise say, that the report was
abroad, that you were not so loyal ana finn to
the govei-ninent as you ought to have been.
Gentlemen, you have heard the evideuce ; I
have done my endeavour to repeat itfaithfuUy ^
If you believe that he did nromise to aid or
join, or agree with that rebellion or insurrec-
tion, then you ought to find bim giMity of this
Indictment.
Cornish. I am as innocent as any mortal
roan.
Then the Jury withdrew, and after a consi-
derable time returned.
Cornith. My lord, I hope I nuay iiave qli^
word.
Just. Wilhini, No, not till your verdict
Barou G/i'gury. Mo, no, 5lr. Comisb, «Q
can't.
Corniih. I had a witness more that was very
material, but 1 wouhl not offend your lordship:
Mr. Rumsey said Mr. Sheppard held tbecaofua.
Just. Withins. Why did not you call him?
You called a u^reat many impertinent mitn^saes.
Cornish. I was not come to hioit 1 ifQuld
have called them in order.
Baron Gref^ory. Why did notyoo pvodi^De
him then ?
Cornish. Because your lordship seemed to.
he aiiiiry.
Baron Gregort/. No, not at all.
Cornisii. 1 did forbear purely upon that ac-
count, i pray, my lord, let him be callefl-
Baron Gregory. Here were eight judges
and my lord chief justice, and now here ly oq|^-
two : Do you think we will defer things oC
this nature ? it is never asked. Apply youi;-
self to the judges : it is a strange thinif.
Just. Withins. This is only to dela^ timtt*
Baron Gregory. If he does so, thejpry ipi|iii
go out again.
Just. Withins. After the jury hath been. pill
an hour, we must have new allegations.
Cornish, I was tender of offending.
Jubt. Withins. That is a reflection upon th^
court ; under favour, Mr. Corni8li» I toldy«g|
myself over and over to call }our witnesses.
CUrk, Elizabeth Gaunt, hold up thy _
Mrs. Gaunt, 3Iy lord, I beseech you,
me, you won't take advantage I hope oC ^9fim
Just. Withins. I declare my QplBioa '
it ought not to be 4one.
_i»]
J<yr fiigk T^emtQtu
%ccord*i:, I tiiink lUe <iu^bt lo hate il m
" |4'tither.
i Orfgofy, You ctiU never a iritiGii.
Count, Nt^ ^ir, i i-qulij oollidlU I
J <jiif. 1 ato of tbat o{itmon you
ougUl lu Uk« Miv vcrtUd .
||e J tH ,x ^9. U%uiift Gtitlty ,
L. C. J* Is Rutnsey cooii in?
Capt '' ' • tm. 1 &MkV« f<9t for hiis, be
will be 1 itly,
C'yi^K* /. ■* I iord, I must pniy your lord-
ship, (u f^>n^idt«r my l^nikrotrvvH in ol&a^uig'
you, wbich nuiilo mo omtteaJlini^ Mr. $Ue|i'
parcl ; I had Uin in my paper, he i$ b my
pttp**r.
L. C. J Don't you \^i;ln yuur pn face swrn^'
t)^nff u&to\%i£rd)y, n^ tliou^h thf rourt iv<ia|j|
n<it ao you ali ti' tiaU^
dozen times y^tt raU ibr
ptf -. \ow t tm sure,
. MK'[ni;inl s imine in ycuu' ^aptr /
iConuift. VtK, wy ioir<i> but t wa» tender of
|fffidiii|f ; pr»y, tiiy f ' * f^eaiitHi to «-
member Mr Kmnsev
L* C\ /. is 34r, Utim-t > ^trc ? Sir, pray
liold your t<ingue»
-I// <'"]*./ I itiiriiii :w -111:, lilt vim niv I'^r'l, I
tirH .^^,: . . . - :_. .u. . -...^h**
&oa Willi ujth bj<i ,, ami Ue ban nb-
scotiUcd ; thi^ i '< ut ancouittof upoa
Q«lb : Til 11$ my bii:it» ci « dan^rroiw practice
after exuuiiiiatiaii, ar»d after Ibe jviry is ivith-
Ca'HtfA. 1 pr9y tjo not aggnvata the matler*
Ait. O^*** i muHl d<f OAy duly for the kictir.
CVao/i. ^Jy Aon ^i^ut to hliu, aiul ibund
tam at church,
Alt, Gen, Nou- Mr. Atterhury is jB^ooe. I
dc-i "' ' *■■■ " - -':u but not
.^>..vv *.»^« .^.1. .vutpp;4rd's
I'or noiPi *iiiLf*. rould A*OU
ax lud it>r-
g. ■ l?nt I
li*> .)li biiuff
k* :t is rrqi,
W . , ;tt^ Uiuii-
w^y vbuuLl bu bt.- V,
Ju*ii. Wtifttm. t » have Aitcrhury
kere, u> 4?rn]»iij4» u in I'id ab^itmd ; if Mr
CortllKb'fl MHI WlUi WaU> llilU, Utid b*-' :^ll^^l'OU1J^'(J
lipati (bat nccciun* * .ittij.il. Ibis
k a Ititcr h u'.k p',1 s ci .d'uce*
r r JL""<' ■' ■.-^•i t-
utt km, wiLbout you luv« iu*d aome notice
CorntM. My lord 1 wca ont cooifi to him :
ay lord, iboo^h 1 Unre such* a vtte ektr^o, I
am perfci^tty mtioceut
Just. \\ahif^$, NoMT you mfty seo wl^we^
hftve gfot. \
Cornhh. I boj»e?ch yiu, my lotd, coiiiiditf».|
ii^e, it ijt« da iinpruUable a thing at auy ia j
the >irorW. 3
X. C. J. Thin is running over Uie atoie Ihligl
nventy tiiciet». >Ui«ro is Khejuiard ? \
Qgrniih, He Was h«re \riibiD (bis quartov of 1
an iiour. ^M
Juki. fri^AiiM. Mr. Cortiiali, is this ^iily j
done^ \tben you siaid he wuiji upon ttte »(K>t? |
Att. Gen, He whs sub|H£ua'il by you, he
M'oub) uot be foitrMi to be Kub|Hi;naM by the ktti^* |
Jvijjt. Lt.vinj. To umke the court euiii^l
<lo%rn, ttud tbeu to. biive no uotice of the p«raioa.|
at ail ; aure yi^u may ^ive the court l^ave t<» f
take notice, tbattb^y are not civilly deaitt wiih
L. C, X Wbu told you he waas here?
Corrm/t, Tliis geuUemau my%, ho «aw I
Pmj, my lorfl, do mi beot&nded,
L. C\ J 1 never itaw aueh a tbiag \ Ih^l
time waa, you and your partner would not hftvsl
allowed il. ]
Alt* Geu. U he «oiiie», J will gi%« huii I
liis oatb*
CorttUh, My lord, here Is major Ricb
Ofui heur miiue^s t said I uiui:t m_
Mr. Hbt'ppard ; 1 named biro beibte
lUcbardboQ ag^aui aud ag^ain, aiui said* I !
not omit bini,
J i\st. Lcrtnz, Sir, T tell \ou what $ yoaj
have uol sdie^cd lo little skill tu day berethull
that you cmibl iiiuitiiain &o long u dia(X)ur
wiib Mr, ItMiMiMdy as you vvere alloii*ed to dO|]
aiid%hould not ujler t\» call Shieppard to coo*
tradict him ; you dwelt half an hour uood it,
Bar. Gm^artf. And reJuMi ouly upon llie im«
probability of ibe thiu^.
liitmsty. Tfiuj'e is another j^entlemau m Ih^l
Tower, the kite lord C^rey, that wan m com*
pany h beu tli^e diclaratiuti tvas read*
liar Gregory* Have you be«o in coa
at 8he(t}«»r*ri» i'
CVfM4/i« i l^ve heea lU Sbeppiy'd'a ?«rj
often. Pray^ my losda, do not be o&eoded^ m^
life WTJI do you/tto good, 1 do noi kauMr, bu
htifo it» a tj^euiic'iuan tkal batik been to.uiy cum«
pany forty times over since thiit buauie«s,
Siumtiy Fardon me, Hr. Cocoisb, not aboi'^l
tima& since, and tbeu there was othcw]
my^
Jtw. WUhini. It 19 imposaible for any, 1
thowe fhat were comp'iceii with you* tu a
- I tee ; and, because tbey were ye
now you will not l>eht*te thfin,
L., c ' >. Ar*' V ou itubpcenji 'd by IVI r. Cornish Bl
Shcppiird. 1 have a suhpo^iiu from the kiu
L. C.J, But were vou i»ub|Heued by T
Curukli ? — Sheppard* ijfep*
^" '^ n. When?
/, Last flight I thla morning i ««
., . _.. . -.iiie.
Mt* Gm, Wij^t Mr Cornjftb^a too irjth
lyiKliMrdjiy iu the atUrooon P
jUqi|»ari^ Yea, Siir.
1 JAMES II. Trials ofFendey^ Tting^ Mr$. Gaunt, Sf Comiih, [iH
of his shoe, he puiled off his shoe, and pulM
it out there.
Sol. Gen. Do you rememher Mr. Comiih
wcs by any time that night P
Sheppard. Truly I cannot say whether it
was that night when the paper was read, but 1
do positively say that there was no paper read*
for he was not looked upon to he or toe com-
pany : Mr. Ferguson told me positiTely, there
IS the duke of Monmouth, my lord Grey, my
lord Russel, sir Thomas ^mstrong, col. Ram-
sey, myself, and you.
SoL Gen. Who did Mr. Cornish come to
speak with, when he came to your house?
Sheppard. Truly I do not know whether it
was with the duke of Monmouth.
Sol. Gen. How came Mr. Cornish to know
the duke of Monmouth was there f
Sheppard. Truly my memory will not
call it. «
Sol. Gen. Did his coach stand publidy at
your door? — Sheppard. Whose coach?
Sol. Gen. The late duke of Monmouth's.
Sheppard. No, Sir, they all came private,
there was no coaches at the door, as I saw, I
let none of them in.
Sol. Gen. Was Mr. Cornish but onoe there
when the duke of Monmouth was there?
Sheppard. But once.
Sol. Gen. Did he call the duke of Monmouth
out to him ?
Just. Street. How came you to carry him
up to the duke of Monmouth, if he were none
of the company ?
Sheppard. Mr. Cornish did go np into the
room and spake to the duke of Monmooth, or
some other person, but I think the ddke of
Monmouth.
Sol, Gen. Do you remember he was there
in company, when col. Rumsey was there ?
Sheppard. No, I cannot remember thatl '
Rumiey. My lord, when I came to Mr,
Sheppani's house, Mr. Sheppard came down
and fetched me up, and I delivered my message
I had to the duke of Monmouth, and to the
company, and indeed I was not a quarter of
an hour there, I believe ; but by that time I
had spoke my words, 8ome-bo<fy knocked at
the door, and Mr. Sheppard went down^ and
immediately brought up Mr. Cornish into the
room, without asking a question of any body:
and when he was come into the room, Mr. Cor-
nish said, he could not come sooner, because ha
had business ; and could not stay, because tbcru
was a committee for the management of tht
chailer to meet that night, and there was a ne-
cessity of his being tliere, because there
never another oldermau in town, and
must be an alderman there.
Att, Gen. Mr. Sheppard, do you remember
any thing of that ?
Sheppard. No, Sir, I do not remember it, 1
will assure you.
Sol. Gen. Did you Jet him in at the door?
Sheppard. No, Sir, 1 had word broagfak no
up stairs, that alderman Cornish was >ckiw ^ .
and I went down, and brought him up. ' "^
443]
Att. Gen. And what discourse had you with
his son ?
Sheppard. He was very pressing and uqpnnt
with me to be here to day ; and 1 told him I
could not tell whether I could or not.
Att. Gen. Is there any account between
you and Mr. Cornisli ? — Sheppard. Yes, Sir.
Att. Gen. To what sum?
Sheppard. We were always trading.
Att. Gen. That is very true, you were
trading ; to what value ?
Sheppard. About one or two hundred pounds.
Att. Gen. Who is debtor?
Sheppard. i am debtor.
Sof. Gen. Mr. Sheppard, since when did
yon contract the debtr
Sheppard. Since when. Sir ? — Sol. Gen. Ay.
Sheppard. I believe it was some six or eignt
months sgo.
Sol. Gen. For what was it ? Upon what
account ? — Sheppard. For cloth. Sir.
Sol. Gen. Was there no money lent?
Sheppard. Money lent me?
Sol. Gen. Ay, Sir.— %p/yar(/. No, Sir.
L. C. J. Is the debt due to Mr. Cornish ?
Sheppard. My lord, the debt is due to him.
L. C. J. Or some body for whom he is a
factor?
Sheppard. I am indebted to Mr. Cornish, for
whom It is I cannot tell.
Sol. Gen. Did you leave word, whither you
went, when you went out yesterday ?
Sheppard. No, Sir.
Sol. Gen. Which subpoena was served first
upon you ?
Sheppard. Mr. Cornish's yesterday.
Sol. Gen. What time was it served upon
you?
Sheppard. Presently after I came out of
churcli in thcaflcmoou,Sir.
L. C. J. What have you to say ?
Cornish. My lonl, Mr. Run^sey was pleased
to give ill his evidence, that I had Iteen at a
consult or meeting at Mr. Sheppard's house,
where Mr. Ferguson should pluck out a de-
claration out of his bosoin, and should read it
by the candle, and Mr. Sheppard should hold
the candle to him while he read it.
L. C. J. Do you remember Mr. Cornish was
ever at your house ?
Sheppard. Jit one of those meetings that was
at my house, Mr. Cornish came into the house
to speak a few. words with the duke of Blon-
mouth, or some other, I cannot be positive in
that, it is so many years ago, and did not stay
half a quarter ot* an hour in the house ; I
came up stairs, and went out with him, and
there \i«is not one word read, and no paper
seen while he was there.
Just. Lerinz, Was Mr. Cornish in the room
with the duke of Monmouth and those others ?
Sol. Gen. Mr. Shepyard, do you remember
that the lute duke of Moumoutli, the lord Rus-
sel, the lord Grey, and sir Thomas Armstrong
were there together, and the declaration read ?
Sheppard. I remember there was a dedara-
fkm. read, Ferguson pnUad oot a decteration out
445]
^r High TrciUtim
SoL Gm. ]>id^ou ask for BIr. Cikmifih to
tome up ?
^hrppard, 1 cto not rcmcmlicr I did : Wbeu
Mr. Conu^b was there, there was not above
Soi, Gen. Wlio were lUey ?
S/teppard* Thtrf ««»« the dutte of Mon-
inouih, Hnil there \»a*i IVIr, Ferguson* and tndy
I canuoi tell ivhtthcr the oUier wajs my brJi
Rujssell, or my lord Gtey.
Just. Ltvinx. Yon acknowledge now. Sir,
joii did cAi'ry the prisouer up to the duke of
MoQiuouih aad Ihos^,* persuns* Did you use
to carry uU tj^rsoiis up there ?
L. C. J* There m as a cabal of rebels met
together, «i>d you go and brini^ up this roan to
them, u'ithout amy leuve or hcence from them ;
which is mcrediblp eertatdy, unless you kneir
him to be one of tlie comptuiy, and equally
^ngiifed with them,
Sal Gen, Mr Sheppard, you say, when
Mr. Cornish came up, there was uot iialf the
company there. Hud they been there, or were
they not vet come ?
Just, fV'i/Aini. Look yoo, Sir, it is marvel -
bus how Mr Corni«ht if he were none of the
parties^ should have notice that the duke of
Kloiimouth \«as there, who came m privately'
at ibe bick-door, utid came to speak iiith htm
djere,
Shcppard, ^^y Tord, 1 have no baek door.
Just Withiui He came in privately.
Juit. Levin:. Mr. Sheppard, I think l heard
you say^ they came privately wiifiout their
coaches.
Sheppttrd. Yes, Sir, they had no coaches.
Jtifit, Ixvint. They came privately, 1 sup-
pO«€, that no body should know tLey were
there ? — Sfttppurtt, I «iippf>»e so, 8ir-
Just. /nrfiririf. Why ihin did you carry Mr,
(\..n,^i, ..,, ; If yt»u were btlow in the house,
h iW. nboiU your (pun hu^aiess ; but
to / <l into the cJiAmber whei-e they
iver«*» iookv as if it were about ibeir bu»i*
Utah.
Citnuth. I never he»rd any thitig of the
bu«ine^s ; my bird.
Aii. Oen, So ftir» jfcntlcmcn, yon remem-
|>er, he C'liitirmei wh.ii Mr, llumsey says;
th i :.k(i denied he wa» there «fitb'the
dti month.
iof " •* '' • :4 fctmin,
I hai' rd, ami
have 4»ki.jt ■■^.tu im.^, um ufiivT <ii wtiv meet*
r.r
of
Ife 8ay«, you spake with the duke
■Ij,
el«ri'>« it,
/.. C. J
with 1^
I then?
jbimiu r'
L, C* J, lour o^i n
I never aaw tlie declaration, hede-
f I rid ym nny diuliog^ upon ac<x»uiit
.,i[i^r,
\\ Iml buj(iui*s& had you with
' iow but I might etiqotrc
witueii carried you up.
A, D. 1685. [l46
CQrni^h. My lord, if be did, I did not stay |i
he says I^tr. 8hepp;ird hi^ld the candle. I
Juttti Withim, Mr. Coruifb, he confirtn|k|
g-rcHt part of what I\Ir. Rumsejr mya.
CotniiJu Not one tittle ; for oe declarea 1 wt
not of (he company.
L, C. J. He savs no such thin^.
Sheppard. My lord, to my knowledge,
can sufelv say» he l^nowg nofhingj of it.
L.C.J. And yet yon cuuld briiig him u^l
among them ? I
Sheppard, ATy lord, I declare f never spaksi
any thing to him in my lite about the bu!^ii»eaSf J
nor never "in any company.
Just. WiChins, It is plain, Mr. Rumseji
says he was the man tfiat brought you upi
How should Mr, Humsey know that?
« Att. Gen. Mr. Sheppard, 1 will askyouthit;]
question : Had yuu order from that company I
not to bring np any person ? Do you remeiiip»|
ber you swore so at a former trial P , I
Sheppurd. I remember when I was there^l
they desired I would let none of my servantil
up, and that I would go down and fetch utf-l
what they wanted ; and I fetched up wine audi
what they wanted.
Sot. Gen. Mr. Sheppard, why were non
of your servants to come up ?
ShqtpvrtU Because they were in pnTate^l
Sir. - I
Sol, Ceti, Were strangers to come qm
therefore P f
Shtppard, It is 80 long ago, 1 cannot re;-
memhcr.
Just. Levinz. They came privately, with-
out coachesi l.»e<:ause none i»hoidd know they j
were tliere, and you carry Mr. Cornish up t
them* ' * ^.
Cornisfi, I think this >viiness h confronted, j
L. C, J. Hold your tongue, .Sir, he hath
not done yet.
JIuf7i|£y. My lord, as soon as Mr. Corniafil
had made his excuse? for his not coming sooner^!
and that he conld not stay, i could not makti
that, and Mr, Co in iUi cannot say L would d^i
any tiling maliciously or spitefully agaioiii
him ; roy lord ; as »oori a^ he had done, aB'j
the com|>any went aWut him, and bomebodyj
did tell him, They would tell htm what thejj
had done : they told him the declaration hzA j
been rt»ad ; that Mr. Ferguson had prepared J
it, and they said, look you, Mr. Cornish, yo^j
shall hear it read ; and with that this trentlo* i
injn. though he denie» it, did t •' *'
situi licld it : Uiey tljij not cimi**
the *'"► '"^ -'*' .-Mr,.ii svhiL ^..
pulir
JuM ,. -^ . -ppAid, you aie verj
forward ,
Alt. Gtn. My lord/l would iiak Mr, 8be
pard a cjuestiou* ««
Hum^ttf, My lord, the declftwillon watrcad|l
and Mr. t'mtulh \\\\\ approve of it, and did tay^l
IVjtii that fiinall interest, or litUc inter«t, <tf
worila to that cHect, that he bid, ho woulq
•iwiyt.
Ah. G$n. I woMkr why you did not gi?ii
447] 1 JAMES 11. Trials ofFernlei/^ Ring, Mrs. Gauni, Sf Cornish^ [449
the cotnpany. >V1ien he coibi^ tlf«re, be iHys,
bis business is with the duke of Moomoaw,
the head of that conspiracy ; and h^ bimielf,
tells ^ou he never had any deaKim with the
duke of Monmouth in his' life. What cah a
man imagrine uf that man that bad do diealiogfs
with I he duke of Monmouth, to find him out
in a place, where no mortal could know, and
none was to know, and coming to him at that
time, and at that place, under those circaM-
stances of concealment, no man almost but out
of his own mouth must beliere that be was
privy to that conspiracy : therefore though this
witness doth seem to forget some part of the
evidence, the reading the declaration, and bokl-
iiig the candle ; yet these are such circnni-
stanccs that in themselves do carry a prtKif of
the charge, and do <ionflrm all the rest that
the witness hath said ; and this murt bfe great
satisfaction to you, that he was there present
and pri?y to that design. And so I leave it tu
your consideration.
me notice when von came in the morning.
Why did not you jfivc notice ?
S^ieppard. I was here attending from ele\'en
o'clock till half an hour afUr three.
Att. Gen. Did you send in any word ?
Shcppiird. I could not tell who to send in : I
was here expecting to be called.
Just. Stmt. You have had a favour that no
nan ever I. ad.
SoL Gin. Gentlemen, there hath been a
very great indul^^ence given to the prisoner,
and it is to shew vou what tenderness a court of
justice huth, amtalways will have, of the lives
of the kins^'s subjects : After a fulf eviileuce,
though he had neglected his defence, yet you
were again sent tor uito court, to hear what
further evidence he had to offer to you. I cannot
but obl«rve, this looks like a subtile (M>ntriv-
ance on the prisoner's part ; vou see what en-
deavours have been made by Mr. Attomev-
General to hare had him here a witness ror
the king; you hare observed he told you he
bad a subpoena for him, but he was absent ; in
what company he was absent yesterday he hath
told yon, with Mr. Cornish's son : thismoriiinqf
he wos not to be found, at\er he had rereived this
subpoena, and a subpoena from Mr. Cornish ;
stays without, and gives no notice ; but when
you are withdrawn, c<in send intelligence to
Mr. Cornish, that he hath somehting to say,
that he hopes will excuse him : now what that
is, I must l)eg you a little to observe. Truly I
am very fflad for the satisfaction of all men,
that Mr. Shcppard hath now been here, and he
is BO far from mvalidatin^ any one part of the
testimony, that by all tne circumstances you
can collect from this evidence that is i^iven, it is
a corroboration of it. Mr. Cornish was accused
of being present at consultations that have been
held asfainst the life of the king, and for raising
rebellion at Mr. Sheppanl's house ; his ex-
cusing his not coming there is a sufbaiont ar-
gunient to prove he was privy to their meeting,
e hath gone on further, and proved to you the
reading the declaration. Now what says
[S$heppard to this witness ? Mr. Cornish, by
the way, 1 must observe to you before he
did deny his being there ; he had heen
llien the jury withdreit' for a abort tima,
and returning, brought Mr. Cornish in GuUU,
and found one hundred and forty pounds rar
the king in Mr. Sheppard's bands.
Clerk. Set Elizabeth Gaunt to the bar.
[Which was doti«.]
Cryer. O-Yes, all manner of peraons are
commanded to keep silence, whilst itidgtiieot
is giving, upon pain of imprisonment.
Clerk. Elizabeth Gaunt, hold up thy bSnd.
Tliou standest guilW of high-tr^&Son, &c.
Recorder. You Elizabeth Gaunt, yon hvtt
here been indicted for that great crime of high
treason, and that particular part of it, foi' bar-
bouring, and comforting, and assiatingp, and
cherishing of traitors, more especially of one
Burton ; you have had your trial, and a veij
fair trial, and upon that the jury have fbniia
you guilty : It is the duty of my place to luro*
nouncethe sentence the law hath provideJ ftr
such high crimes as these are, and that is no
other but this :
' * That you are to be carried back to the
* place from w hence you came, froQn fbcoide
* you are to be drawn upon a hurdle to the
Uiu xt^tiy 1119 uciug cuuiu , iic: uau uc^wit jvu uie *w UVUIUVtU U|IUI1 tt liuniie UM
sometimes in company with Ferguson, but * iilace of execution, and there you are to
be did not like the man, he says, because of
his morals : now the witness h6 hath produced
hath uriven you this testimony, that Mr. Cornish
hath been there in that company, that he came
in such a manner, that no man but must In*
•atisfied he was privy to their designs, and did
know of their meeting, for he comes when
the duke of Monmouth, and the rest of the
conspirators were there met in private, with a
direct cliarofc to Mr. Sheppard, that is the wit-
ness, that tuey should be so private, that no one
servant should come up into the room : yet
Mr. 8heppard tells yon, that when Mr. Cornish
came, he carried him up into the room, without
so much as acouainting anv one of the com-
nmy that BjEr. Cornish had a desire to come,
D|it brings him up as if he were (and I make
M doabt bot yon will imagmr, he was) one of
burnt to death *, and the Lonl have merej
* upon your soul.'
Mrs. Gaunt. I say that this woman did tsH
several untruths of mo.
Recorder. Is that all you have to say ?
Mrs. Gaunt, 1 do not luiderstaiid the law.
Clerk, Bring ilcnry Cornish to the bilr.
Henry Cornish, hokl up thy hand, &c.
Corniih. My lord, now tite law batL paiil
upon me. I do ruunhly pray ytmr lordship, and
this honourable bencfi, that ^ou will bo pleaM
to intercede for me with his majesty. I eliaU
lead a peaceable, quiet, and dutiful life : uiAI
ho|)e, when you come to reHect upon w&l|l
hath been said to day, that perhapa you %ili
be of another mind, and have more charitjKM
me than you had upon my trial : fbr Ulfi^ n^
8
149]
f&f High Treason,
filicitj of Biv be«rt» ind in ihe firttence afGi>d, f
fta declara 1 ttni iitnocciU: and it your brdship,
ami Uiti hoooiirahlc bench, ititcrcedc with Jiia
in^kniVf it will be nn r^*.'-;-^ ui;.x..i loM nuon me,
•adl*«bainjvefiiitii i loyally
li Umg «« 1 live. L , L^^^.Lii. i L^;, iUis, and 1
Croniifte myself, aod liope it vf ill stir up Uie
earU of some pertons, that they will not
leiivc mc destitute ol friends tu iioch a cose as
tbit; having;- a wife and ieven&l cbitdpeiii it will
be an act af charity.
Hecordcr. The iHiurt doci give yon your
request, and if there be any luisery brought
upon your family, it b done by yourfielf.
CUrk, William Riiisf» hold up thy hand, &c.
Jtiftf^* J had no notice giveu me an^t please
your loifiship.
Hecorder. Where 4« the executiouer, is he
hCTi! ? — Iliecinioner* Ye«>
Rt<order* Wl>y do not you do your doty to
Mr, Corwlsih f
Clerk, John Fernlev^ hold up thy band ; tJtou
•taiidett convicted of liigh treason « lor traitor-
ously harbouring' one Jnmes Burton ; what
«an«t thou say for thyself ? ^c,
FernUy* U ia very h>urd tneaiure 1 have
Vad, I hate uuibiogf to siy, but the kinf *s
mercy.
JUcorder. U that all you have to say ?
Ftmtrjf. I have nothing but the kiug-*s
' border. Tie him npthen, tie him up.
CVjtfr. O'YeSt ail manner of persons are
C0iiiiiiAndfe;d to keep fit lence, whilst judg-ment
if p^i\>gt n^oii pain o( imLprisornnenU
Htcordir^ You ihe neveral priJi^^mers at the
b4f, y<HX bav« been seroraily indicted here of
the oiifh crime of tteosioo. For you, Mr,
Cominiif 1 apply luyselt first to you. Your
fsoude is for treaaim that wa>i cotumitted in bis
late quycsty's hfe time, beinqf uiie of titose uo*-
iBiiiiiai oouspiratorstbat dcM^nicd to rai^e re-
Miioih Slid olhera 84>me of tham immediately
^ttifOitd the life ' jfsty that then uas,
Miaii present w it was itie desig^n of
MuneCif tb(.'m ; ami ouiLTfi, tht^y bad aimther
ttart, that waa to ruine robellmn^ tind jiarticu-
kriy aoiiie ul' tbccn iu and oL»out iltin city, and
it wii Otfritd on some time hi fore it w^ dis-
COf eired, maiy bs a year or mare, under colour
Mill pfdoioe of b»r : For no did they invade
th^ goferameiit, ftrat of aU by packing of
inicii Ikil^ ^a^ the foundation laid whereby
to kn^ OD that bujuneiis, which they liad at
laat desiifDffd wlian Ihey couUi bnn^ ii to u ripe
betd* Too many iiefaoaM m th^t bumnesa, I
b^heve, were Tery bu'«y^ mc^ldliu^ with v» bat
Ibay had uol to do wttb ; ilubbijig and ca*
Wkxig kow to briiig tkor deiugus about, in op.
ygflttoo t» tba got crocnail, not to auppoit tt tn
ike IcsBSt, butio orertbrow it if it wae pubutbte:
BttltheD al laaC, ikcy must take anuthe:r o^jume,
lor oo kiog«r oookl Ikey carry ii ou^by pre-
iMcaoir ltw»t» jmikfttakewdtoday: Now
«• amt laks Otktr ineaiixres, and take down-
tiglit kkMH. This ia tka buaincas, Mr.
YOU XI.
A- D* 1685. [450
Cornish, tint you have been indicted for ; and^
I must tell you, whatever apprehenstotis yoct
ha?e to the coiUrary, and may pltaj<r y<>ur»eifl
in* I am sorry tu see such a sort of iiteagure in f
your counteottiice, as if you had had no favouM
shewed you. ] believe the court hath xhewetl I
you more fafour, and had more putience Miibl
you, than ever any man th^t £tr>od in yourl
fdace had ; for callme' a witness after the jury'}
mth been out, is a ming 1 never saw a pre-]
cedent for : And I am g^bd it was done, fur t J
think It hath clearcff the thing lieyond aOl
manner of contradiction : t^efore it looked snme^ I
thing^ dark for want of Sheppard, and so it is 4 J
liappLness that that man was called to conviuGf J
you of many thinjpi lliat you prot«*sled so« I
Icmiily at*^in!»^ whkch lamson^y to see iiV)^^4^J
in thi^ condition that ) on fii'c, to imike suctti
solemn protestatiou^, and afterguards call %\
witnesH to^confroDt you in ihem. For th^]
other t**^i, here is Mr, fliuijj h very noturiou|f
for harbouring a couple ut traitors kj\ow»ng^
from whtmce they came ; and if it were m^
far such persons as these are, that do harboii^l
them when tiiey fly, it may be there wuuli| j
not be so many bold attempts to commit such
crimes m these are : To provide for them, and
nourish them, and comfort tliera, af)er they
have committed their villainies, this does eu-
couni^e them to commit tbetr viUalnies as thejr.
do, and so 1 reckon liarbourers to be wor»e thaii]
traitors themselves ; they are like receivers 1^1
thieves. There would not be so manv traitur«j^J
if there were no barbourers. \'ou nave bee^
convicted of these great crimes ; it is loo latM
and not titling to spend time any longer, but tr^
pronounce the several sentences against you
which is this ;
* You must, every one of you, be had bac
^ to the place from whence you came, frotd"
* thence you muiii Ih2 drawn to the place of
* execution, oml there you must severally ba
' hanged by the necks, every oue of you by
^ the neck till you are almost dead ; and then
* you must be cut down, your intrails must be
* taken out and burnt before your faces, your
* several heads to be cut o0, aud your bodiet
'divided into four parts, and tltt»se to be dis-
^ posed of at the pleasure of the king^ and lb
^ Lord have mercy upon your souls,'
Femlcy ♦ and Ring were reprieved, btti
Coniinh and Gaunt were ordertil fur exi'cution j
accordiniriy ibur days alter, via, October f 3^
Uenry Cornish f was drawu ou a sledge ta
^ Femlcy was aflei'warda executed at Ty*
burn.
f Of the fate of Cornish^ Echard (p. 1069J
savK;
♦* It is not lo he doubted but thin * : m.
bad great lurdship, aud unworthy u ^
iuTpriMonnu'nt, trial nnd rondemnntioi^an'i inat
he suHt'iY'tl upon wrelched evidrnre : Hut at
the same time it is not to tie lorgoften what
encuunig«u»eiit be gav<i ta tuch iort of e?i*
2G
451]
1 JAMES II. Trials ofFemdtyy Ring, Mn.<3amit, Sf CamUh^ [45f
Kiu$;'s- street cdcI, in Cheapside, where a gib-
bet v%us erected on pur|>ose, at \ihich place he
ajiokeasfuilows:
'< I am cumc here this day condemned to
die; hut Gud is my witness, the criuics laid
to my charge were t'ulsely and niuliciously
Kworn agaiuht me by the witnesses; fur I
never was at any consult, nor any meeting',
where matters a[piiiist the government were
discourstMl of: I never heard nor read any
Declarationj nor never acted wilfully any thin^
against the government. 1 confess, througu
the justice of God, my private sins have brought
ine to this infamous end ; yea, it wei-e just with
God, not only to deprive me eternally of his
presence, but to cou<lcmn me to eternal tor-
ments; but through Christ 1 ho]ie to be eter-
nally blessed : Yet, as to the crimes ibr which
I suffer, on the word of a dying man, I am
altogether innocci.t. I bless God 1 was from
my younger years brought up in, and have for
iiome years &.utiuued a Protestant, in the com-
munion of the church of England ; in which
commucion 1 now die. I have often partaken
in the ordinances, the blessed effects and com-
fort thereof 1 now feel in this my agony. I
bless God I was bom under a government, in
' the constitution of which 1 did ever acquiesce,
and in which 1 was once a member ; at which
time I did, according to the best of my under-
dence in the Popish Plot, and how active he
iip[ieared towards the shedding of the blood of
the lord Stafford ; in whose case he was so
zealous, that, being sheriff at that time, he was
unwilling to allow him the common favour
shewn to the nobility of being beheaded. He
now met with a full retaliation; perhaps more
from Heaven than from men; and he could
not so much as obtain the same favour himself;
liui ou the 2:id of October he was hanged and
ijuartcred iu Cheapside, the heart of the city,
.nud liiw head lixed upon (luiid-hall. Before
he went out, he was extremely urgent with
the worthy Dr. Benjamin Calamy, who had
Qltendt'd him to the last, to go wilh him to the
])1ai'e of rxerution ; but that gooil man had
buch eom|)ns8iouate tenderness in his nature,
liiat he excused himself, saying, he could as
^oon die with him, as bear the sight of his
iWvaU. At his execution, he shewed all the
marks of a pious eliristian prepared for death,
aiiil did several times assert and protest hii^
iiiMoeency as to those crimes for which he stood
ocndeinned : And it is said that king James
himself wur long afier expressed some regretj
as if he believeil he had hard measure; how-
«.'%i'r, his quarters were orderetl to be taken
down, and delivered to his relations to be de-
cently interred, as they were iu SSt. Laureuce
church by Guild-hall.*'
<)ldmixon,in coiiMdcration of Echard*s wordu
' Uctaliation from Heaven,' prays God that
*' the dreadful judgments [see vol. 6, p. 198,]
be baa called duwo on so many innocent per-
i hi* nqt < retaliated' on hu own noul."
standing"— [Here he wasinterrqpled'by the
Sheriff.] — *^ I bless God I was honi in a land
of lighi, where the ffusuel liatli been preached
in power and nurityl ne might have brought
me forth in a land of darkntats and ignorance ;
but blessed be God for Jesus Christ." — ^Then
he entreated the Sheriff to intercede with bia
mi^estv to be khid to his poor wife and chil-
dren: The Sheriff promised him to wait on bia
majesty the next dar about it. lie replied,
<' Mr. Sheriff, I thank vou, the Lord reward
vou a thousand told ; the Lord put it into the
hearts of you to be kind to the widows and
fatherless ;* it is your duty : The Lord put it
into the hearts of all good people to pray for
me."
More could not be taken, by reaaon of the
noise of the people, and interruption of one of
the Sheriffs.
When he ha<l made an end of speaking, the
executioner did his office ; his liead waa after-
wards fixed upon the Guild-hall. Ilia at-
tainder was reversed by act of parliament, 1st
of Will, and Mar. and the witnesaes lodged in
remote prisons.
The same day Elizabeth Gannt was execut-
ed according to her Sentence. She left tlie
following Paper:
Newgate, S9 October, 1685.
*< Not knowing whether I should be auffned
or able, because of wcaknessea that are upon
me, through my hard aud clofe impriaomiient,
to speak at the place of execution, 1 write these
few lines, to signify 1 am well reconciled ta
the way of my God towards me, though it be
in ways I looked not for, and by terrible thiog«i
yet in righteousness; for having' fiTiven me
life, he ought to have the disposing ofit, when
and how he pleaseth to call for it ; and 1 (
to offer up my all to him, it being but my rea-
sonable service ; and also the first tenna that
Christ offers, that he that vvill be his disciple
must forsake all and follow him. And there-
fore, let none think it hard, or be discouraged,
at what hath happened unto me ; for he oolh
nothing without cause, in all that be hath doae
unto us ; he being holy in all his ways, and
righteous in all his works ; and it is but my
lot in common with poor desolate Sion atthtt
day : neither do I find in my heart the least
ngrct of any thing that 1 have done, in the
service of my Lord and Master Jesus Christ,
in favouring and succouring any of his poor
sufferers, that have shewed favour to his righ-
teous cause ; which cause, though it be now
fallen and trampUnl on, as if it bad not ben
anointed, yet it shall revive, and God will pkad
it at another rate, than yet he hath done, with
all its opposers and malicious haters: and thers^
fore let all that love and fear him, not otnit the
least duty that comes to hand, or Ueth
them, knowing that Christ hath need of i
and expects that tliey should serve h'
1 desire to bless him that he hath
useful in my generation, to the i
4M1
Jot High Treason,
felief <»f iiMDy ffistrenied onet; thut ttte bins-
iag* of tkosc that hnvc heen renil y to n^fish,
Iratli come upon mc, nnil I hare been helpetl to
iniike the bcMrt of the widow to sing ; ami I
bleii* \m holy nfttue, that in all ihis together
with \*hftt 1 wtt« charjjc<J u Uh, \ can approve
my heart to him, thit I have clone his iwill,
lhou;;h I htive cro«s€tl nmri^s will ; and the
«cri|fLure thai smj^fiiil me in it is* the xviih of
Isa. 3>, 4. Hiile the outcast!, fietray not him
that wfioilerfth ; let 103* outcasts dwell with
Ifai-e, Obftdiah, ver. 18, 14. Thou sltooldest
not hafe ^ven up him that escaped^ in the
day of diifriress But man saith, Yoti shall
give them up^ or you shall die tor it. Now
whom to obey, jtidg-e ye. So that I haye
caute in rejoice and he citccedin^ ET^ad, in that
I soflbr for riiihteousne^ sake, and that I am
accountetl w"-''; t iitfer for treil- doing', and
that Gcwl hni ^ any service from me,
that hath bet ^. u i»inceV'ity, thounrh mixed
i»ith mnniibld weakne!«e^ and intirmtties,
which be hath been pleased lor Christ^a sake to
cover and Ibrifive, And now as concerning'
my fact, as it is called, alas! tils but a little
one, and miixbt well hccocne a prince to for-
flrtve ; but, lie that bhewcth no mercy shall
llid none : and I may say of it, in the lan-
futge of Jonatiian, 1 did but taste a Uttte
ooey, and lo, i must die for it ; t did but re-
lifire a poor^ unworthy and diatressed farailVt
atid^ lu, I must die fur it. 1 desire in the Lnmn-
like will, to for^'ive all that are concerned',
and to say* LordK lay it not to their charge.
But I ^^'Af and h^licTe, that when he comes to
make infjui.sition for bto#>d, mine will be found
ttt the door of the furious Judge pVi thins,]
^lio, b^^cauM I could not remember things,
IhroiiQ^h roy dnuntcdncss at Burton*a wife
and dautfhter's witnes*, and my ii^norance,
took adfaotage thereat, and would not
hear me, wheti I bad rolled to mind thai
uhich t am sore would have invalidated
their evidence ; and though he granted some
Ihihfi «>f the same nature to another, yet
J)« gfninted it not to me. My blood will
be also found at the door of the unrighteous
jiirVf who found me g'uilty upon tlie single
oaiK of an outlawed roan, lor there was none
but hiK o;iih about the money, who is no legal
%vitncS5, ihousrh tie be purdoneil, his outtav^ ry
. not beings recalled ; and nlAO the tavr requires
two wiinesscH in point of lile. And then alxtut
my gi>>ut^ with him to the place mentioned, it
was, by ni* own words, before he coidd Ik; out-
lawed, for it wai two mouthft ailer his abscond.
ing^i and though in a nrociaruation, yet not
hi *4lv treason ,«*» 1 have neartl : so thnt I am
clearly murdcrwl by you. And also bloo<ly
Mr. Attcrhiiry, who' so insatinttly hunted after
ftjy lilH ; »nd though it \n no proHi 10 him, yet
A. D. 16g5, [43*
all tinder my circumstances, and did at that
time, without nil mercy or pily, hasten my ^
sentence, and lield up my hand that it mighl
he pronouncetl; all which, tog^ether with th^
^eat one of nil, (kintj James 2,) by who**
power ail thejse, and multitudes of more crueltie
are done, I do heartily and freely forgive, r
done a^iiioHt me : but a^ it is done in an ir
placable mindaq^ainst thcl»rd Christ, his rt|^li*
teous cause and followers, 1 leave it to him wha
is the avenger of all such wroti^^s, and h alb
said, I have raised up one from the North, and
he shall come ujmn princes as upon tnortdr, ai>ij
as the potter Ireadeih clay. Ua, xli. 2.5. Hi
shall cut off the spirit oi princes, and be ter^
rible to the kings of the earth. Psal, Ixxvi, 12J
And know thisaUo, thatthougti you are seem^
ini^ly fixed, and because of the power in youf
h;m«ls, and a wei^;; King out your violence, an ^
deahntr with deiipitetul hand, because of tlj
ohl and new hatred, by impoverishing, an<l b^
every way distressing thos:; you have got under
"Vou, yet unlaws you secure Jesus Christ, and
liis holy angels, you shall never do your hii-
Giness, nor vour hands accomplish your enter-
prizes; forte wdl c^me upon you ere you
are aware, and therefore, O thot you will be
wise, instructcilj and learn, is the desire of her
that finds no mercy tVom ytui.
ELIZABimi GikUITT.
Postscript,
" Sacb as it is, you have it from her,
who hath dooe as the could, and is sorry she
can do no better ; hopes you will pity anil
cover weakness* shortness, and any thing that.
is wanting* and begs that none may be weak-
ened or humbled at the lowliness of 'my spirit ;
for God^s design is to humble aniT abase us,
that he alone may l>e exalted in his day : ami
I hope he will appear in the needful time, and
it may be reserves the be^ft wine till last, as b«
hath done for srmie before me ; none goeth to
warfare at his own charge, and the sp*rit blow-
etb, not only where, but when it listeth ; and
it becomes me who have »» ollen grieved,
oucncheil, and resisted it, to wait for and upon
the motions of the spirit, and not to murmur:
but i may mourn, liecause through want of it,
1 honour not my G<mI, nor his blesscil caitse^
which I have so long loved and delighied lo
love ; and repent of noihuig atiout it, nul thai
1 have served him and it no better.'*
1I
ill^wdl he hn
i-i 1 have groutii
1 no Mone
, until he
h f .1 -. I 1 i.t^^iiirlo Bur*
1 bin oun fault,
a iM * ,.., „-■,,^.M 1,., ,1., r^a]imine. And
kklly, BicJitrdson, who it cruel antl severe to
At a Parliament brgun and hohJen at We§t*
milliter, the *iid of Jiinuarv, primoltuh*
elnii et Maritc Hegis ct fteginiei 1680.
nninh, 59.
An ACTforrerersing the Attainder of 11 EXRY
i OUMSH, ew|. (atQ Alderman of tho
Cily of Londoo.
*< Uhereas Henry Cornish, esq. Ut« AMcv-
manofthe City of l^ondan, was indietcHi of
Uigh'Trrason, upon prt*t«»nce, that kn^wittg
James late duke of Montuvullii WdUaui H«*^
455]
1 JAMES II. Trials n/Femley, Ring, Mrt. Oattnt, if CamM, [456
■el, esq. aniT sir Thomai Armstronff , to be trai-
tors, and to have conspired the death of the late
kini^ Cliarlefi the Sd, promised to be assisting
to them in :nich treasons, to bring them to eflfect ;
and being thereupon arraigned at the sessions-
bouse in the Old -Bailey, the ll/th day of Oc-
tober, Anno Dom. 1685, although he was com-
mitted for the said pretended treason bat the
Idth of the same October, and had notice of bis
trial the 17th of tbo same October, and was
kept close prisoner from the tioaeofhis com-
mitment to the time of his trial, and could not
possibly therefore prepare himself for his de-
fence, neither would the court, whidi tried
liim, give him any longer time to prepare him-
si>lf lor his trial, although he very much pres-
sed ior longer time, having a material witness
to send tor, who was not then in town, and
was above 140 miles off: and having pleaded
Not Guilty to the indictment, ho was presently
tried and convicted on the single evidence of
ool. Ilunisey, who swore the prisoner waar in
the room, at one Mr. Sheppard's house, in
company of the dnke of Monmouth, the lord
Kussel, the luril Urey^ sir Thomas Aniistrong,
Mr. FergUbon, Mr. Sheppard, and the witness,
when a paper was read, the contents whereof
are a complaint of the misgovernment of king
Charles the second, and declaring for liberty of
conscience, and that all those who would assist
in that insurrection, that bad lands of the
church, or of the king's, in the late #ars, should
have them restored; to which paper, as the
witness swore, the prisoner expressed his liking: !
whereas the said ttumsey owned, when he i
gave his evidence, that be did not hear all the !
paper read, nor did take great notice of it, and '
tliprefore was not a competent witness of the i
soDteots of the paper. And whereas the said 1
I said pretended pspefr watf
led, that the sndl Henrf
le room St ths tiuM of tMT
col. Rudscy had, inthekiid llaBsdI*stris],
expressly sworn that he was not in tho loon
when die said pretended paper was mi: aad
whereas col. Rumsey, in tne same loi4 Roa*
sell's trisl, expressly mentions the nafcnos of all
the persons in the said room, in tho said Mtv
Sheppard's house, whereof the said HeniT
Cornish was none ; and whereas filr. Sbenpara^
whom Rumsey, in his evident, orwnedlofaai
in the room when tbo sai '
read, expressly testified,
Cornish was not in the re
reading the said pretended paper. For aH
which reasons, at the humUe petition asd to-
quest of EKzabeth Cornish^ wulowaod idiel^*
and Henry Cornish, eldest -son of tbo oiii
Henry Cornish; Be it enacted by tho Idagani
queen's most excellent majesties; and hy and
with the advice and consent of the lords ^*
ritual and temporal, and oommons, in tliiapie*
sent parliament assembled, and In^ the Mitho*'
rit^ of the same, that tho oonnction and a^
tamderofthe a-iid Henry Cornish, decoassd;
for High -Treason, be hereby rcTStaedy narolM
and made void, to all intents and ' pnrpoosB
whatsoever. And to the end that rint bo
done to the memory of the deceased Hcniy
Cornish aforesaid, be it ftirtiier enactad^ thi
all records and proceediags rekting to the sski
Attainder, be wholly caoesUod,ud taken of
the file, or otherwise defhoed and obKtsratod,
to the intent the same may not be visiblo in
after-ages; and that at the nest stssiwii
of gaolddivery, to bo hoMen after the ftel
of St. Michael next, for tho ci'ty of Ijoadoa,
tho said records and prooeedinga ahall bs
brought into the court, and then and therr
taken off from the file, and canceUod.
Copia Vera '• Jo. BaowMy CK P^*
Rk^iarks upon Mr. Cornish's Trial, by Sir John Hawlk^ Soli-
citor-General in the Reign of King William the Third.*
him till ei^lit o'clock at night ; and then ho
was permitted to speak with nobody bnt fn the
presence of the gaoler : he had beefi allouM
no pen, ink, or paper. H^ was told by thooooit
he ou^ht not to hare it, ititliout leave given SB
a petition preferred .by him, and that be wst
taken Tuesday before, which to that time ivii
almost a week. He said, his children had pelK
tioaed the king the night before to put o# Ml
trial, and it was referred to thejudges: ho M
not know whether he was committed lor h%h
treason against the present or the fbrflsor kiogv
and he had a material witness an hondnd and
forty miles off: but was told by the coart, Ihof
had no power to put off his Trial. I^ ia ttntf
they said the lord llusseirs trial was pntoffW
the aHemoon, Twhich was not true), hot thsl
was a fa? our m ntch could not be challeimd hjr
another as a right. He complained ho bad M
a copy of the pannel, but was answered it mM
not his right to have it. Then the AMrt "^ '
iaid, hohad notdeserfed so woQ of thlt'l
THERE yet remains two persons prosecu-
tions to speak of; the one is Mr. Cornish, who
was taken the of October, 16t35, and was
arraigned on a Indictment of High-Treason
the Monday aAer, for conspiring to kill the late
king Charles the Second ; and knowing James
duke of Monmouth, William Kussell, esq. and
9^r. Thomas Armstrong, to be rebels and trai-
^ tprs, promised to be assisting to them in their
treasons. To which he pleaded not guilty.
lie desired to put off his trial, because be had
no notice till the Saturday before at twelve
o'clock, and he could get no friend to come to
* Sec sir John Hawles's Remarks at the end
.of the Cases of Fitzharris, vol. 8, i>. 4V0 ;
Colletlge, vol. 8, p. 723 ; Lord SbaUesbury,
Tol. 8, p. 835 ; the city of Loudon, vol. 8, p.
13&9 ; lord Kussell, vol.9, p. 578 ; Sidney, vol.
9, p. 818 ; sir Thomss Armstrong, vol. 10, p.
.2W; oount Coaingsmark, vol. 9, p. 1 ; and
■^'■■■■' «• 473 oif tho present volume*
4fl7J
M'igk
A. D. 1695.
[458
▼#miii«ait OS Ut Imie hi* Irbl delnjcd, tnd I
litimiM*Y ^ ' tatter end ot'
Oct^'ber; or ' ; Jirr ♦In- earl
pard^s hfiu»«\ , ' lake
of MonniitiiUi, \nn\ \i%%%3ivi\^ lonJ Grey, Sir
ThotnA& Annsironf*, Mr. KciRftisow, and Mr.
flhcpptfil ; hccame late, and tbcy were just
•n ^omg awuy ; he <leliver(*d the me^fmcfe,
and they told fitm thtt Mr. Trenchtrd h<id dis'
appiMiitcd ilitni. He lia<l not Uiri there above
m ipiarter of an Imur, but Mr, Nhcppard was
oaUcfl down, and broti|rbtup Mr Conii^h, and
told them Mr ^' " r rr ; who came
into il^e rn' ^ x\**t cnmiu^
•m^-^"- .'..t , ^1 ,.,i --..,,-...,.,.,, tor he was 10
ni jrirter: whereupon Mr, Fer-
gii -< :. '[r...^.. '..u bosom I and under hiji slo-
niaehfr pulM out a jiaper; they t<dd Mr.
Ciirit'sh Hrev had hail it read, and desired to
' to tiini: Mr. Ferg^ison read it, Mr
>.Trd held the candle >vliile it was reading",
aud allerwards ihejr iiaked Mr. Cornith how
he liked it : who said, he liked it very well.
lie rdaemberetl two |K>intb in it vevy well, the
miewas for liberty of conscience, the other was,
thai all who would assist in that insurrection,
who had church or kingV-lands in the late
WOP, should have them restored to ihpin. He
did not hear all the paper, and observed only
theie two pointv ; it was a dedaration on a
rising, and when the risin|^ was to hare been,
it wa* to have been dispersed throad t there
was a ri»in^ intended at that time, and Mr,
Cornifth said, he likefi the declaration, and
what poor interest he hud he would join with
ft. lie had great dealing:? with Mr. Cornish,
ind Mf< Cornish was a very honest man, it
^aa ont of c^mptv^ion he had not accused
•Jr. CorniBf'
Mr Gofi?: ttd, there was o dtsljrn to
rise in Londuu, aiid tor that purpoie to divide
the city intc» twenty pvcxis, and to raise five
buadred men out of each [nvtt to take the
Tower, and to drive the guardd out of town,
IM^pe that W85 a£»reed on, he lieiurr liy <hftnce
il Mr* Cornishes houRe^ i^iiid, The la(\*wiU iu)t
defend ua j Boroe other way was to be thought
©n. Mr. Cornbh said, he wondered the city
WAn H'l nrinridv. rvtid the cou.itry hO ready
li-
|ii 1 . 111. I'owpT imixi \h* yeized, where the
fn :!i^r , . t- i\f- fAirtM<sh pHUsed a httlv, and
i. 4»d I can, or what I can,
o. aid.
met Mr r the Ei-
cli 'd htui hir rut ; tim\
Ih"- - ' '^i:j,. lie '.. ■
111 1 : Imut nms.
ft i*rnt him, :'iiii ,
( ► Mr. Cornith'i*
Uitvt^ ^'- > ..,..' riot, ^""^ '""
f^mm was irse. Mr. <
ti«ilifladfijr3-. . ...- . iliat he omM
Go^Hkimugb^i iMMHif under^tUorilii and gatd,
^ipd, there in aoniething
' hert? J but in the first
he would not truit an hair of hi« head witl
him, he ^vas an ill rnan. obnoxious to the i
verurat.'nt^ and had done ill thintt^, sind he would
not trust his estn^»»ii*t' "^I'Hrntion in the hdndi
of such an und' he believed MrJ{
Goodenough ati : were ne? er
conciled. Mr Ijotc, Mr Jekyl, 80d rir Wl^
liam Turner, te^itilied to the same ptifpoiie'i
Mr, I^aoe spoke out of the pnuted trinl of Pn^
lonl Russell, and said, Humiey in thaf trial la '
he tlid not hear the declaration read, for ft v
read before he came. Dr, Calaniy fcard, fl
Cornish did ofien come tt> > "i * '
the sacrament. Mr Sin ,
stibpcena^d by the kin^, ariu ny nr, t um
the nip^hl before ; and that Mr. Corni!»h*si
was with him the afternoon of tf'^ -f^^r hef|)^
who prest him to be at the trial day|
llint there were account?? d/Mi
him and Mr Cornish, whi t
one or two hundred pound ' ;r ii^
and Mr Cornish's subpeena was serrctl is rat
upon hinK At one of those meetio^ at hia
houife, Mr. Cornish came to speak a tew wiirdt
with the duke of Monmouth, or some other,
he could not be positive in that, tl was fnan|
years a|^o ; he Jid not stay above halt' a cjuarie
of an hour in the house, 8heppard cafne uji^ "
stairs, and went out with Mr. Cornish, and
there was not one word read, nor no paper
seen while Mr. Cornish was there: be re-
membered tliero was a declaration read, Fer*
^ison pulled it out of his shoe : he couKI not
tell wbetber Mr Cornish was at his house the
ni^hi the declaration was read, but he was
positive no pap^r was read while Mr, Cornisih
was there, for Mr Cornish wa« not looked on
to be one of the company : he did not knon^
who Mr. Cornish came Ut tpeak with, when he
came to his house ; Mr. Cornish was but once
at his house w hen the duke ot Monmouth wal
there.* he did not remember that Mr. Comli^
was ill the company when Mr. Ramsey waf
there j he said, he had nttended the court frotR
eleven o*clock till half on hour past three.
This behi|bf the sum of the e^ idence (fiveti in
the trial foru^n<l agdiost the prisoner, let us aea
whether those inferences could be made from
it as were made by the court and counsel f and
whether, on the whole, anhone« jury, thou<,'^h
but of Idtle understand in|^, couW have found
him jjuilt^' of the treason in the indictment f
It is agreed on all hands, tbat a PjPtty jury
may and must consider the credimlily of a'
wjluf !<f?, (though in the lord 8hafiesibur)*s cas«t
it was said a giand jury ought not5o to do) and
if ISO, surely Htim^fey was not a credible^
thoutfh he vfus not a distible*! wittiew ; no
more than a man who awns himself to bti a
u of taKhood,a \.u " wretch, and per-
l by hi«own ( i)H>ugh not con*
vnird of it: he I iMiSHly Coof'p«»ed
himttlf ifujlty of !: r», and of beingf
.-- .1 -i..^*. 'ffiiuii,. ..ailmnnismitrdef ;
iithoturd Ku*ia<!rs trial, he had
.,:._„ ^ L>eriOtn»at tl*e meeting he spok
of, of which Mr* Coroiah waf oooe ; a&d I
459]
1 JAMES 11. Trials ofTernUy^ liing, Mrs. GaunU ^V Cornish^ [460
taxed in this tiial with it, he excuses his per-
jury with coinpassiou to the prisouer, which
was mean, t'oolisb, aud contradictory : he per-
jured himself to save the [irisoner, and then
iwore truth to hangf him. He had not pre-
sence ot miudenou^fhto excusehiinselt' in the
manner a witness in the lord liiiSHi'lV trial did.
that his God, his kin^, aud his country, ptit
hia) un willinff ly to act that imrt. Besides that,
in the lord UussePs trial, Kumsey swore he
was not at the reailinfr the declaration, and con-
tradicted Sheppard who swore he thought he
was there.
But that passage was proved only by a wit-
ness who had heard it m the trial, which, I
confess, in strictness of law is not evidence;
nor if the witness had said, he heard Humscy
iwear so at the lord Russel's trial, it' had not
been evidence, unless a record of that trial had
been produced in court, which was not done.
But all those things being but mere circum-
stances, shew the injustice of speeding his
atrial, and denying him counsel : WouM not.
any counsel have told him, that in strictness of
law a passage in a printed trial was not evi-
dence, and was it not easy for him to have got a
witness to have said that he had heard Rumsey
swear so at Uiat trial ? Were not all tlie j udges
who sat upon him, and all the king's counsel
who were against him, present at the lord
RussePs trial, and perfectly remembered what
Rurasey then swore as to the pretended decla-
ration, and might he not have subpoena'd thehi
to have testified that matter ? Nay, ^as it not
their duty to have done it even without a sub-
poena?
To say it was against the king, and therefore
they could no( do it ; or they were in thecom-
mision to try him, and theretbre they could not
do it ; is neither law nor reason. Every man
knows that a judge in a civil matter tried before
him, and a counsel even against his client, has
been enforced to give evidence, (provided it be
not of a secret communicated to him by his
client) for in that particular a judge ceases to
be a judge ; and is a witness ; of whose evi-
dence the jury are the judges, though he after
re-assuiuc his authority, aud is afurwards a
judge of the jury's verdict. -
A judge may sue, and must be sued in his
court, but in that case he ceases to be a judge
and is a suitor, though he re -assumes his
authority in all other matters : and if it be
so in civil matters, let any man siiew me a
reason why the law is not so in criminal mat-
ters ; there is no express law against it, and it
will be ainiurd in reason to say the law is not
so ; for at that rate the king may put any wit-
ness, he knows the prisoner irftcuds. to produce
for himself into the commission for tryiug
him, and so deprive the prisouer of the beneht
of his evidence ; as in this case Sheppard,
whose evidence ought to have been of great
use (as shall be shewn) though it was not of
any avail to the prisoner, might 'tive been put
into the commission to have tried Mr. Cornish,
iiic he was as much qualified for it, as sir James
9
Smith then lonl mayor, or any judge upon the
l»ench . 1\ nd if they might have been u iineasot
for the prisoner, if suhpcenaM, they might have
been witnesses for him even without asking ;
and it was a duty iiic.mbcnl on them, though
uotns jud<;es, yet as chnstiaii men, so to be.
IJuu\anity commands the discovery oftruthi|
which prevent the shediiitig iuboceiit bloud ;
and Christianity comiuands a man lo lio iis be
would be done by. 1 tliink tlws questiuu :ned
not be asked, what they would have liad done,
if it had been their case ?
'I'he reason that all matters of law are, or
ought to be ttansucted publicly, is. That any
person, unconcerned as weil as cuiicenied,
inay, as amicus cnria^ inform the ctmrtlietter,
if he thinks they are in au error, ttiut justice
limy be done : and^the reason that all triaU are
public, is, that any person may inform iu point
of fact, though not subiHcuadj that truth may
be discovered in civil as well as crimiual
matters.
There is an invitation to all persons, who can
inform the court concerning the matter to be
tried, to come into the court, aud they shall be
heard. It is true, if the judges or any |iersua
had testified what Rumsey said at my lord
RusselPs trial, it had not been evidence without
the record of the trial ; and it is as true, that
neither the record, nor a true copy of it could
have beeu procured between Mr. Comish*s
commitment, if it were on Friday (as 1 have
heard it was) though the court said it was on
Tuesday, much less between the notice of
his trial, which was Saturday- noon, and the
time of his trial, which was Monday- Dooming.
But then what justice was there m speeding
his trial, so as to deprive him of the circunH
stances of his defence ? For that was but a
circumstance, and not an essential matter.
And what account can be given why the ooort|
when tlK'y were well satisiicd that it was in
the prisoner's power to procure such a witnesii
and such a record, did not slay till he did itf
Or if it would be too long in doing, why shoald
they not have put oH'tlie trial for that tiine, and
given *ho prisouer a convenient time to do it?
The tirst, in civil matters, hath been frequently
done, when a deed or witness hath been wauting«
if it could lie done in a convenient time, and a
trial lias been put off betbre it came on, though
atler it came on they have not done it, lieeause
there is no great inischief iu that, for either
party hath power to h: ir.g it almut again ; but
not so in capital matters, and therefore jurits
in ca|)ital mattei-s have been friHjuently dis*
charg<'d after sworn, where the evidence hath
been defective.
it is true, i.^.y lord C'oke saiih, that ajaiy
once cliarij^ed witit a prisoner, cannot be dis-
chargeil, but must gi^e tjieir verdict ; but it is
as true that he says so in favour f if the prisoner, .
that when the evidence against him appears dc- ■
fective, he shall not be continued a prisoner tiH
more evidence can. be tbiiud, or procured
against him, though the practice of late ^y»
iMth been quite contrary, viz. to discharge tfyi
461]
far High Treason.
vary ivhrre the evideftce Against the (insonf-r
m& l»P«*n ilcfeclire, but eiiVorce them to tfitc
% verdit't where llir prisoner's delence halh
lieeii «ler«'Cti\e; thou'^h lo ibfir kinmledtje if
be hft<l Ul^^Jc^ lirne lo tlo it, he had been able
to (n'odure the witnesic??* v*ho could clear him :
but by I'lbat tuw or reaion I atn to seek. Yet
I eoiife*5s, it Iliiinity** owuin^j his jierjiiry in
lJ»e bin! Ilussers triiil, hi the \evy piiinl sworn
agniust tbc prisoner, tind solVivoloosily excufirng
it» 1%'otild not discreibt hint, I know not I but
uny recfifif, nitue*^, or evidence wouUl liave
aviiiftnl Mr. Coruiab.
And add tti Rumsey's contradicting' himseU',
ihiit 81u'(i|>unJ« uho never eontrftdicted hiin-
aelfj *nd Imd beeu u %vitn€ss in both trialsi
«giH<*>, tbut wbut Hnrnncy had swera in my
lord Rnsser?* trial, tu to 31 r. Cornish's not
bdngf there, was true-
Bo t adttiittiti|if Kitm»cy had neter periiired
hiniHrtf, but \»'a9 of ii]ita1 credit with Sbep-
pard ; yet wbt^a I bey contradictwl each other
in a point wliich curried no prnbaUility or im-
probability with iif in a capital matter, the
jury oui^bt to beiieve in f'avorem tuf^^ for it
inftke« tlic inatJer at least Jouhtful ■ and there-
fore (lie jur^ ought to liavc aixjuitted tbe pn>
wjnvr, for a reason in hvr^ and which wasiriven
in cobmel Sidney's ttial (ibougb sheviishly)
by the court, viz, that it is belter that twenty
ooceritH shoubt escape, than ontr innocent liuffir.
But to \insijt from the cretlibihty of I be wit-
neA^e^ to ibe (nairer of bis evidence, tins was
the second liiite tbat ihis sort of evidence in
any case eriti)Iual or civil was permitted to be
given in evidence ; and there are the same
exceptions in ii, ns are above assigned to the
«viik*uce ot Sitcppanl. As to the declaration
in my bird Hn9s4rU's trial, if a true» copy of
part of a deed or wrilin^^ was never yet per-
1^ Quitted to be given in evidence, much (ei^s hath
^^g ous^bt the purjKin of part of a writing be
^^Hven in tvid^^nte, csprcially when such a rea-
H^n is iMveii wby tbe witnL*B$ remembered but
^^ptrt of *t, as is i^Urn hy ^$beppa^d in my lonJ
•Koaaers trial, and by Humsey io tbis trial^
I wm. that be did not bear all the paper read.
AnrI surely f<o<»dt'nouj^h couUi no wsiy fortify
l^uiiiH^y's tvitWnce, lji?jo»*' clearly oi' another
matter, and that %(i vt^ry uncertain, that no
herd ought to have liecn given lo it. When
Oo'.Hlenou^h tobJ Mr. Cornish sotnelhin^ou^^fbt
to be done in the city, but in Ibe first pUiee tbe
Tower ought to lie seizefl ; to which he ati-
swerrd, tie would do what he could ; or what
eo<id he could ; ibc«« words may as w ell re-
ite to f ♦m*dfMM»iiif(t*« pr^f^eoi discoars^^ w|iere
b' law wouUI not defied
ill a» V9<*\\ as to tbe seizing
tliv j4>w<t J a»Mi )j Hi * 1 refer to the
(aat, yet they may Ik- ;1i interpreted
that 6e woufrt do wliat iir i jnui, or what ijo<hJ
he could^ to pi'iL'vrnt tbe neiziti^ tbe Tower.
And tf ihey ait* ca|iable of two senies, they
HMglit (II be iiiterpr«tc(l in tbe best for the pn-
D^dea, the frordj Are^poken not <i t thing
A. D. 1685, [46*
designed, hot as a matter, without which all
other matters were in vain^ and might be tntrm ^
matter of ibHcunrse, ft!» if as that f»etweett|
Bla^'iie and mate Ix^e about taking iheTovvery
and if there wm KUtb a dtsiirn on foot, it doibl
not appear tliat Mr. Curui«ih was cvir acwj
quatnied with it. Tbe satni;' nmy be said ss tol
what he atiked Goodenougb, when he asked']
how matters went : may not those wor«ls weff
enoug-li be applied lo the business of tbe Hot^l
Good enough manaij^i^d for Mr. Cornij<b uuij
others ? Anil if w bat GoculenouiE^tt said w a#|
evidence ol'a design of seizing; the Tower, tbat^l
as well as the treason auamst ibe Guanls, wa* j
treason by th#» art of tbe late king, and not b/j
the 25tb of Edward the third, if ii be true doc-f
trine which was laid down in the cbarg;e to tbi
carl of Siiaftsbury^s grand jury : and if so, ha
ouj*bt to hiive been prosecule<rfor it within sij
mouths, and iudietcHd within three months, if
the doctrine in Colleda^e's trial be true i andj
yet this destgii, if true, •was in Easter- terin^l
3683; and Ibe prosecution not lilt Oclob
There irai 3'et one piece of evideooc ur^
against him, viz. of his own witness SheppardfJ
who positively testified for him as to the maio^J
J^etin a circumstance seeinecl Ui testify again^
)im^ which was Mr. Cornishes bein^; at btil
bouse when the duke of Monmouth and tb^J
rest were there, when the declaration was read !
and upon that piece of evidence, as if it bad
contradicted what Mr. Cornish said befon ,
tlwre was a mighty triumph: wber^s, thj
most that could have fiecn made of it was, thaf
Mr. Cornish in part of his defence was gnilt^
of an untruth. And even ttiat was not so ia
tact ; tor beinsf charged to have been at Sbcp
pard's the night the declaration was read,
ans9vered he was never at a consult in his life^j
he never was at HbeppartlU iu any consult, hi
nKver was there with my lord Bussel, as be re
meml>ered ; he had be*»n at Sheppard*s sever;
times, but never hked Ferguson tor his moralt^l
and therefore never hked to be iu his company^]
and be did not know but that be iiiit^ht enquirii
for the duke of Monmouth iu other ptacetf|l
uiidthis is all Mr. Cornish says to that matter,]
tSbeppard saySi Mr. Cornish came into hii
tmiiseat lUie of the meetin^filo s|>eak with th^J
duke of Monmouth or some otlier, he coul4|
not be j>o&ttive in that, it was so many year
ago, and did not stay half a fjuarler of an hour i
he could not say it was the night ihc declara*
tion was read ; he did not know wheiher Mr.1
Cornisli came to speak with the duke of Moa-J
mouth ur not ; be could not remember wbetbe
Mr. Cornish was there in company whe
Kumspy was there ; there were not abofi
three persons there whrn Mr. Cornish came
which was tbe duke of Monmouth, Mr. Fer*!
guson, atid be could not tell whether the othe
wn?i the lortf Rujisel, or the lord Grey.
Now it would be hnrd to tiud out the con-^
iradiction bcl«viren Mr Cornish "s sayings andj
Shepimnrs evidence. ; both agree 'that Mr*
Coruiah hath been ottcn at bheppard'i huute^
w
1 JAMES n. Trials ofFemUy^ Ring^ Mrs. Gawd, ^ Comisk^ [461
and neltber denies or affirms that he was or
fvMS not there the night the declaration was
read, for a good reason ; which was, that Mr.
Cornish knew nothing of it, and Sheppard
knew not which of the nights he was there.
Mr. Cornish said he was not there with my
lord Russel, as he remembered, and Sheppard
doth not affirm he wa4 thei-e with the lord
Kiissel. Sheppard says, that he was there
when the duke of Monmouth was there, and
fir, Cornish doth not say that he was not there
with the duke of Monmouth. Sheppard said,
he spoke to the duke of Monmouth, or some
other person, but he thought it was the duke
of Monmouth, which is no direct affirmation
that he spoke to the duke ; and Mr. Cornish
doth not say, he did not speak to the duke of
Monmouth. So that if the account of t)ie
trial, set out by the authority of, and signed
by, Thomas Jones, \fe true, I cannot see an v
manner of contradiction between Mr. Comiah
and Sheppard : and therefore, as the c.ourt and
king's counsel did infer, that Sheppard's eyi-
dence, who positively denies the truth of
Rumsey's evidence, was so far from invali-
dating, that it corroborated Rumsey's evidence,
and cleared the thing which was tiefore some-
what dark, beyond all manner of contradiction,
is a piece of effrontery. So admitting Sheppard
had said Mr. Cornish was at bis house the
nigf^t tiie declaration was read, and had con-
tradicted Mr. Cornish, is it a necessary conse-
quence, that he heard the declaration read, and
promised his assistance to it ? Which must be
the inference, if it must support Rumsey's
evidence.
If it be not a necessary consequence, but a
probable one, that ought not to weigh with a
jury, to convict a person of a capital crime,
especially not of treason. The statute of
Bilward the third says, probably convict ; that
is, says my lord Coke, convicted upon direct
and manliest proof, not upon probable con-
jectural presumptions, or inferences, or strains
of wit: and to say ti'uth, when verdicts have
been ^ven qn such evidence, they -have been
often faulty.
To give some instances of many, it is re-
membered in our time* where persons were
convicted of the murder of a person absent, but
not dead, barely by inferenci-s upon the evidence
of foolish words aud actions : but the judge
before whom it was tried, was so unsatisfied
in the matter, because the body of the person
supposed to be murdered was not to be tbund,
that he reprieved the persons condemned ; yet
in a circuit atVcrwards, a certain unwary judge,
without enquiring into the reasons of the re-
* lie seems to mean the Case of Joan
Perry and her two sons, John and Richard
Perry, who were executed at (Gloucester L^nt-
Assizc-s, loGI, for the supposed miffi-der of Wil-
liam Harrison, who had been conveyed into
Turkey, and made a slave of for two years,
ao^ anerVvards eiwaped, and came back to
Erieve, ordered execution, and the persoos to
e hanged io chains, which was done aooord-
ingiy ; and atWrwards, to his reproach, the
person supposed to be murdered ajipeared alive.
My lord Coke relates a story* m his time, of
an uncle who beat his niece, tnatliad au estate,
which on her death would descend to bin ;
the girl was heard to cry, ' Good Uncle, do
* not kill me ;' al\er whioh she run away, and
concealed herself some few miles from Limi-
don. The girl being missing, and the neigh-
hours remembering the cry of the girl, and
tacking it to the probabihty that the uncle
might he induced, for his advantage, to murder
his niece, apprehended hiiv, and he was in-
dieted lor it at the sessions ; and the judgei
being unsatisfied in the evidence, hy reason of
the body of the supposed murdered giri did
not appear, the uncle saying that she waiB run
away, they gave him time to the moctaeisioos
to find her out, which he being not able to do^
thought to defend himself by producing ano-
ther girl very like his own niece, which he did
accoraingly ; aud being detected, it increased
the suspicion, and by inferences from all those
circumstances, he was couvicted, and after-
wards executed. ,
Some years af\er which, the girl appeared,
and claimed her estate : and therefore it is a
most dangerous and 4in warrantable thing for a
jury, in capital matton, especially in Irnum,
to convict a person upon the eyidepce of pro-
babilities.
As the evidence in this case apfuoat the pi-
soner was weaker than in any oi the pnsoedcnt
CW9, so the usage of the prispoer was moif
rigorous than in any of them : in all the other
cases, the prisoners had more weeks idlowrd
them to prepare for their trials, than this
person had days ; all the other persons, allcr
notice of their trial, were permitted to Imtc
friends, nay, counsel, freely to oouie to them,
and confer with tliem in private, witliout the
presence of a gaoler, which was denied Ihip
person : all the others, except colonel Sidpsy,
had soil words given them on their ti^»ls ; Jsrt
this person was rudely handled.
How of^en was he snubbed and Ind hold his
tongue ? How otlen did lie beg the patience sf
the court, to hear him and his witneaess?
Ant] when he was heard, how was all he uii
ridiculed ? And if be said he was innoceoti he
was bid remember my lord Russel said so to kis
death : when he said he was as innoosnt m
any person in the court, he was told, for all his
confidence, few believed him. If he mud the
matter sworn against him was imprfthibb
(which^iatli been taken for a pretty good topi^
for the disbelief of a matter testifiedTttosr if k
ridiculed by imi>robability, iqiprobaoiAiiy, w^
* This was at Wanvick Assises, H Jae. 1,
3 Co. Inst. 233. By the Civd Law, ^
there was direct and positive proof fluU ihp
person was killed, no circtunstances wen
mitted against the person accused of Ibc I
der. Digest, lib. &9, tit 5. sec. X4.
465] THut qf Wilikm Bkney^
\ prr>bd]ilUy ? If he ga to oroide he rg an honest
111 ' ' ' t1i4t i« all apDcarance. If be
%]• I (joodenouith oUout the ritit,
i)L I- 111 ,ir L ijj a branch of the plot. Jf he
€Vi\) ^^ (;osfri^btnsaw(tnt"5«J for him, I he
Hitiun. is rcprofu^vra iviiU huvsn..^ hel(»oJ the
pmoQi^r in jjnrki ' d one to
provo be it^reivi 1 ■' is tt»lfJ»
ttiHt un«i in onler to s to be n
shenfT; und such wa^ (C?, and at
tiie trial, sacb vras it fdieiHv iit li^ ; ti> ordef iiim
to be tJtti w'lien he vw sentencef!, wa<? nn m-
diffuity not useil t6 persons ol" Im ; a
thine* indr*^! p^rmirt*'t!, not co;i. » be
Hi ^ 1 isitinaJj^t^'tio mny he sus-
|ii pischief, if Ihdr arm*
were nL iit>fnv.
Of like kind wa« the reproaching blm wUh
cbeurflibiess of bi& countenatjce at )M con-
demnation, and that it tnii^^ht be afl «^f n straiot
his qtmrters were cxr"' ^ r - lued to
none above^mention Arm*
strong; and in aJI ti made
the lit*st defence, ai (Jintefi
con*iderc<l, the beit . . ._ . l .i .....uo upoa
an indirtinent of a cojjtial mattrr, and 51 r,
Cornish's was t?ie fviulj si. fhntjL'h it signified
notljin^^ t for \ in reads bis
trial, but will iK ' besic't, that
the (le fence, be, or anv tW hiuk eoidd inake^
would have arailed htin nothing:, and no ac*
count can be given for the prt»ceeilin^ against
Mr. Cornish, m tlje abore manner, but that
some of ihc judges, whereof three who wer« oa
the bench, had newly come out of the West*
where they tmd been so flushed and bardenedft
that nothing aeemed to them rigorous or cruel,
and the rest Bcetned to fie with thetu in tbs
practice.
333- The Trial of Witxiam DrsNET,* esq. by the King*s Specia
Commission of Oyer and Terminer, held at the Marshalsea \x
Soulhwark, for High Treason: I James II. a, d, 1685.
A SPECI Afi Cmnmission of Oyer and Ter-
niioer for i' v of Surrey^ being ap-
pointed for e' ^ of Mr. Disney, beibre
the Lord Chivi .niiiiL^of EocT^and, and other
his majesty's justices ; he wok brought before
tbe kind's commissioners at the Marshalsea^
in 8oulTiwurk, im June %\j in nnler to hb
trial upon no it«-*" fn^'^f ff>r high treason t
*; Vor printing oi ug a most vjlc and
tr"iiMifvii<; l*aptr :„ . most sacred ma-
jr . goverament, tutitulfd, ^ Tbe De-
• i f James duke of ^Tonmoulh, and
• tli*' NMlii'mjen, '' ''s now in
•anus, \i;/ ' .J thei^*
ll|><»n, iic pb - ' I i^'j ^"^'* desired he
might have I : J him, but was dc-
iii«i ; the court tcJUui^ hno it was not allow-
«klde in capita) CASes : yet uf»on bif; farlher re*
Hiu ' ' ■ ' * ' use of what bookf
b r hbk defence, and
Il4iu'^^«:*j Un Lite 4:'Jiii.
On ITjursday the^Clih, he wm brought to
ilia trial i when the me^^n^er deposed, that
• ** Jurjf-- 2:.ib. l^R.', Mr. Vnilium Jlisticy
%^ of (ly< r,
arr r, npon
ftM '\:\^
on u t > '^L> f ^i-d ^•'^d st;n>
fence < n
decnncil for r
II, A^,
having a warrant for tbe apprehending of tVn
Disney, eaq. he took some dies of m > ^
and two or three gentlemen to bis
when approaching to the house of oju i > rtci*' '
a garvJeiRr in the parish of Lambetli^ on iMoti*
day Jaue Ibe 1Mb, 1685, between « • '- 1
one oVtock in the tuoruing, he bn
apartment of Mr. Disney; where ti a _.,..„ -
cbamler, ho Ibuod ihe prisoner in his ^hr',
who craved bis breech cJi: but the mes^.tii-m:^
replied No, saying, if he had a nighi-gown 1
might pot it on. Immediately atli r viewing
bis breeches, there was found n bis
pocket, and also some other ih ^is^ \%
brace of pistols, and a great baug«;r in the Da«
tnra of a »it!imetcr*
HisnmidM.il d to be in
bed with him, I were upon
bis bed; bis djin^racr aooui oic^tu yeai*s of
age or thereabout was in another part of tha
r ' ' ^ lie. The messenger fart httrde^
tig into the printing* botise, ha
I -. . ..ii: Ibrms (as printers call tlieiiil
of the trujlorous ncdiuutii)n in the pvintiDi^*!
rv,^'\\\ ^ lliviv li in'^fA' t tiiDmitntioii iiUout 7jd
Htut lite
tiic messenger's jjm ijow they cam|
tlivre, he prclenfled i
The evidence apptariog vvr> ■ d hi
mnkirtg bttle or no defrric*^ t' wH
> thi
It
'j ami liJia tj*-^^'^ ""^^ * '^"^ VKiiiU tbl
1 O ij . JT» i ,
467J
1 JAMES 11.
Trial of Charles Bateman^
A true and full Account given by the Minister
of St, George, concerning the Behaviour
and last dicing Speech ^William Disney,
esq. June 29/A, 1685.
Between nine and ten o'clock in the morn-
ing', I wns sent for by tlie hi^li sherif rot' Surrey,
to officiate as ordinary at the execution of tue
prisoner at the Marshalsen. Belbrc he was
bron^'ht out, n neighbouring^ minister and 1
(upon the sheriff's motion) went into the room
where he wns; when the reverend parson
(having seen him the night before) asketi him
whether he had considered of tliose things
which he had formerly offered Jiim ; and did
▼ery patlietically press him that lie would give
^lory to God, oy a full and ingenuous con -
ibssion of his crime, intimating to him the fatal
consequences that might have followed, if he
had perfected that evil work: how many men's
lives might have been lost in the quarrel ; whose
hkKMi he was so far guilty of, as he contributed
to the increase of the rebellion, by his printing
the traitorous paper (or words to the same
•fleet). To which the prisoner answered (with
some signs of discontent) to this purpose; that
he hoped (<pcaking to the minister) lie did not
come to press him to unburden himself now :
that he had nothine to say that might bring
ftoy person into trouble, and his time was short,
•0 he desircfl not to be troubled about any such
matter: so that few wonls passed ere we
parted. Finding him resolved not to make
«ny discovery, I only told him, I did intend to
meet him at the place of cxecutiou, and he
thanked me.
^Vhen he came to the gallows, and was in
the cart, I came to him and asked him, how
he desired to improve those few moments of
bis liie that were yet to come? He answered,
in prayer. 1 asked him, "Will you pray for
yourself, or shall I pray for you I' lie answered,
1 will pray, and desire you to pray for me.
Whilst the executioner was preparing the rope,
1 shewed him the Bible, saymg, Sir, what
comfortable sentence do you remember out of
ihis word of Gw\ for your present use? He
snswerofl, Jesus Christ came into the world to
8:i\c sinners, of whom I am chief. And then
be proceeded in pfeneral terms to acknowledge
himself a <;reat sinner against God ; but afiirm-
cd that he had made his peace with God, that
he had conlesscd his si;is\tilh hunulity and
fervency, and had begged God's- pardon ; and
did not doubt but God had for the merits of hit
Son Jesus Christ pardoned all hii riDs, and he
was now under very comfortable hopes that
he should soon be happy, not upon the account
of his own merits^ but the merits of Jesut
Christ. I told him that this was very good,
if his hopes were well grounded. He replied.
His hopes were |frounded on the Scriptures,
which assured him that Christ died to save
sinners. Whereupon 1 recounted tu him some
other gracious promises of God to true peni-
tents ; as that of Kzekiel, ** If the wicked man
tumeth away from his wickedness, and docth
that which is lawful and right, he sliall save
his soul alive," (Sec. Afler which he made his
address to God in prayer, that he would for*
give him all his sins, and sanctify this his
affliction to him ; and prayed God to bless the
king, and that he may be merciful and kind to
his subjects, as well as just to his enemies:
he further observed, how gracious God was lo
him in giving him this admonition, (as he
called it) for God might have taken him off by
some sudden death, or deprired him of hie
senses ; and then (he said) it must have been
worse with me, but now God hath pven me
time to bethink myself; so that, though the
dolour and the shame of this death, having le
many spectators (upon whom he looked) may
somewhat discompose roe, yet 1 have peace
and comfort within. Af\erwanls he desired
me to pray with him, which I did briefly, ac-
cording to* his mind and present example : and
closing with the Loi-d's Prayer, he answered
every petition deliberately, and calmly : he de-
clared that he lived in, and did now die in the
Communion of the Church of England, which
he repeated again in these words, the Pro-
testant Churcli of ]i)og1and. Afler prayer, I
asked him, whether he would sin^ some pert
of a Psalm ? He ansu ercd No. Then I asked
him, whether he had any thing more to do or
say 1' He answered, I have nothing more but
to return you thanks fur your care of me.
And I pray God bless ^ou and hear your
prayers tor me, and mine for you, and our Sa-
viour Christ for us both. And so 1 lef^ liin
going to his long home.
This, according to the best recollection of
my thoughts, is the sum, and, as near as 1 cae
reiueniber, the words Uiat passed between Mr.
Disney and inc.
Andrew Wbstoii.
334. The Trial of Chaiu.ls Catemax, Surgeon, at the Old Bailey«
for High Treason : 1 James II. a.d. 1685.
1 HE Sessions of peace, Oyer, and Terminer,
and gaol-delivery of Newcatc, lor the city of
London and county of Middlesex, beginning at
Justice- Hall in the Old Bailey, on the Olli of
December, 1005; Charles bateraan, against
whom an iudictment of high- treason had been
1
found, lor conspiring the death of the late king,
^c. was brought in the custody of tlie kcqier
of Newgate in order to his arraignment ; and
being ordered to hold up his hand, he desired
tliat lie might fii-st say something for hiiiiselff
in order to put off Llis trial; batwaaleUli/
i
Recorder, (sir Th^mnf JeiinerO he inusl
fklrfid be fare hn cowld Iw li^ftixl. \VhcrA|niii
desiriti" to kuuw n Itctlier lie inlg'lit have the
Mfiic I ' I I . hrs |ileairm(r as before^
fls to 1^ tur Ills trial; and bcin^
miTWt ' f "Ul up his hand» ttmi
ihcti 1 L
M. : .♦ f. i.lrv niid de-
sl , He was
n ^ ^ I ihrreforc
prayt*'' 'i ("Ti'^i't* iiims wymij, he liail been
cluyc: pn.snnn- Tur ihe B]>acc of ten weeks, and
wafS o\rrr nnti above very mncb indis|msed ;
and furtiirr alleilg'f.'d^ he had had no notice nor
fKinueU *>f the jury. A* for notice of trial, he
wa« imsw ered, that ti was not usnal to g-ive any
in that court, but that lie ou^^^iit to have ex-
fiecied it» ^mi i<rep«ire«! for it accord intjly ; and
f«s ^ :'i jiaimell^ it was not dcn\cd him.
Y^ ^'^ed a copy of the imiictment, but
' Vii . LJid (I i^ould not he altowed ; and upon his
further ulled^^ng- his tin preparedness and no
IIDtiee of trial, and ihe like, the king^^s counsel
»fcr^cd thai he had opportunity enough to take
"liotiec of hi:ii trial, for tJiat it was upon an indict'
TOPfit of the precedent sessions. Then he
Hiiked^. what time he might have between lus
arrojg'nnient and trial ; and was answered, as
inuch as woukJ Ntand with the convf^niency of
Ihe court : and after seferal honrs respite, he a
«eetifid time was broug"ht Ui the bar, and then
upon his humble request, pen, ink, and paper
vrns. allowed hirn, and bis son to aK«i»t him ;
and thi-a were s^uini (n try the issut^ lliehard
Aley, c!Hj., Uicluird VVilliums, John Cattnum,
Uatrit'k IJarret, John Palmer, Jamej* liayuor,
Edward Ilhi-tlish, Ctetirgc Lilburo, E)ariiei
Fouls, IMer FAoyer, l^awrence Cole, John
topper.
And he makings no exceptions to tbeni, then
the Indictment was read.
The Jurors, \c.
'« That rharks Bnt^man, late ef the parbh
«f 8|, Diiiirtiui in the We>it, in the wanl of Far*
finffdoo Without^ l^uadon, surgeon, a§ a falsi;
tr«jtor» »<jiiinst the most iHustrious and excel-
lent princ^% Charle* the Bcuonfl, lale king of
Knjjland, Scotland, France, and Ireland, dc'
lender oi' thr faith, :md his natural lord; not
tiaviop^ the li^air td'Gdd in his ht-'art^ nor weig-h-
i«if the duty itf hi>4 alUifionce ; hut heinfr
*]* (Uul Unt^,
*•>' , ^vhich n h
our iate lord the I
«f rj^t^t ntT^rht !
Sit
|i>
k
111
<>i
Aiitu 10 dep4'
1 '«f the
iiral
1 of
and
iii^
•id- i
^ (lits
4 mill mII liitint
I cominoft triUM,
H and disturb, atid wav and
Mjr lale lord the kintf, within
utir up, Ti»o\e^ and prociin* ;
111 of our lati- lord the kin;^,
. . . ► ,^(^,
:>tlll
A.D. 1685-
lord the king to death and 6na1 destruction to
hrin^ and put ; the 30th day of Maiy, in the
35 til vear of his rei§:n, and divers other day*
and tfmes, as well before as nt"' ' lie
parish and ward aforesaiil, lal y,
devilishly, and traitorously, ^nm ui^ii^ mutt
reMs and traitors to the Jurors unknown, did
conspire, compass, ima^'ne, and intend our said
late lord the king-, tlien his supreme and
natural lord^ not ottly of ]m kini^ly stnte, title,
power and government of his kin*^doin of lin$* -
land to deprive and depose, but al»u our snot
late lord the kin^ to kill, and to denth brincf and
put, and the ancient government of thiV kiog-
dom to cliauge, alter, and subvert ; and a mise-
rable slaug-hter amongfst the subjects of our
said late lord the kins^ to catiae aud procure,
and insurrection and rebellioQ against our said
late lord the king- to procure and os^int. And
the same most wicketl treasons and traitorous
conspiracies, coinpaRidn^s, imaginations and
fuirposes aforesaid to eftect, and brinj^ to p|as»,
le the said Charles Bale man, ^ a faUe traitor,
then and there (to wit), the said 3(Hh day of
May, in the 35th year aforesaid, and divert
other days and times, as well before as after-
wards, at the parish and ward aforesaid^ false-
ly, uolawfullvi most wickedly, and traitorously,
did pnumise and undetiake to the said other
false rebels and traitcjrs iben and Ihrre being
present, That he the said Charles Hutt^nian
would be assisting and aidin^r in the taking and
apprehending the person of our said late lord
the king, and in taking and seizing the t^lty of
London, and the Tower of Lo(idi»n, the 8dVoy,
and the royal palace of Wtiite-ball, rtgaiust the
duty of his allegiance, aguiu.st th» jieaoe, Sec,
and against the form of the statute m this case
made and provided, &c.
Mr. Phipps, counsd for the king, opened
tlie nature of it, and was seconded by Mr. Ser-
jeant 8elby and i^Ir. Charles Moloy, alter
which,
Mr. Josiat Kcelinfi wa» sworn, whose evi*
dtioee was, that he had been at divers meetings
and consul M, where the nn'thods bud been pro-
posed for the purposes afnressiid ; and more
parlicala^^y one time with Uumbold the Malt*
ster, since executed for high treason ; and that
then, three papers were produi^jd by ltuitd»old«
and opened, rontainoig the uiodcl ot the ilesign,
to divide tli*.- eity into twenty pwrts, and to
raise five hundred men in each pj^rt, to b«
under one chief, and nine or ten subordinatea
whom he should appoint, the names of the lanes
and strertsi of car- h division lieing likewise in-
Bertcd therein; and at that time Rumbokl
nro|M»sed the busir»t»iiofthe Rye- house, iwiying^
he had a house > ery convenient to |»lant nun
in, tn ^P!/e the king in Win return Iroui N<j\v-
II looked t A^Hiil.
Hofurthci *.-,-.., ..^. .- -- ilivera
utbcr places whtTe it hud heoi diicoimed ta
475]
1 JAMES R.
coart appointed bis son to make his defence for
him.
The witnesses against him were Keeling,
irho onljr spoke of a desig^n in general, without
tnentioning Bateman to be concerned in it
Thomas I^ and Richard Goodenough swore,
at several times and places, his discourse to
them severallv, of seizing the Tower, City,
and Savoy. Baker for the prisoner said, Lee
in the year 1683, would have had him insi-
nuated himself in the prisoner's company, and
discourse about state-aflairs, and by tliat he
would find a way tp make Baker a great man :
upon the evidence the prisoner was found
l^uiltv. Against Goodenough's evidence, there
IS only this to be said, that he was pardoned,
but so far only, as to qualify him to be a wit-
ness, though not a very credible one, not only
the guilt sticking to him, but even the punish-
ment of what he had then lately done, hanging
over his head ; and what was said for some
time, of all the witnesses for the king, at that
time, and for some time before, was true, they
hunted like cormorants, with halters about their
necks, though even that matter by one of the
king's counsel was boasted to the jury, as a
circumstance of more credibility ; for he as-
sured them there was not a witness which he
produced had a pardon, as the witnesses in the
Popish Plot had. 'Tis tnie, in the Popish Plot,
upon verv good reason the witnesses having
oonfesseu what they pretended to know, of
matters in which they had an hand, it was not
thought proper to use them as witnesses, though
they had used them as informers, till they
ivere pardoned, lest it might happen to be, or
at least it would have been, suspected, that the
tciTor of the punishment of the crimes con-
fessed might iiitlurncc them to swear falsely,
to the jeopardy of other men's lives, to save
their own ; wiiich, as the lord Howard Inily
said, T\asthc drudgery of swearing. But to
Lvv's evidence, besides the evidence of Baker
against him, that he would have procured
Bakf r to have been a witness ai^^uinst the pri-
soner, and enticed him with the promise of
making him a great man ; and besides that, it
appears in House's trial, that Rouse and he
were upon the trepan with each other, to bring
each other into the pretence of a plot, in order
to make some advantageous discovery of it, of
which liCC got the start of House ; tlie objec-
tion which was made to his evidence, why Lee
had not accused the prisoner sooner, there be-
ing near three years between the pretended de-
sign, and the discovery of it, was never satis-
factorily answered. It was a foolish story, to
say Goodenough could not be had before, and
a single testimimy in high treason was not suf-
ficient ; every one knows, that though a single
witness is not sufficient to convict a man of
high treason, yt^ a single person's testimony is
enougli to commit a person accused, an<l upon
conviction on the testimony of a single witness,
to make him p. prisoner for has life, witness
Mr. Hampden aod others ; besides the subject-
iog lum in other corporal pnaisbiaeDtsI iaflict-
Trial of Charles Bateman^ f476
ed at discretion, witness Mr. Johoion and Gates.
And in 1683, when the' ^ords wefe pretcudeil
to be spoken, Bateman had not been spared, if
accused ; and though it be a good reason for
the court to have given, wliv tliey did not pro-
ceed again&t the prisoner till that time, because
there were not two witnesses against him ; yet
it was no reason for Lee, why he did not ac-
cuse the prisoner before that time, especially
he havNis- been several times betbre that time
examined, not only of what he knew, but of
what persons he knew concerned : but, to say
truth, Lee, in the trial, did not pretend to an-
swer the objection, but the court, in the man-
ner before, endeavoured to answer ,it for him.
The last matter observable in this trial, wai
the permitting Bateman's son to make his fk-
titer's defence, which was an extraordinary nn-
paralleled favour; it was the first and last time
that, oranv thing like it, had been done; the
lord Russel's lady, indeed was permitted to
take notes at the trial fer her lord, but he only
was jiermitted to make use of tbeiu. Fits*
harns's wife, when she but whispered her hos-
band, or bnt told him what jurors he ahoold
challenge, and what not, was severeW correct-
ed, and threatened to be thrust out ofoouit, ibr
doing it in prejudice of the king. In Col-
ledge's trial, tie was told, that persons that ad-
vis^ a prisoner in treason, even beibre a trial,
were guilty of a hi|^h misdemeanour; nay, a
solicitor had l)een indicted of high treason fer
it: and therefore nothing can excuse the allow-
ing the prisoner counsel in matter of feet, as
was done in this case (it is not material, whe-
ther the son was a barrister at law or not) hot
the weakness of the jnisoner, who to all ap-
pearance was moped mad.
But the court, by excusing their favour upon
that account, incurred a worse censure; fer
nothing is more certain law, than that a penon
who falls mad after a crime supposed to be
committed , shall not he tried for it ; and if he fafls
mad after judgment he shall not be executed:
[3 Coke, Jnstit. p. 4. 4 Co. Rep. 124. b.
Hale's H. P. C. Vol. 1. y; 35.] though I do not
think the reason given tor the law in that point
will maintain it, which is, that the end ofpu*
nishment is the striking a terror into others,
but the execntion of a madman hath not that
effect ; which is not true, ibr the terror to the
living is equal, whether the person be mad or
in his senses: and that is the reason of breaking
the person executed for treason, and cxpoaioy
his quarters, which is done rather to deter the
living, that for punishing the dead. But the
true reason of the law I thiuk to be this, a per-
son of ' non saiia incmoria,' and a lunatick
during his lunacy, is by an act of (Sod (for so
it is caljed, though, the means may be humaap
be it violent, as hard imprisonment, terror of
death, or natural, as sickness) disabled tonaka
his just defence. There may be circuinstunH
lying in his private knowledjre, which wonU
prove his innocency, of which he can have m
advantage, because not known to the pofiflBl
who shall take upon them his defence^ and
4773
for Ht^ Tfeason-
A.T>. 16Ra
[473
ibM Is tlie reofinn many civil actrons ilic uitJi
tlic p«ff44m<; AKGLitiftt whom lliey Uy iti their
lit'v ml that i% the rciitMiri uhy in cri-
l|ii -, pt-nitnis bv onhriftiv coui"fte of
^^Vnr i 1 1 I reason
^Wtihe ( MiTi, ii> ii. .1. ..».-.».»
..Lirorexeci ... ..
klicrc \TAs to hnve it out < <* ot Ihr
^itrcr, in his own httiiils iti ^ mi?: and
ttrere ift UH nmch reason that the Jieir or rxe*
<giitor Cffft person who halh commiltui a trime,
'cU bv law ^roiild havu lurtVilcct his e'ttule
1 his\ir^-t?!r^ he hMil k*« iiUuiritcil ol die
nc, si J lUf ersUitt* ihcv rlnim ihmi
J fti 1 ' f'cn attuiiJtfd in liis hfe-lime,
jich hnJ ^^R vented the i^aid estntcai ^c^t«
" tu Ibein. AtiJ it hath bc«ii ttometiineft
t' -ri, of the persons
, and without any
wbich
HI .^ . -i .. L ji parha-
liere I lie persous were
J orerttHtliihein.
Ind th«^n»gh ot late ymrs it Itath hccn pi«-
ji!?r!, thai the king's sa^fcty dcprnd* upon the
ud execution ofa penon guilty of
I : yet ihis ivas never thuughi lo
ir in imih in itielf is 60 : for il In
l»J I >n as well as experience, thai what
pUi^\ fj\ VI itchex, \% true of all malefaetort,
en once they are in custody, llieir power of
'!se8.
f fore no otherwise hencfitcd
lUinsrlliehkii
rnpics ot ihetu ; it is in-
:, n& heinijf A^^ain^t rhris-
lehajity to^uti a great offeuffer cjuick, a»
\ BtiJeih into another worhl, when he is not
i oipaeily to tic hiia»clf for it. Hut what*
r the r»Mon of t[te hw in, it is ptmtt the U\y
and ihr remedy ing- ■ ' * tmai5on»
I the .njd of Henry the t e [cap.
' ' i ri man litJl
li^ It'treuAon, l»e
a«»on, thi-
i:U CO fin'
even ih
caljeji a cru<l oiid inhumarrf^ luw^ and
w*«ff»»re lived not hmif, for it was f\fter wards
vated, [2 »od *Z Phil. »nd Mar. <*^p 10.] ko
I the hiw^ tu thi^i mnttrr, h hen this mail
lair' ' a c'otii'
I* non
nrm*f l;iii iii^t ijiiii'kc beeu
u), much 1 iK
I kuow Lt v^ .^ M. ^u^kiitvdt tbatif tttli matter
>lhuhcrc3ip(tal mattem;
lid
el' fian tomi memorta should be permitted lo pu
oil a Iriulotaluy execution, all ruah lactora will
pi el end to be &g: But 1 say there is a gvemi
difVerr nee b*;lween pretences and reaUlies, an&l
Ma till and non lonn memoria halh been oftetifi
Irvcd in [1 And. 107.] capilfll maiU-i-s, tnji
ti... .. .;.,,,.,., ^ have reaped so little benefit byj
oes, it being: ahvays discovered, thatl
:... ., hear of it. In ihiat case the prisoner I
nni^'ht hnve been tried as well absent a*$ prt^J
sent, according to that repealed slatuic, fori
any advantnge he did or could reap by heinf
previ^ut : and it ^ecmK very probable the cotii*! 4
thought him dJBterijprrrd, for if he wasof nati^
melt airy, his 60n oui^ht uot tu have been per*
inittcd to make his fathc^r'a dciencc ; if h«
was di&'ti'inpered, he ought not lo have bet Oil
tned, much le^kS CvXft'utiiiiL And lliia perso«
being the last man, m tiir as I can remember^
or can hud by the printed trials, who suflcrei
for ttie plot of high treason lirst set on loot by i
Fiizhfirns, and carried on ag^ainst Colledj^e/I
and the other ptrt^ons herein mentioned : ancr I
the design stoppings here, 1 trhink fit to end mM
remarks on the proceeding's of ad capilafi
matters with him. But 1 think it is tit for mM
to make some apology for the things, and fof^
myself, for taking" on me to censure the opi-
nions and actions of persons whose chai-actersjl
carried authority with them. I confess I Gcvcr
thought that either the great seal or a gar^^
mcut added to a man's sense, learning, or ho^
nesty ; but he remained just such, as to tho&i
quiihties, aflcr hia preferment, as he was tic^i
lore : and as to many of the persons reflectc '
on in these remarks, the censure of coloncli
Siihicy wn« true ; and for tlie best of them, iC
ili plain thry not only varied from one anothi:
in iUflr fmlnif»iie Jiilt CVCn ffOm iheni-Sf I a *- in.j
same case, I'
^ uction of tiie pi «1 i
tVjr his hte; witness the opinion of the <?ourt in*]
the dial lencre of jurors not having a freehold^
and the designing to levy war, not treason
within the statute of Kdw. Itl. and forty otheT
matters. And that not only gives a liberty ta
enquire, hut naturally puts one upon the en«jj
mj try « which of the two opinioits is ri^hl N
Thougti it is impossible for one not to UiinkJ
meanly of the person, who, in $o great a con<^
cern us a mnn'S life, should he ^o raslras t<i
■'"'Ilia opinion without consideration, or
uly as to give differc ul opinions in tht
case : lor if a man w ho tells liis|or5
van] and Ibrward, is justly siisfiected i
; T of truth, the knov^ ledge and smeerity o|
a man, who prv^ different opinions in the
i»amr case, is justly sus|H!Cted in point of law ;
which togLther witli the fulsome, but iujuriuui
stuff vented for crown law, was the lirsl mat-
ter which put me on considering and whtjn
Hb^t 1 hav4 done.
Asfbrti "" '■ ' ihtitareproa
to lii« sou V ith philo^ophyf^
having Imjipi i r.i»n>i»u> u>i Uie spuce ot
whoh' ;^ear, niul thul at Athene ; surely uni
w ho hitb had hr^ education at ooc of th/thrce'^
479^ 1 JAMES H.
mat BdiMls fiir some yesnr, and afterwards tt
iie mdTenity, and lastlj^ twenty fire years
coDStaat residence in an Inn or Court, and
twenty years attendance at Westminster- hall,
and not dxyerted 1^^ the usnal employs- of a
Trtn oft/okH HuwtptUfif
\/m
solieitor or attorney, nay be allowiBd without
the imputation of confidence to give his eensure,
upon consideration, <Mi the extonpore jodg-
mente or opinions of persona, thonm of greater
standing and character than himadf.
335. The Trial of John Hami*den, esq. at the Old Bailey, for High
Treason : 1 J^mes II. a. d. 1685.
December 30, 1685.
IHIS day being appointed for the trial of
Mr. Hampden, after the judges came to th«>
ooort, and the court was called, the ofiicer wa^
eommanded to proiieed to call over the jury
whilst Mr. Hampden was bringing down.
Cryer. 0-Yes, yon good men of the county
of Auddlesex, summoned to appear here thii
day, to try the issue which shall be between
our sovereign lord the king, and the prisoner
that shall l>e called to the bar, answer to your
names as they shall be called, every one at the
first call, upon pain and [leril that shall fall
thereon.
Clerk. Sir Hugh Middleton of Twittenham,
bart. ; Sir Richanl Dunton of Thistlewnrth, sir
John Berry of Stqiney, sir Robert Clark, of
Holborn, sir Tbomaa Rise of the Strand, sir
John Friend of Hackney, sir Henry Johnson
of Biaokwall, knights ; Richard ilorloy of
Chelsea, John Shales of the parish of St. Mar*
tin's in the Fields, Robert Fosset of Marybone,
Josias Clark of Chiswick, John Forster of
Kensington, Jefleiy Nightingale of Cripple-
Site, William Cleave of the same, Charles
inton of Co?ent Garden, John Stokes of
Hatton Garden, Henry Hawly of Brentford,
Thomas Cash of Bow, Andrew Lawrcocc of
tlie parish of St. Martin's in tlie Fields, Nehe-
mian Arnold of Westminster, Simon Smith of
the same, William Pressgmve of Uie same,
Nicholas Barter of the parish of St. ]\lartin's
in the Fields, Humphry Bradshaw of the
Savov, Gilbert Herring of tlie parisli of St.
Martiu'H in the Fiilds, Walter Bridull oi' the
bame, Thomas Elton of Stepney, Matthew
Batemnn of Whitechapcl, Thomas Cuilis of
the parish of St. Clement Danes, Peter Lugg
of tlie parish of St. Giles in the Fields, esquires ;
John Meridale of St. Giles in the Fields, J :imes
Supple of the imrish of St Martin's in the
Fields, Thomas Whitfield of the same, Richard
Cook of the same, George Cli.sby of tlic* same,
/l^ntlemen ; John Hains of the same; Jt>hn
lieeson of the same ; Richard Bromtie Id ot
Holborn, Micliael Dod of Clerkenwell, .lames
Fern of the luuishof St. Martin's in the Tiolds,
Robert Dn>ok of the same, John Vigures of
Westminster, Kdmund Aubrey of the ^lansh of
h^ Martin's in the Fickls, John Cannon of the
JMirish of St. Giks in the Fields, gentlemen ;
lohn haWy of the same ; Thomas Barnes of
the sfae; Francia Edniands of the' same;
Robert Longland of the same ; Edward Ham*
stead of the same ; Thomas HintOD of the
same, Josenh Blisset of Whitechape!, geutle-
men ; Zechariah Grant of the same ; Kiehard
Fitzgerakl of the parisli of St. Martin's in the
Fields ; Benjamin Boltby of St. Giles in the
Fields ; Richard Dorrel of the SaToy, gent ;
Anthony Hall of the same ; Stephen nittins
of the parish of St. Martin's in the Fields ;
William Stephens of the same; John DaTis
of the sanio ; Richard Hutchinaon 6F the
same; Anthony Nurse of Fglhamp Rabat
Moon of the parish of St. Clenaent Danes,
Samuel Peacock of Westminster, gentlemcB ;
Richard Boise of theaame; Samuel Biieh of
the same; Peter R«>eve of the same; Tfaenis
Hutchmsof thesame, John Hewlet of West*
minster, John Towers of Covent Gardea,
Richard Aubrev of Whitechapd, John WeNs
of Marybone, William German of Ht, Ckanent
Danes, Thomas Harris of Holborn, Bar. Parr
of East Smithfield, John Cassels of the parish
of St Martm's in the Fields, Samnel Bialiop of
St. Clement's Danes, William Wheatly of the
parisli of St Giles m the Fields, gentlemen;
Christopher Chambers of the same ; Sanod
Brown of the same ; Benjamin Don of the
Savoy ; Samuel Jewel of the same ; Hi^
Hammershey of thesame; Abraham Hairi-
son of the Strand, Thomas Nichols <^ IHmem^
William Dean of the parish of St. Martin's in
the Fields, gentlemen ; Thomas Pamel of die
same ; I^Iatthias Cooper of the same, W^illian
Marchant of the same, Richard Cam|dmi, oT
the same, Simon Sniiih of Wood-street, West*
minster, Thomas Green of Westminster, gw-^
tlcmen.
Clerk. Set John Hampden to the bar.
[Which was done.
John Hampden, hold up thy liand. [Which
bedul.]
Middlesex, The Jurors for onr soyerrign
Lord the kinpf, upon t'lcir oaths present, that
John Huinpden, late of the parish of St Giks
in the fiilds, in the county of Middlesex, gent
as a fa'rtie traitor against the most illostriSQi
andoM-elk'nt prinris our lord Charles the 8e«
cund, late V\\\\r of Kn;r)and, Scotland, Fmes,'
und Iri'Uind, del nder of the Faith, thy iwttfHt
Lord, the fear of God in thy hi art not haijiMf,-
nor the dutv of thy allegiance any wM'
wei^hinpr ; but bein^ moved and sedtMBd^ff*
the instigation of the deril, the ooMM Mi^
481] f^r High TrefiMon.
and true» «lae, am! tiatunil olxHliLiKe, winch «
true arifl frtilhrul subjtxrt n( our »miil bU' lord
tlir 1. him our said ki*» lortl ihc
luh_ lit lobear, wlioHy witlnlriiW'
intj ; r.iiii mi.Li^'jii:
Hnolestrei
trmoquitlity ol" ti>i> kih-u pu •» imi^^.m.. ^.^
f#l«uiH,»"ole*t^ mid disturb, ami war und re-
MUrtn :»■'.! -MT said I«f" ^""-1 'li^ king*
within II Lfdom *»f 1 ^I'lruii,
more, ;' -jud i ^ uf*»t <»t'
unrKHiu liia kini^dom
i>r Eii'^ id alter ; aud
om ^ iii« lillc\ bouQur,
AU'i tinl rroHit of tUtt
kMijjf^iiiti «>t Uij^laiid to dep<>^e aud <te-
»▼«; And htfii »mr**?Md hie loiil the kiusT, t<i
ii»ri to brinjf and put ;
! thti yt'ur ol" the ri>i»;n
J UK kiu^,'< Imrles the Ho-
. Ace- tlii' 35lh, and di^i.Ts
»c«, ,'14 wpH betbri' as alter,
Si,Ciiles ill ilif! Hcldis, in tlic
.V t .U. ivMnalirioiislj, i!e-
Udivprsuttx r false
lelu ]'-':i;id 1 Ti didst ci^tispii-e,
C(j- \ and rmcnd our fi^nid late
lilt' , iiieri thy supreme and nn-
'fH^ni iord, iK»l uiily of his roynl litftte, tilb»
'Vpwvr, tiud ^orertimeitt t^f this his kingdom of
BogUfKit (o dif>rive <aud ca^t ciowut bui ulisa
(inr mid ktp tord the kintr tu killi siud to death
toh ' [itil, anil tlu' luuioiit jjfovemmetit
I i »m uf £n;^!atjd to chiini^c aUer,
Milfcvtrl; mid a luisM ' ' ' '
ill;' ...jlllr :-lS of Olir '
h liiH uliuit* kiivjrdnni "> i-n-im*i,
[irociiri*, ntid itistirrerlion nnd re*
' ' *=rii* I »**' i'»rel the king,
to i»roture :
d
to
belli ...
Witliiu 1
Atidth«
ici|p(, ini
,anddevjhsh
I41US cc>TiS[iiranes, compass*
m, and jmr|MJiM?s aforfi*«ii!, ta
fulfil^ pt riect, and bring lo |ias3, thou the said
John ijant|j4len, an a fal^^ traitor, then and
th<r#*, (to I* it) the said «OtU di\y of Juh% iu
the year of the reign n** rtur said lute lord (he
kiog, ^5*h nfore«aid. nud divers other days and
timex* as wtll before a* artir, at the parish of
Hi, CjiJen in ! ' ' ', in the said
€ioiiDty of iin lawfully,
wick«(tly, iit'vjii .{ij\ . uiiM ii.ur'noiiifty, with
Jainc* fate duke o\' M«H»iouth, and divn^
, and cons'
othrr fal<«^
yimr»elf, in*
»ent toiuuvt' ■ ,
money > and a ^;
mid unr and ilVm 1
tiv
Uii
of
•at I
Hos UiiiX nu'v t^^ \
MJiilirt the f«jrni
*Jt¥l IS
nrmf^i,
u inrtl
i9t uur
lord the
f\'j and
tU.lr
<1. Vi*
^ly lurd, 1 percoira that 1
.'t a fu'^l, for wh;di I w«si
A.B. 1685. tiaf
indicted rnhnre two veurs agfo, and I was con*|
victt d of ii*, find Jid HurtVr impnwntnenl,
execution, upon the judcfnient that was grven]
against nie, and aUJ still undrr extx^iition for J
*' 'ineibat va« *»et upon mc by wuy of pu-T
I em for thiit fact. 1 iJiink, my lord, I.J
"".V nH ttjuchtu itay in poiof. i#f liw lor m^'ftelf^J
as any pHsoner that ever came l^*fore yonrJ
loijiship npon Huch an a'-^ ''^» • '-^rce tried,. |
twice convitied, and twU I lor ihef
aame f:it:i, mu5t he very ' -^fv ; bntaj
my lord, I do pans by all picas \% batiio^ver. atu||
cast my self u holly upon the king's m<:rcy|T
that is my r«soIutio^l, my lord. J
L, C J. (Sir Geortjre Jeffcries) Then yoil^
roust pleAd Ciuilty* or TSot Guilty. Bntyo ^
say yon hare been tried twic-*4 for the same lact ji
Were you ever trie*i for hii^fh-trenaon before H
fbe very punishment that yon all edge to \m\
inliicterl upon you for it, is a plain pr^of ihatl
you were not tried for high treason, for tbai|
it* Dot usually [luniiihed by tine and impri^ou*
mcnt.
Hampden, 'My lord, I only insinuate thtt]
the fact is the same.
L* C. /. Vou must pkad Guilty or No
Guilty*
Cff;tk. Ate you Guilty or Not Guilty af th«J
high-treason, whereof you aland iodicleiJp]
Jottn Hampden i* 1
L. C. /. You cntuit [dead dti^ectly ; say yMiil
are i tuilty, m- vou are Not Gttiliy* J
Ut^iphtn, 'Sly lurd^ i 'do plead Guilt|
to the Indictment. Will your lontsbip
rd lo hearnie ? My lonl, I do canlciMi tnjfl
< fi^aiji»t the king \h very s^ri'at. I ami
>v.> horjowfid for it. My lonf, l know ih«
kin|^ is the fountain of mercy a« well a» jus-
tice, an ioexhau>;ti!}|e fouotam of mercy ; aottl
if 1 may he so happy to abiain your lortlship^sj
intercession to hi» majesty on my behalf, 11
doubt not hut that grace and gootlness uhicH i
hath been exiendeil to others, may be besto^cdjj
upon me, 1
L,C,J. Mr. Hampden, as the kmgiaths^
fountain of mercy, «o it comes freely froml
him ; I confess, ati the circum^tanceA of yourC
t a^e are, >uu have pleaded the best |dc a to* tind [
mercy ; f»ut how lar the pleading^t^uilty, HheaJ
there is full evidence to proie you so, inay-i
move th€ klnyr to have mercy upon you, 1 di> '
not know ; you mu&t apply yoursdt to th^^
kin^.
h'n^^iu.iffi^ 1 liiimhty hrg vour lordship'i
) I know none caii «fo it better tban^
■ hip.
L. C* J, You must reconi the fdea.
Hcimpdrn, ftly hml, I humbly htf^ youpl
' ip, that y mi would be pkiii^ed to repre-«fl
I his majeaty what my pa;*! suHennt^iJ
haw been, and how sorrowful I am for ha*in^/
otfcnded his majeftty, and that your lordahipjj
1% ould be pleased to be^ his maje*it} 'a ffrncloug J
iiardon in mv behalf; I hunibly b^aet^h yoitri
lardship to <fo it, a ltd it ah all he* the eudeavouf j
♦ See the Hepoit qf th« TrinJ, fol 0, p. 1053*
1} t
48S] 1 JAMES II.
of all my life to bebave myself as dutiful and
loyal a subject as any the kinj; hatb.
L. C. J. The king shall have an account of
what yon say.
Hampden. My lord, there is one thing I
wouM iiunih1yl)eg the liberty for; there are
words in the indictment concerning the death
of the king : my lord, what construction the
law may put upon such an action, i am igno-
rant of; hut for any direct intention of taking
ai»ay the life of the king, no man docs abo-
minate and abhor more than I ha?e done.
L. C.^J, Mr. Hampden, it is but a necessary
construction that the law puts noon it, it is a
constniction confirmed by wofnl experience.
We see that rebellion, let the beginning be
what it will, nerer stops, unless b}' God's
great mercy and the justice of the king's
cause, but it will end in the death of tlie king,
it hath a natural tendency that way : but how-
ever you are understood that you hud iivit any
thoughts of killing the king, but only to raise
rebellion within the kingdom, uhicii must ne-
cessarily rnd in tliedraUi of the king.
liampdea. My lord, no man doth ubhor that
more than I do!
L. C. J. You may ask Mr. ITampilen if he
hath any thing to say why seuicucu of deatJi
■bnuld not rmss upon him.
Clerk, John Hampden, hold np thy hand.
Tliou stahdeat convicted of high treason by
your own confession, what can you say lor
yourself why sentence should not ])ass vpan
yon ?
Hampden, My lord, I bumbly cast my-
self unon the king's mercjr. My lord, I would
hnmbiv move your lordship in one thing, that
I may'have the liberty of my friends and rela-
tions to come to me in prison as they did
before.
L, C. J. You must apply yourself to the king.
Hafnpden, Will your 'lordship be pleas-
ed to order it, my lord ? I had livo or three of
my own relations the king was pleased to grant
to come to me.
L, C. J. It is easy for you, Mr. Hampden,
to make your application to the king, it will be
better for you : I direct it as the better way to
opply yourself to the king.
Hampden. 1 only beg it, my lord.
L. C. J. In the presence o^ a keeper I do
not know why his relations should not come to
him ; but I tliink it had bi^en better to apply
yourself to the king.
Hampden. My lord, I have two or ibree
near relations allowed to be without the pre-
aencc of a keeper.
L. C. J. Mr. Hampden, that we cannot do,
that was an extraordinary favour, and as that
<;ame from tliR king, so you most apply your-
self to the king again; hut in the presence of
n keeper we g^-ont it ; wc cannot grant it with-
out a keeper, if you will apply yourself to the
king for that, you may.
CryiT, Gentlemen of Middlenex, that have
been summoned upon the king's serrice this
day, the court discharges you. .
Tried of John Hampden^
[4&I
Then afler the Judges did withdraw, the
clerk was commanded to proceed.
Clerk, John Hamp<leii, hold up thy hand.
Yov stand rx>nvicted uf high treason by yinir
own confe^ion, what can you say for yonraeify
why the court should not pronounce sentence
U|M)ii you ?
Hantpden. I only ^ilead the king's meivv.
I ro!y ii[K>n no other thing.
Ci'jrr, OYes, all manner of persons are
commanded to keep silence whilst judgment is
givinu, upon pain of imprisonment.
Mr. Recorder. (Sir Thomas Jenner.) Mr.
HamjHlen, you have been indicted for High
Treason, and the Indictment hath beoi leaffto
yon, and whereupon, according as tiie law dodi
re.'^uire, it hath been deman£d of you, that
you should plead to it, and thereupon yoo have
pleaded Guilty to this indictment, which ia re-
corded accordingly ; and therefore I need not
say any tiling for to let you know the htoioas-
nrss oi \\\\^ crime, for I perceive you aie aensi-
ble enough of it yourself, and I do yerily be-
lieve you have f jken a very wise and diyrasl
course lo c<mfes8 the truth, for you wart
brought hither to be tried for this crmie, in
case yf>u had pleaded Not Guilty to this indiel*
ment, which now yoo have preyented by this
your candid confession. However, it is the
fhiiy of my place to pronounce the judgmeat
that the law hath provided for such cripwe ai
thes£ are, and that is this ;
'* You must be had to the fdace fitmi irhfcr
'< you came, and from thence joq i^uft ht\
" ilmwn to the place of execution, and thoa
'< you are to be hanged by Uie neck, and whilst
<* you are alive you must be cut down, and
« your entrails be taken out, and bunii befon
<< you ; and your bead must be cut off, and
** your body riuartcred, and your head Aod year
'' quaitera to be disposed ofat the VXn^% plea*
*^ Kurc, and the Lord have mercy upon low
"soul." '^
Hampden, My lord, I hope I akall laiva.
yoiu* lordship's intercession with bis m^ir-^-
Mr. Recorder. I do not doubt, Mr. Han
but you have used the best means to i
so great a favour; and as it ia the dalT
ol* my plaa^ to give an account of this to h»
iiiajesly, so T shall truly and fliitbfoUy
sent ituith tlie advantages your '
this day huth deserved.
Ufimpdfn. I^Iy lord, I humbly he^ the
favour that my wiie may come to me witbeal
the presence of a keeper,
Mr. Recorder. 3Tr. Hampden, it ia too fata
for us to give any directions in this matter, be-
cause you asked this while the judg^
here ; but I do not doubt upon your l,
tioQ to his majesty, but you will hare all
that you can reasonably desir^, if yea plcaaali
apply younself to him for this, and fwtffaa
you shall he advised may be fitting and coAfVi
nient for }ou to beg.
His abject submission did indeed proem hfaa
a pardon ; but'the aluune of such a matt bt- '
in
ti'
ai* otfetis" 1*1 Jn|ur
id f^glaiit ^; -:'
eideni ejii*
rUHtod' pnuj
Itftf jour 80 sunk tod disKinlered hts sritrirt. tbat
lie WM iieT«r qitU« ngHt after i% and ab#i«t leu
years afkr he cat kia own iliroat.^
The tndlclttient in Latin ran ibiix :
Bex t?» H A Wl>DE«, /or H rcu-TREASON, 1 Jac* XL
MitttV $3. I>amintts Rex ni^iiidavit Jtistio'
Ctiis ad inqtiirend^ per sacraiu* probor* ac iv^i*
homm' ile Com^ Midd\ ac ali'ia tiia, mofria et
■H^iift, i|ulbus meViih nciv erint aut pottnint) de
ambmcuoq; proditiantbus, misprisiuntbus pro-
Jh»fm% mfurreetianibuff, rifbclUanibus, contra-
\ fulsis ^tlincatiombus et
[\iin regT)i AngliiE, et al*
I'U'UFTicufifiue, ac dc
ifjue, a.c Justic* suU
' ' ! ' r nsoii»r' ill
, necnon
.. .J.. ,1- ;,, jcl divers*
M»n'^ tcamgrS ct al' inalej^^eia in eodem Com*
pfir(ieUUt% audtend', et terminand^ assign \ et
Mkrurn cuUibct breve ttunm damara, in fiiec
Tcrfia : Jacobus secuodus, dei gratia, ^kc. Jas-
tic* nostril ad twjuirend* per sacramcDt' pro-
bcNMim ei legaliucD bomiu' dc Com^ Midd', ac
aiiia f iia, tnodis et meftiis^ qttibtis uif Jius sei-
^efinf fttil poterint, de ouibuscunqae prothtioni-
huf, mispnsrontbuR prf>ditioD% insurreclion', re-
bellirmVj coiitrafactur*, tonaur*, iotur', talsi^ fa-
bncationibas, et aP falsiiat* raonet' hiijus reg-oi
IIo^IIb, et aV re^nr' mfe do mini or' cjoortim*
cmtifnp, ac d<* al' nf*' -^ ' t injur' qiuba*(t:unqno»
ac Ju!*tic' ncwtris > n<>Htnmi de fSrjs^v-
gate»dc priaonar' u* - ».. .i L'ii*»teQ* deliUiMarur
•ast^fi*, necnon custod* pans iufsirtf", at Jiistic'
noatris ad divcni' r«?l«ii', Iruusj-r', «t tiV iiiiilc-
^cta iu eodem Cmu' perp(;trut\ nudirml\ et
terminand^ alai^n\ et c-orurn cudibei, satuttm.
♦ Bfimet, ml U p. 04G, tdia tis, liiat he
knew hgai evidence; urmid \tc brought ag-ainst
him, and %o iubmitted to plead Guiiiy* The
legul evidence wua, it scenic, ibe tcatiinOTjy of
lord MfM*ard confirmeii by that of lord CiVey»
(tee italph, 9i:i) ^ho had secut ' V I ' by
fmfmmxi of money and beiraym o*
fllMsB. bee mure of CJrvy in ila^ ^ <m>i^uuo,
%0i 9tPP^ 1^7» 301, 690> and iti ihe ca^e of the
duke m Mmimouiti and Buccleu^h, infra,
Conoernin^ Hauipden, ace alto vol. 9^ p« 934,
<»&4, ft ftcxi-
'* l(i8G, January. The Warrant fi>r Mr.
ilanibdeii's ereeiition was baid to he ti<^nc4l, to
be cm lh« Bth in?(tant, but he i% re pri^vcd^ i^bscb
many liiink will end in a pinion.
«^ I Bth June, Tb« aliatndor of Mr. Ilarnp-
den was rcveraedfbr Error in th*» <^mt« if King's
Bench, his ;i i him the
favourer a ^ ; urpOac.*-
NarcMmia Lutirni x.Ur*. i.uci ii>>torir«i Bslft-'
tNOf ^e. in All SouU Lib* ury . if e w%m pnui-
won to tb« HaAipdien who i-estiitted thi! kvy of
ship mtmej* iAat vol. d^ p« U.^5. Al the pe-
riod of tbe RendBtJoii he wta a iri*ry actnc
r 9i^bm OMtcfltion FtrUaBif nu
1
D. 1685.
Volen* certls de causia record* con ftction^ Jo-
hanniH Hampden, Cien\ pro qiiibitsflam altia
prodifioiiibiiH unde coram imbis indictat* est, n
snneiiudc lOuviiV extilit« ut dicitiir, coram
oolniii pt'i ¥09 tnitti^ vobis et euihl»et ^cvtrum
aiandiLmus, quod lecord* prfcd\ cnin omnibua
iilud itiugt*ud\ adeo plene ct integre pnrnt
coram verbis jam rc^del^ quocunque mmiine
idem Johannes nuticupetur in efKfern, coram
nobis iinb ^i^iir veettris^ aut unlus vcstrutn, a
die Pai^chte in quindeeim diets ubictinque tune
fuerinius in Ar)gl* mitlat*, sen onus ve^riirn
roittAii, uua cutn hoc breri, ut ull* inde fieri fue\
quod de jure ac ^secundum legem ct eonsuelud'
reg:ni noslri AngHce fore videritnos (*adend\
T, E. Herbert, ftliP, &c. Per Cur' Asrar.
Uufd qtiidem brere et record* in eotlem
brcvi menttonat'i relornat/ Lt certificat* iiiir,
pront fteqiiitur i ss, Virtule istius brevis» mihi
et al* dirfc"ci!«\ record' conviction' infra nominat'
Jobau' Hnm[Kl<>n, Gen\ unfle in isto breri fit
mentio, cum omuibnsv ca tan4;eu\ coram Dom*
liege hurc brevi annex*, roitto prout interiut
Dr^cipitur: Hespons* Robcrti Jeffere^'H, Wtl\
Major' civit^ London*, ac nn* Juatic* infra^
script, ' i^Hdd' ss. Mcmorand'quod, ad tsesaion*
Oj^'tr et Terminer Doin^ Regis, tent' pro Com*
5Jidd' apud llicks's Holl, in St John*8-Strcet,
in Cora* prfed', die XjUDa^^scil^ 7.die8pptemh'^
anno j-eeni Dom' nostri Jacobi secundi, Dei
^rutia, See. primo, coram W, Smith, Bar', J.
Berr^, Mir, t^t al' sociiaftiis, Justic' dicti Dom'
Regis, per litems paien' ip?(iu8 Dom' Kegti
ersdeni JuMic' pnenuintitat') ac qiiibti^cunqne
qtitttuor v\i\ pluhbns eor' sub mag^o srgillo
dicti Dom' Reg^ts Anglia»conftrct', adiiiquirend'
pir«iicrttu«eni* prubifr' et lei^aliiim bomin'Com*
3lidd' pretd', ac omnibus ni* viis, mtnlis et
niediix, qui bus melius scireriut attt poterint,
tam mfra Jibertat' quam ejctra, jier quos rei
Veritas melius scir' poterit, etinquiri du quibns-
dam prodaion^ mi.<onflioti' prodition', insurrec-
tiontbu*;, relielliODtuus, contrafactur', tonsiir%
lotur', faUis fabricattonihus, et al' falsitat'
nionei' liujus regni Anufliee^ct al' rrgnor' sire
dominior^ quoiumctinque, uc de qtiibu^cimqua
niui'dris,feion\ homicid\ in r ^ n', burglar*,
raptibu^ muliiTum, con;^ iw et con-
veuticur illicit', verbor' ptuiaiituiiLjtJs et cciad-
unationihuSf mu^^prisionibus, confederatiunibus
talsis, alleganc', transgr', not', rout*, rf trntioni*
bus, t'KCupiis^ contempt', oppressionibiis, uc de
al' articuli» et oflttis' in eisdem litrris |Hiten'
dicti Dom' Ri- at\ necnon a ccessar*
eomndeJn, infi.^ tiLd', tarn infra liber*
tat' quam extra, pet' quoscunque et qualiter-
cunque habit', fact', ptnpetrai', aire commisa%
ac de nV nrticulis et circiimatantiis pnemiss' ei
ror* alif}uo vel alii' qualiterctmqne concernen'
pkniuf veritat', etnd rasdem prodiutmes et al*
priemi»H' andicnd' ctlerniinand', second' legvm
H consiK'tiitP biniis reg^ni Anglioe, av>ai|t*»'i ffmt
aacn&mem' W. Wood, Ar' ct 14*1* pnilHir* H
legalium h—^vn' fv—' -?'Tpd\ adtnnc rt tbidem
jurat' etiii 'id' pro dicto Doinuio
liqre rt c^; j ,. ^- . .;; , - a:d\ pnncutot* c:^tii1it,
iiio9o fl furoka aeqacB^ wci\\ Midd' u, Juf '
4871 1 JAMEJS n.
pro Domino Recife 8U|)er sacrament' sauni pnc-
sentant, quod Johannes HumfMlen, nuper dc
paroch^ sancti i£i>idii iDcaropisinCom'Midd',
Gen', ut tklKus proditur' coiitra illiistrissimum
et cx(!i.'llentis<iiiium pimcippm Dom' Carolum
Trial of John Hampden f
[488
statuti in liujusmodi casa edii' et provis', ^.
Per quod prKcept' est Vic* com' Midd', qaod
non omittcret, &c. quin raperet eum ad ro-
8|>ondend', ^cc. Ac quod ad deliberatiun* goal'
dicti Dom' llcgis de Newgate tent' pro oom'
derans, sod instigratione diabolica mot' ct se- ; Jaicobi sc(*undi nunc Uegis Anglie, &ic, primo
n, debitam | suprad', coram llobcrto Jeflfereys Mil*, Major'
duct\ cnnliaiem ddiTtiun', ct vcram,
et natuialcm ol>rdienc' quas venisi et f^del' sub-
dit' difti nuper Dom' Rejfis crffa ipsum nuper
Dom' llesfem gi'reiet, cl de jure (i^rere tene-
batur, penitus subtrnliens, ct machinan'^, prac-
ticaus, et totis virib' suis intcndcns paccm et
^<%._^..._^ J :ii:.->s t_ -• • « i?_
civit' Loudon', Edwardo Herbert, Md' Capiul
Jusiic' dicti Dom' Re«>i8, ad placita coram ipso
Rege leneud' assijorn', ct al' sociis suis Jus-
tic' dicti Dom' Rej^is ad gaolam suam de
Ncn'iuifate <lc prisouar' in eadera existen' ddi-
comnmncni trunquiUitat' hnjus regui Anfiflias i berand' asKififn', ista gaolt^ delibcratio adjornal'
inquictarc, molcsture, et pcrturbare, et guerram ' fait per pruciat* J ustic dicti Dom' Regis, ult'
et rcbidlion' contra dictum nuper Dom' Retj^em j oommat^ hie usque diem crastin', diem Jovis,
infra hoc re^jfiuin) Angliip suscitare, moTcre, et i scil', 10 diem ejusdem mensis Decembr'v anno
prociuart', et gulieroation' dicti nuper Dom' | primo suprad', ad horam septimam aate meri-
Regis hujns re^ni sui Anglisc subvertere, mu- { diem ejusdem diet, a pud Justice- hall pned' te-
tare, el altcraro,;t dictum nuper Dom' Re<(em a i ' "
titulo, honoro, et re^ali nomine, et corona impe
ncnd' coram priefat' Justic' dicti Dom' Kei(isiiit'
nominat', ad faciend' uiterius prout cur' ibidem
considei-aret, &c. Et super eundeni diein Joris
10 diem rjusdcm mensis Decembr,' anno primo
suprad', ista gaol' deliberatio tent' fait p4T ad-
jorn* pncd' pro com' pr»l', apud Justic' Hall
prapd', coram pncfal' Justic' dicti Dom' Regis
ult' nominat', ac adtunc et ibidem prasd' gm'
deliberatio dicti- Dom' Regis uiterius adjoniatf
fuit per prasfat* Justic' dicti liomini Rwi
ult' nominat' ibidem usque diem crastin^,
riali regni sui Anjs^liee deponere et <lcprivare, et
dictum unpcr Dom' Ue$rem ad mortem ct finar
destruction' ndducero ft ponerc, 20 die Julii,
anno ic«;ui dicti Dom' Carol i sccuodi, nuper
Renris Anglia;, 35 ct divers' al' diebus et vicibus,
tarn antca quam postoa, apud paroch' sancti
jEgidii in campus in Com* Midd', falso, ma-
liciose, diahoiice, et prwlitoric, cum divers' al'
fklsis reberlibus et proditoribus jur' pi-apd' iguol',
conspiravit, compassavit, ima^inat' fuit, et
intendebat dictum nuper Domnmm Urgom,
tunc supremum et naturalem Dom* suum, non
solum de rej^^li statu, titulo, potestat', et re-
gimine regni sui Anglis deprivare, et dojiccre,
vcrimi etiam eundcm nuper Dom' Regcm in-
ter ficere, et ad mortem adduccre et ponere, et
antiquam gubeniation' hujus recfui Ann^fliflB
mutare, alterare, et penitus subvertere, et stra-
gem miserabil' inter subdii' dicti iiupcr Dom'
Regis per totum rcirnum suuni Anj^^lice
causare et procurare, et insuviTCtitm et re-
bellion contra dictum nuper Dom' Regcm
infra hoc regn' Angiiap procurare et auxil-
iari ; et ad casdem n(.M|uissiiuns, nefnndis-
simHR, et diah(dicas prodition' et proditor*
com|)assation', imagination*, et proposita sua
pnedict' perimplend*, perticiend*, et ad eflectum
reditjfend', idem Jolmnuis Hampden, ut falsus
proditor tunc et ibidem, scil', dicto 20 die Julii,
anno re-jfoi dicii nuper Dom' Regis 35 supra-
diet*, et divers' al' diebus et vicibus, tam antea
quam postoa, apud parocbiam sancti /Egidii in
campis pnul' in dicto com' Midd', false, il-
licite, nequissime, diabolice, et proditerie, cum
Jacobo nuper duce Monmouth, ct divers' al'
falsis pro<littH' jur' prnsd' ignot', se assemblabat,
coiigregakit, consultaltat^ et consentiebat ad
8us«*itaud' ot prorurand' divers' niagn' denar'
fiumm' et ingent* uumernm homin' armat', ad ^ , ,
guorrnm et reU llion' contra dictum nu[)er Do- meridiem ejusdem' dici, apud Justio'
minuin Regem infra hoc regn' proditoric ! pnctl', tenend' coram prafat' Joatioet Adi
Dom' Regis ult' nominat', ad faciend' all'
prout cur' ibidem coiisideraret, &c. Am l^
eundem diem Mcrcur', dO "
diem Veneris, scil', 11 diem ejusdem
Decembr', anno primo suprad', ad boram
septiiiiam ante meridiem ejusdem diei,
apud Justice Hall proed' tenend', ad &•
ciend' uiterius prout cur' ibidem considerareC,
&c. Acad eundem diem Veneris 11 diem
ejusdem mensis Decembr', anno primo aaprad',
deliberatio istius gaolsc tent' fuit jier adjoni*
prtedict' pro com' pned', apud Justice HaH
prxd' coram pr«f fat' Justic' dicti Dom' R^gii
ult' nominat', ac adtunc et ibidem pned' delilie-
ratio goal* dicti Dom' Regis uiterius adjomal'
fuit perprxliit* Justic' dicti Dom' Regis vV
nommat' hie usque diiMU 8abbati, scil', 19 diem
ejusdem mensis Decembr', anno primo su|)rad'f
ad htirani septimam ante meridiem eyuaden
diei, apud Justice Hall preed' tenend' eonB
priefat' Justic' dicti Dom' Regis nunc ohf
nominal', ad faciend' uiterius prout cur* ifc
consideraret, iScc; Ac ad eundem diem Si
19 diem ejusdem mensis Decembr', annoi
suprad', deliberatio istius gaol' tent' fuit per
adjorn' pited' pro com' pned' apud JnMiee
Hall pned', coram' pnefat', Justic' dicli Daia^
Regis ult' nominat', ac adtunc et ibiden) pnedf
deliberatio gaoloe dicti Dom' Regis ultenus ad*
jornat' fuit per pra;iat' Justic' dicti Doni^
Reffis ult' nominat', hie usque diem Mereor^,
scil, 30 diem ejusilem, mensis DecenhP^
anno primo suprad', ad horam septimam
kf and' et faciend', contra debit' ' ligeauc'
tna, et oootra pacero dicti Dom' Regis nunc,
0>^ ' ^ dignitat* Mias necnon contra formam
.489]
fur High Treason.
A. D. 1685.
[490'
tnensis D^cembr* anno prim osupraiP, Justice
HaJI prcti*, curarn preeiat' Justic' cjicii D<»m*
Hci;is uh' Hominat*, el ad euudmi dietii
Blercur* SO dietn t*ju!sdera mensis llecembr*
anno su|>iail\ ad dictum deliberation* gaolic
dicti Dom* Itegts adtuuc lent* per adjor*
nmnt-nt' pra;d' pro corn* prtcd', apud Jusliffi
Hall pra;d\ curam prtefat' Jtisuc' dicti DonV
Regis uk* imiiiiimi', pra\tat* Justie' dicii
Doin* Reg\% per dictas literas patfu* ipuius
Dorii' Keg-is, sul> Fiiagfno sigill* AiJi^l\ ul piac-
fertur conft?et*, per inamis suas |iii*pr* deli*
l*eraver' iudictatnenl* pracl* liic in cur* de re-
cord\ ill forma juris terminaiur, tScc* Ac su-
pcrimle ad istain candcm iltliberat' traol' dicti
liom* R*^is de Newj^ale leiil' ptT adjorn' prufd*,
pro com* prwd^ apnd Justice Hajl pm* d', praed*
die Mercur' 30 die ejusdem mensis Uewnabr*
anoo primo »i»prad\ coram pi-sefiit' Juslic* dit-ti
Dom'Rcg^is,ad prfpil'gTjidam ipsius Dom' Re^\s
die New gate piiLMl*, de prisonar' in eaileui existjn*
delibcrand* assign '^ ven* prwMi' Johannesi Hamp-
den sub ciistutl* Jlen^amio* Thi^rowg'nod, et
T. Kmsey, Mil' Vic* Com* Mid' pn^d' in
enjus ctistod* ex causa pr*d' prwaniea com-
miss' fuit, ad barr* bic dtict' in propr* perstma
sua, qiiicommilliuir prajfat' Vic\'^e. Et sia-
tim deprsmiss* in iiidictamenl' prsd' specitical'
«i superius impctsit', allocut' ijualit^ &€ vrdit
intli ri, idttn Jolianoes Humpden die
qii' ,1 piitesi dedicere, qmu ipse est
cuJpai u UL- alta proiliiiune pr«?d* in indicta-
meot^ prfed^ sj*ec* e\ siipcnus iitiptisit' inodo ct
forma proiit p<T indrotament^ pritd' stipt-ritis
versus eum jJAippiiniiurf n aituiii prodition*
priEd' in indictam«;iit* pned* expri^siie coj^novit :
Ei statim ipjcpait' est dv prrurhi* Jubaune
Hampden, si quid pn> se baWut, vtrl dicere
sctat, quare cur* hiu ad jadic* et execution* de
eo super convi^tiim* »;uam prseir ci co<j;itittun*
suam propr' aUa? proditionis prn;d* indictament'
pracd* sijperiuf: sjwc* procedure non debeat,
qui iiilul ultcriitjj die* prteterquaiu ut prius
tlixcrat, super quo vis*, et p<^r *mh ' hie lutel-
lecfts omndnis etsins^uLis praemi&s' cons* esi [>er
cur* bic, qurnl pranl' Jobncmes Hampden du-
catur ad ipu^V dicii Df>ni* Hegis de NtfWg^te
unde fen' et ibidem sw^r traham ponatur, el
abmde ad locum execution* trabatur, et ibid4 tn
ficr col I urn suum $iusp<?ndaiur, et vrve:i>^ .id
•«T*prosterij«<ur, et quod secieta tueuibni sim
amputenlur, rl iutifrtora extra ventrem »uum
capiaiitur, et in i^nein (i^iu.iiitiir, et ibidem
condiurentur, et qumS caput eym aiiiput4.'tur,
quodque corpns ejus ni quatnor paries divitlatur,
ei quud r^put et quarleria Kua ponaniur ubi
X>amiiiU8 ilev ea nssijfV loluei ii : Et m^do,
«cU* die Mercur' prox' post quiu^len* Pascbie
tsto codem termiNO, eoram Do i«' Ke<^e apod
We!itm* ten' pranl* dtditmueK Hampden, juxta
formam reciig^nition* per ipsim) et pleg' sous in
hac paite priu:^ cognitMn prupr* ^^rtioiia t^ua,
qui conviijiiitiir Mar, ^c. et adtunc et ibidem
per cur* ilicli D^m* Regis hie quxsit* e«l de
eodeiii Joliaime Hampden, si quid pro !%e
habeat' vel dicere sciat, quare cur* hie ad ex-
#Cutioa, au^ier judic* prsed' in forma pncd'
redfUi* proccderc non delieat, qui statim dic^ j
qiicwl dicUis Llominas Rex nunc, ex gra* sua.,
speciali, ac ex ceria scieuc* el mero motu suis,
per suas literas paten' sub magiio si'^^dlo suo
Afig^liii\ geren' dat' apud Weslm' J 9 die Febr*,
anno reg-ni dicti Doiii* Regis nuuc secatido^
paidonavit, renusir, rtdaxatitac per pi^.9enles
pru se, h;creihbu.'i, et sueces94»iibus snis, par-
donav it, reiuisii el relaxavit Jc^bauui Hampden
iTupei' de paroeb* saucii ;E^idii carapis in com'
Midd\ Gen* seu quocunque al' nomii»e vel \
eoi^nitione, seu Edition' nominis rel cognitionis '
aut loci^ id"m J« sdatiir, ceubcaiur, Voceinr^
five nunciipetur, aut nu[ver scieljatur, cense- ,
batur, vocabalur, sive nuucujmbutur, ornu* H ]
omnimmi' proditiones, uiispii^ion* prodiiion*^
trans yr*, nialetacta, crimina, et otftns* quiE-
cuoque, per »e solum, sive cum aliqua al*
person* vel aliquiUis al* person* contra dictum
Uom* Regem, vel pnecharissiumm f'ratrem
suum, Caruliui secund' nuper Re^em Anelira*,
Ace. defunct* ante ^5 diem Januar* u!t*, quan-
ilocunque, qualilercunque, sen ubjoun(|ue tact% 1
commissi*, fiive perpttral% licet idem J. H. de i
prieraisR*, vel aiiquo pranniss* iudiclar, arrestat'* i
appellal', rectal* im|ieiit\ aumct*, convicl*, coo-
deuqmat', utbi^-iir*, sive adjudicat'existit, vel uon
existit, aut inde indictari, arrestari, appellari^
rectari, jmpeliri. atiiujjfi, convinci^ utlag-ari^con-
dempnari, si?e arljudicari, connjjerit m fuUiro,
ac omnia «l sin if id a imlii'tatiient*, judicia, con-
demi»iiaiioncs atlinctur** execunones, fine*j» im--
[trisonrtmeii*^ puuttiou*, poinaji mortis, pceuas
corporal', et omu' al* p*fcu* et pQenalitnr quie*
cuuque super vel veruns pr*d' Johannem H.
de, pro, sive concernen* pnemiss* scu cor*
abquo habeal' fact', reddil*, sive adjudical', aut
io postcruui habend*, Hend*, reddend*, sive ad-
judicand*, necnon onuiia cl siug-ula utb^v^ar*
temus djct* J. H. raii«nc sive occa^ionc pne^-
miss', scu eor* aliquor* vel alicujus €or* pro-
mulgai*, sive in posterum promulgand', ati*
omnia et onmimod' seel*, querel*, fines, foris-
lactur*, impitiiiones, seitur&s, process*, et dc-^
mand' qiittjounque, qua dictus Dominus itex
versus* insum ratiijue prsemiss*, seu e<n'* alict^us
baUuit, babt't, seu in fuluro habere poterit, aut
h«retr el successor* ejus ullo modii habere pu-
terinl in fuiunr, seetamque paeis sua;, qu^ad
did* Dom' Re^em ?ersus pnefat* J, H. per-
tinent seu perlinere poterit, rationc preemiss*,
seu oor* aliquot vel ahcujus eur*, cl firuiam
pacem suam ci inde dedit et coucess* per pr^e-
seoles : Et idem J. H. protert hie in cur' literaji
pateir* pned* pi te miss' testificant', in lla^c
verlia : Jacobus secundus, Dei gra* ikc. om-
nibus ad quos pr.esentcs litcra? noslrje perre-
nerinl, salutem. Sciads quod nos de g^ra*
nostra speciar, ac ex oerta scienc' et mcro
motu noslri* pardonavimiis, reroisimus, et re-
taxaviums, ac per pra^&enles pro nobis, h^red',
et successor* nostris pardtmamus, remitlimus,
et relaxamus J. H. de paroch', <V:c. Cum*, geu
qaocuuq; aP nomine vet copiilioneseu additione
nominis, vel co^niti«jne,aut b>ci idem J . sciatur^
censeatur, vocetttr, sive nuncu|»elur, aut ouper
sciebalur, censebatur, rocabatur, Tcl tiuncupa-
111
491] IJAMES II.
Wtor, onm' et einniinod' proditiob', mitprision'
prvdition', tr&fi«gr\ mtlei'acta, crimina, et of-
teos' queecunque per se solum, sire com aliqua
9lV penooa, ?el aUquibus pV peraonis coutra
DOS Tel prceharissttnam fratrem noetram Ca-
rolum secuod' nuper llegem Ad^Us, &c. de-
funct', ante 35 diem* Januar' jam alt] elaps',
quandoounque, qualitercuoque seu ubicuDqoe
taci't commiwS sire perpetrat', licet idem J. H,
de praemiss' velaliquo premiss' indictat',arreB-
tat', appdiat', rectat', impetit\ attiDCt'. convict,*
condeaipnat', utlagat', aiveMyudicat'exi8tit,Tel
i)OD existit, aut in^iudictari, aiTe8tari,appellari
rcctari, lmpedri9attiD^,coDyiuci, utla^i, con-
deinimari, sire adjudicari, coqtigfent in i'uturo,
ao omnia et singula indictament*, judic', con-
dem^nationes, attinctur*, executiones, fines,
imprisonament', ponitiou', poenas mortis,
iisinas corporal*, el omnia al' pcenaa et poena-
itai' qnaecunqae super Tel Tersus prced' J. H.
de, pre, sive concemen* premiss' seu eor*
aliquo habit', fact', reddit', sive adjudicat*, aut
in posterum liabend', fiend', reddend', sive ad-
judicand', necnon omnia et singrula utlagar'
▼ersus did' J.H. ratione sive occasioue pree-
miss* sen eor' atiquor* vel aliccgus eor' pro-
mulgal' sive in posterum proinulg^and' ac omn'
et omiiimod' sect', quei-el', tines, forisfactur',
impetitiones, censuras, process' et demand' qua-
cunq; quK nos versusipsum ratione prsmiss*, seu
eor' alicujus habuimus, halicmus seu in future
sectamq; pacisnostre, qus ad nos versus prse&t*
J.H. pertmetseu pertinere poterit ratione pre-
naiss' seu eor' aliquor*, vel alicujus cor' firinam
pacem nostram ei mde damns et concedimus per
prssentes, nolentesquod idem J. H. per vice-
corn', justiciar', ballivos, aut al' ministros,
bcred' seu successor* nostror' occssione pnc-
miss' seu eor' alicujus molcstetur,occasionetur,
perturbetur, seu in a]i(|uo gravetur, volentes
quodq; bse literoe nostite paten' (quoad omnia
et singula presmiss' su|ierius mentionat') b<m',
firm', valid' et effectual' in lege sint et erint,
licet crim' et offens' prted' minus ceite specifi-
cat' exist' : (iluodque hcec pardonatio nostra in
omnibus curiis nostris et alibi intcrpretetur et
adjudicetur in bencficcntissinio scnsii pro
firmior' reluxatione, panlunatioiie, et exonera-
tionelpned' J. H. ac etiain placitetur et alloce-
tur in omnibus cur' nostris, absque aliquo brevi
de allocatione in ea parte prius obteut' seu obti-
nend', non obstante aliquo defrctu ant aliquibire
defectibus in his literis patcntibus content', aut
aliquo statut', act', ordinaiionc, seu provisionc,
preclamntione, sive restriction', aut aliqua al' re,
causa, vel materia quacuiiq; in contrar' inde in
aliquo non obstante. In cujus rei tcstimon' has
literas nostras fieri fccimus pateiites. T. mcipso
apud Westm', 19 die Feb' anno regni n66tri
secundo. Quar* quidem iiterar' paten' proe-
tcxtu idem J. H. pet' quod i|»se dc premiss' per
cur' hie exoaeretur. Huper quo vis' et per
cur' hie intellectis omnibus et singulis prcnuss'
oons' est, quod pred' J. H . eat indcsine die, 5ec.
£tpo8tea, scil', die Lunspprox' postcrastin' As
oensioo' I>om', isto eudem term', coram Dom'
Xtg9 apud Wcstm' ftn' pned' J. m propr* per-
Tritd ofJchii Hampden^
[499
sonm sua, et profert hie in cut' quadililii br«ve
Dom' Ke^s nunc "Hansumi Justice ■«■ hio
direct', qui sequitnr in ^jeec verba : Jmoohns tt-
^ndus, &c. Justio' nostris ad placitfl coram
nob' tenend' assi|rn*, talntem. Quia in record*
et process', ac etmm in iwdditione jndic' cujns-
dam indictament' coram Jostic* nottria ad
gaolam nostram de Newgate de praeiiar' id
eadcm existen' deliberand' assign', Tersus J. H.
de paroch', &c. in com' Midd , Gen', pro ahii
proditioiiibus contra person' Dom* Ckroli s*^
cnndi nup' Regis Anijliee, fratrisnoetriprvche-
rissiini, uiide coram eis nup* attinct' fuit, ul di-
citur, error interven' nianii'est', ad grave dampn*
ipsius Johaunis, sicut ex ^erde som aeee^*
mus: Nos error' si quis foerit, modo defarta
corrigi, et eidem Johanni pleneui ct'celewm
Justic' fieri voientes in hac r*-*- — *^ — j--
mus, quod si judic' inde reddit* «t, Ume \
examinat' record' et process* praad*, ^ms
nob' certis de eausis Venire fedmoe, cl <
vobis jam resident, ut dicitur^* ulteriiis inde prt
errore ill' corrigend' fieri fiiciatis, ^piod dc jne
et secund' legem et consuetod* reni Jlngf
fuerit fadend'. Test' meipso apud Weetm* 14
die Maii, anno regni bostri seemid*. St snp^
hoc idem J. H. dic^, quod in record^ et praoos*
prsed', nectton in redditione jndicii sttioGtw*
prod' manifest* est errat' in hoe riddicet, quod
ubi per indictament' prasd' mentiointDr qind
deliberatio gaol« in recordo jndicii, et •ttintetiii'
praed' mentionat', tent* fuit pro oom' Blidd*
apud Justice Hall in le Old Baily, in aiilnirbiis
civit' London', non apparet per record* pned'
quod J^istice Hall, nee le (Nd Bailj, eantm
com' Midd', ideo in eo manitei' eat enat'i
£rratum est etiam in hoc, videlioety qued ia-
dictamentnm pned' mentionator ibre capt' f
die Decemb' in record' pned' mentioiiat', ooran
Justic' de audiend' et termiuand' in Neorda
pned' mentionat', et per e<is fore deliberand'
Justic' ad goal' deliberation' in eodem rMerds
specificat', 30 die Decembr' tone poelea ■■
i'orma juris terminand', scd non apparet per le-
cord' convictionis prsed', quod sesaio de andicndf
€t terminand* habuit aliquod adjomaoiCDt' vd
continuation' usque dictum SO diem Deeeiiibr\
ideo in co manifest' est errat'. Erratum art
etiain in hoc, quod verba vi et armis, &c. tad^
tuntur in indictament' preed', ideo in co ■nei*
fest est errat'. Errat' est etiam in boCy tail
constat per record' prsed', quod proccaa* tf
judic' prsed' sunt intrat' et recordat' aup' ie»
cord' Justiciar' de audiend' et termioaDd't d
non super record' Justic' goal' deliberand*, idei
in eo manifest' est errat'. Errat' eat M'
hoc, videl', quod non apparet per record*
per qualcm authoritat' Justic' ad gaol* de
tion' in record' pned' mentionat', proow' il
judic' pned' reddider' versus ipsum pried' J. B«
sup' indictament' pned', ideo in eo i
est errat'. Errat' est etiam in hoc* \
redditiou' judic' in record' pned' ment'
apparet quia fuit, qui ex pirte Dom* ]
eodem Dom' Rege pet' judic' sop* "
de materiis in indictement' pned ^
ideo in co maBifesi' est erFtt'.
49S] >r High Treason.
etiAiu in hM, quod in focord* pned* dicitur, q,u»«l
nd i)elibef«tion* ^oV Vkim* iLcgis de NcfWf^ale,
lent' tiro com* ilM* npud Jii»tire Hall ra 1e
Old ikiily in Buburbiis ei^l' Ltnulon' die
M4!rcur\ »dr, 9 die Dtcenibr* eoram Jtistic*
g«M* delibpration* in eod^soi recor^t' iiirntiiaiftt*^
oood Uu ifftor deliberntio adjoru* fuit per piic-
tal' Jiisttc\ ubi diet dehuit adjomat* eftl, el ncm
^■Mrimi ?m reeiutionis m tempore pn£lerit\ i^l
IfPftlio loco rcconl* mentionar pried' dicilur,
i|aod istfi (?ftol* delibcraUa lent* fV*il, n\n debuil
expntni tent' euU ct nan fjiiiHl tent' fuit, quiii
in tPflHti -ill I :,-;:,,.,,. '':,i'.. : , ,'
fulforiicii
til ^AOui' tivrikt'iTHtH'ti (if (Jt'if'i niiMjiituij in-
ditftametit' PhlhI*, tdcoin co manifest' ent errat\
Erratum Wit etiam in lior, vidtr, juilic^ pned'
f«<l<lil* est pro Di»uiino liej?c» ubt r<»ddi del»^t
Cro defaid\ et in fo manifest* est errAl*. FA
oc panii' rst Terificare, iindc pel* judlt*' et f]iiod
jiMlic* el ftitiiictttr* prasd* oh error' pntd*, cl al*
til record* el process' pned' appareu* coaipi^rl*
rxtsten* revoccturt aonullelur, et neiittn*) pro
rniUo b&bealiir, et quod ipse idem J. 11. ndcom-
inutK'tii et liberatn )e|;^m htijus repii An^tite,
H Ad omnia qnm ipee oeeiiiiotie judioii et atlinc-
A. D. 1685,
tor* prwd* ami«it restttuaturf et ouod Ipse, tarn
de eadem convietione et attinctur\ ipaam de 1*^-
dictamenl* prted' per car* bic dimittntttr et <
otteretur, ex qtiod cur* hic procedat ad exj
nation* record' et process prusd*, -^c. et
Tieccssar* et expedieiw est, anleqiiam cor' liiJ
in hac pmie procedat, qitod teoeittea lerrar*
teoementor*, ques fuer* pro^d' Jobantils 120 d
Jiilit, anno regni diet' Dotn' Oaroli secuud]^]
nop' Uefiris An^li«» ^c, 5i*. quo die ftt;a proi- J
dilm prtf d* fieri siippiniitur, vi4 tinqiiam po»t«
pficmiiniantur cssendi, coram diet* Doin
'' !itur* record* pn>06S« nned*,
|it est vie* eon* Midd* line
qTiiKJ ^iLT [iiui>oaet legates bomines deDaYti^
sua, 8cir* fac* seitanitim tencnl' terrar\
tenctnentor't qu® iuer* pnetl" Johnnni'* pne-^l
diet' 30 die JuUi, anno reg^ui dicti Dom' CaroM
second i n»iT»pr R*^*fW An^Uce, !kc. 35 suprady^
Tel wnquiii qooci siiit coram Don
Ke^ in f r . i • V Tri nilat* ubiouuqu ©, &
auditor* record' el procea** prted*, si, &o, id
dies dat* eat pnefat* J. Hampden, &c. et sup
hoc de gratia cur* spetiial* ppa&d* J. H, tradiltifJ
in hnll* ft. A* de, ^o. Arm' et W. J, de, licdf
U3ique ad prtiefHtum terraiqiim, et itic, he.
336. Proceedings against Rjchabd Baxter, Clerk, for a scditioui
Libel, at Guildhall, before Lord Chief Justice Jeffreys
^m 1 Jamks II. A. D. 16S5, [Taken by the Prisoner's Ffiendi
^H| Calamy's Life of Baxter, Tremaines Pleas of the Crown.]
THE INDICTMENT.
Hex T€ruit Baiti.r.
Po^b. 1 JtioohiSecuitdi. llot« 95.
Lifmdom, tt^ (y UOD Ricluirduft Hatter, nn>
ifIi* X'/i f Mr'i^f'114 /iTivJjTiiis: lii-^r.rin' KCdltio^
ta?»lor-
iitaolu-
natt«, p odeiift, qunutiiiii in ip^^o
fait, iKM ^ ft comnmnem tnmqnth
tilat* did' Dom- llegis inlia boo retruttm
Anirr inquiHari% molc'rtni'e et ptTlurbni>", ac
ii^ionem dijuuird* et lo-dri-oU-nr inV U>£vi^i el
HiMm Jsubdir diH* Dorn* Uei^^s \nnvtH J*'tu-
tiir« ct ' i»i, piu»i»
licfitaiiv '•«* in trail
U. B
der#| i}uo#i^ pd
Ifiitidixiiiiiafi it flivbolicaii \n'
nm, ne-
I IS pred*
fir <i«fid' et ail eftt^ci' rt_^ditf*stid*
11 1 re^i diet* Dom' Jar<jbi 8e-
CM vi ct anniHf ^c. (al»o, dlicite^
bj , ictioJM%»cditio«e, clirreligioie
fcicu, 4:oiu|MM*uU| ttcrijf>ii, lmpni]8tlet{i«iUicairit,
et 5eri, compofii, soribi, imprimi et public
cuusavti, quuudam IkUum, scditioMim bbello
suoK ^ ' 3e in^eltgiosum librum intitula
* A 1 fin the Testament wiih No
t dcitLtii».ii Mi practical;* la quo quid cm fall
scditioso, lib' llfiso faciioso & irr€liijii**o libfi
iut' al' contctil* fuer' b» C$}ssq^ ^Uo»iB«
tii»9tti, acandiittrsn et fieditioss adRtei^lwB
cicdem Pr«lat* fipiacopis, aliiai); Oeriois Ed
tlriixB bujus regu* in lili Anglican* wmihA
aequcii*, tidert, * Note, Arc iM)t these Pre
* era and PrrUiL*J (Epo's ahoiq; Ckrico
prasd* Kr-cW*!!* Itujux regti' Ang^l* innueDdl
^ ibcu thi; lejiHt and barest lb at preach aoa
^ tread down Cbristiao Kwi' of all that disaent
* from any of ibrir p/ i?j, aiw! so
* pieaeb down not ibeleu- -real com*
* mand ?' Et ult* idem \^\>^r\k diet* Doin*^
lUgis nunc ^^enrral* pro eodem Dom* H^VT*
'''*<*ur*bie inteUigi ct i; *•--"■ t]uod in ul*
in pM' fttiao, acatidi)1 >o A; irre-
..^, .i.t) libro, ini' al^eoni^iu ... . iac al* fkism
libellofx, Mrnndutosoe, aeditiosje et irrdiffiOMt
aeritent* gntinn' «1o ricrieis Eccteviic buius
regii*, vtil U 1% ioWy to doubt vtne*
♦tbertbtM^ , wbile d>ml« incarnate lite ^
* btTC ainutitt^t us/ (ClericoD ptied^ ||«JU
rcgnt Ati^r iuouciido) * WlmleUe but de*il
* aui'^i eauld titake cer«moiuatia hypocrites'
495]
1 JAMES II.
Proceedingi against Richard Baxter,
[496
(Clericos pred' imiueiido) < codsqU wHIi poKtic
« ro}ra1i8t8' (ligfeos et fidel* subdit' diet' Dom'
Regis hujus regfni Aogl* innuendo) ' to destroy
* the Son of Gml for saving men's health and
« lives by miracle ? Quere, whether if this
* withered hand had been their own, tbev would
* have plotted to kill him, that would have
* cured them by a miracle, as a Sabbath-
* breaker? And whether tlieir successors'
(Prelai', Episcopos, aliosq; Clericos Eccle-
sife hujus regni Angl' qui dcinceps fuerint
innuendo) ' would silence and imprison Godly
* ministers' (scipsum R. B. et al' factiosas et
scditiosas p*bon' iafra hoc regn' Angl' contra
leges hujus regni ac Litnrg* EcclcKiie infra
hoc reg' stabilii' p'dican' innuendo) < if tiiey
* could cure them of all their sicknesses, and
* help them to preferment, and give them mo-
* ney to feed their lusts ?' £t uli' item Attorn'
diet' Doni' Regis nunc general' pro eodem
Dom' rege dat Cur' hie iutelU<>i et informari,
3uod in ai' loco in pred' false, libelkiso, scan-
aloso e\ irreligioso libro inter al' content' fuer'
ba al' falsie, libellosoe, scandaloste, seditiosse et
irreligioss AnQ:Ucan' sentent' sequen' de et
concernen' Ep'is p'd et MinUtris Justitieehnjus
re^n' Augl', videl't, Note, * Men that preach in
^ Christ's name' (seipsum R. B. et al' factiosas
€t seditiosas p'son inlira hoc regn' Angl' contra
leges hujus regn' Angl' et Litnrg' Ecclesfie
hujus regn' per legem stabilit' pred' innuendo,)
* therefore are not to be silenced, though faulty,
* if they (pred' male dispo'it' factiosas et sedi-
liosas p'son' pred' itenim innuendo,) ' do more
* goo<1 than harm ; dreadful then is the case
* of them' (Episcopos et Ministms Justitise
infra hoc regn' Angl' innuendo) * that silence
* Christ's faithful ministers* (seipsum R. B.
etal' seditiosas et fnctiosas person' preil' innu-
endo.) Et ulterius idem Attorn' diet' Dom'
Regis nunc general' pro eodeni 'Dom' Rege
dat Cur' hie intelligi et informari, quod ad ex-
citand' popuV hujus regn' Angl' in illicit' Con-
▼enticui' convenire, et defamand' Jimil' hujus
regn' impuniendo illicit' ConventicuL', in -al'
Joco in pred' faUo, scandaloso, sr<Iiti<>so, et ir-
religioso libro, iut' al' content' I'uer' luc al'
falsce, scandalosu*, libt'llosre, seditiosoe, et irre-
ligioste Anglican' sontcnt', videl't, * (1.) Note,
* It was well that they considered what might
' be said against thcni. which now most Chris-
* tians do not in their disputes. (2) These per-
* secut<irs, nnd the Romans, had some charity
'• nnd considtiration, in that they were re-
< stniined by the fear of the iieople, and did not
' accuse and tine them as for Routs, RioUi, and
* Seditions. (3) They that deny necessary
* premisses are not to lie disputed with.' Et
ulterius idem Attorn' diet* Dom' Regis nunc
jfeneral' pro eoilem Dom' Rt^e dat' Cur' hie
intelligi et informari, quml in al* loco in pretP
false, scandaloso, seditioso et irreligioso libro,
int' al' content' fuer' ha; al' ialsie, libcllosir,
fif*andalos(e, seditiqstt et irreligiosu? Anglican'
senientiie sequent' de et concernen' Episcopis
et al' Clericis hi\jus regn' Ansrl', vitlel't. 3.)
* Let not (hose proud hypocrites (Episcopis et
al' Clericos Ecdesis hajut reftk* Angl' iimiwn-
do) « deceive you,' (subdif didi Dom' Regit
hujus regn' Angl' ionueodo) ' who by their
* long liturgies and GeremoBiea,' (litarg* d
Ccremon' £ccle8iebi|UU8regn'Aji^' innueiMlo)
* and claim of superiority, do but cloak their
* worldliness, pride and oppresaion, and are re-
* li^ous to their greater damnation.' Et iJ-
terius idem Attorn' dicti Doia' Rogia nouo
general' pro eodem Dom' Rege dat Cor' hie
intelligi et informari, qaad in al' loeo in pad'
false, scandaloso, seditioso, et irreligioao libro,
int' al> content' fuer' hfB al' fohae^ libdloaft,
scandalosce, seditioss, et irreligiosK, sentent'
Anijflican' sequent' tie cC cancerben' Ckricia
hujus regn' Angl', , (2) Note, * Prieata nowara
^ many,' (Clericos Eccleaise hujus regn' Angl'
innuendo) ' but labourers few ; what men ara
* they that have and do silence (he faitbfulleit
* laboun^,' (sei|isum R. B. et al' facti'aa d
setlit'as p'son' pred' innuendo) « suspecting that
* the^ are not for their interest?' (iuteresic
Clericor'Ecclesioe hujus regn' Angl' innuendo.)
Et ulterius idem Attorn' dicti Dona' Rcgia
uunc general' pro eodem Dom' Rege dat Car*
hie intelligi et informari', quod in al' loco in
pred' f also, scandaloso, seditioso et irrdigiosa
libro, inter al' content' foerunt Ine al' ralsv,
libdlosae, scandalosee, seditiosie, et irreligioas,
sentent' sequen' de et concernen' Clericb hiyui
re^' Angl', vidd^t, (3.^ Note, ^ Chriaf a mb
' nisters use Goil's urainances to aave mea,
< and the devil's clei^y' (Clericoa Eockna
hujus regn' Angl' innuendo) « use them for
* snares, mischief and murder. (%,) Thsf
(Clericos Eoclesia: hujus regn' Augl' inouendo)
* will not let the i>eop1e (sulnlit* bujas regn'
Angl' innuendo) * be neuters between Ciod and
* the Devil, but force them (subdit' hujut
regn' Angl' innuendo) Mo be informing per-
* secutorb.' Et ulterius idem Attorn' dicti Dom*
Regis nunc general' pro eodem Dom' Rt^
flat Cur' hie intelligi et informari, quod
in al' loco in pncd' false, scandaloao, se-
ditioso et irreligioso libro, int' al' contents
fucriint hee aiise ialsoe, libdloss, acandakas^
seditiosse et irreligiosne sententis Anglioanfleae-
qiien' de et concrrnpu' legibus hujus regn'
Angl* contra illicit' Conventicul' et ad exd-
tand' popul' convenire in illicit' Conventicnl'i
vidfl't, < (<>.) Note, To be dissenters and dis*
* piitants aj^oinst error^* and tyrannical impod-
' tiuns upon conscience' (loge« et statut' hujni
regn' Am^l' contra pei-son' factioa' et Litnrg'
HccI' bujpis regn' Angl' ad^ersar,' AngKoe,
* against dissenters,' edit' et proYis innnenda)
*• is no fault but a great duty.' In mignan
Dei oninipotent' displiccnt, in contemptT 1^
hujus regn* Angl' manifest' in malum eflwr-
nitiosissiui' exemplum onmiu' al' in. tali casa
(ielin(|UHn', ac contra |>ncem dicti Dora' Regit
nunc, coron' et dignitat' suas, &c. Unde idea
Attorn' dicti Doui' Hcgis nunc general' pie
eodem Dom' Rogc |)ct' advisement' Cor'. M
in premiss* et debit' legis proceas' Tcraaa ip*
sum prctat' R. B. in hac |>arte fieri ad f*""—*^*
dicto Dom' Reside et in premiai', 5oB^
OS Un Uili Ct Febn
lifflcirr WM ramriUttci! lu
jmoo by %hv iar4 r4iirr ju^
nol« for lii» P«m|»hfa«e ^
VMlit,ffinted II tiulti b-'- -
ticatidakMia Aod md\^
mmmnt&i. On iltc*
we ftnit Hay cH' l«4'm.
Mr.
neb
v Ttasta-
rlie
-iu ^j was
iri Went-
iH oniernj
lobednwtt tip^ «^aiii5i kimt Majr l4ib, hi
|ilttftdod Not Gu iky to Uie infonnAtioD. Mftv
l^tb, b« b«iiig tnucb itidbpa«N)ti, moved ity ha
omMMtel. th«l tit iDig^bi bufe faitbcrr tiiui^
gifcD bim f(«r bit tml i baiit WM (lcrii«4 biii) ;
^ad itfftey%^ cries ant in a pMsiou^ '^ I will
toot i^ivc him a minute's litiie more to Kare bw
lift. We bare bid (^ajs bf) t« do i%illi other
•iut of |>«r«<»U5, but now we have a saint to
^eal frtth ; find I kitow bow to den I with
cainta as well •« aiiuicrs. Yonder (sny* be)
aiandiO»t€» in tb« pi1torv,t 0*^ ^^ (Actually did
M Uiat f cry lima in the New Palao«< Yard,) and
•tid be aayi be sttlier* for tb<^ if uth^ and fo
tays BiLXtfr ; bu. if Bnxter did but itand oo
tb#«<Jbt;r tide otiXtt \H\U\ry witb bioA, 1 would
aay, two of Ibf ^preatest rog[iie«i and raacAls io
* *' Bffoi« this maturate waa brougbt for
iriaU by a jury aoffickiiUy yrqioaaniead ia
Ikirour of Tory |poljti«a, tbo Bor. Kiobard
BaslaTf • diaaeotiAif mioiater; a pioaa aiid
Vmnttd naar^ of cjceniplary cbaraoter, always
panftrkibta iW bui attaciimfuii io looimrdiy,
0»d fsr itaM^ to i^oderuie mcaiiiireti m ifie
dAriiMitbotveaiiibecburct- ^'^v* 'h^s^uf biiE
^maaaiQii* ThtprMonoe i >4«}catton
ivaa, a ixjppnaed r»r*iyn<v- lasfciurc*
Hi«fia^bBWork
aJfEnfiaad ( art
not tntonded by bun, aud ^Uii:b tatM ixui
have been Aadc out to auy jury that had been
|«aa prfjudio^, or iitidf^r aiiy oiljc^r duection
iJbafi tlJAiof Jcfl^riea, the real motive waA,
t\kB daaire oi' (Hiiuaiiin^ an cmiaont duiaentin^
laaobfiTf whose imputation uraa lugK among bis
Met, ami wbii wm m^mmeii to favour the doU-
tjcai oyaftiooii of the wUiga. liw waa (ound
gnilty, and Je^fbriaa, in uasaiBg KoateoGc upon
ium, luadud biia wiib tW coaiaart reprojusbai
aad biUeraat taunii* He called bim »oruetiiii«i,
bv way of dehaaov, • aaiiit, sooifltimea, in
|»iaiaiar ter mi, an old ro^ue ; nod clawed tbia
jiaapeetabJe diirijittt to wbom the ordy crime
iiDpillad, w« Uie bavtug^ ipokKU disriMpecl-
iwiy of the biabofia of a co«niiiuriioa to wliidi
be din not b«loi^r« witb the lofamoua Oale«,
vho bad b^eu Uildy eoovustrd «d perjury, lio
Haisbod wi>ib di:<;larin^, ilrnt ii ^nn ynidic no-
Utr '.re vraa a foriDi ' i to
rt ^ ibo uation, in v. M
Mmmt v^Ati lUivi'riiMMji^l mceudiary. :^or m it
j«D|irobable liiai tliia dcclaralioit, absurd aa tt
iraai mi|fbt^* - i».u..f ^» ., fir.... xrben ibea'c-
diilitv (4' i was al its
t !►* i <mi»i^>i rorjury^ vol. 1<>, pp*
VOL, -kJ
m stood there/' On >T;-
the afVenio^tn, be ua^ hroujifiit to bi^
ibtr lord chief justii^e Jetfcieyn nt »iumind.iL '
Hir Vlenry Ashhurst, who could not fur^ake
bwoivn and his fiiUier's tV^p' I- -'"•■< i y him
all the while. ^Ir. Ba ii)tO
court, and wiih till the n^^A : y and
composure* wolteil ibr the couatng ot the lord
chiof JQftice, who appeared cfitickly iifUM \\a\4
great indtgnatiou tu bU face. }le no sooner
sat down than a short cauae was called tmd
tried ; after wblcb the cjerk begun to read th*
title of another eauae: *• V^ou blockhvad yon^
(says Jeffreys) t\if next cause is betwei*u
Richard Baxter aud the king ;* upon whiub
Mr. Baxter^s cause was called. Tbe paa^g^
mtntioued io the ini'onnation, were UiU para-
phrase on Mnttir* V. 1^« Alarkix, 3Q. Mark
xi. dl. 3Iarkxii. 3St 39,40. Luke x. a. Johti
xi« 57. and Act^ xv, 2. Theae patKage^ were
picked tint by :jtr linger l/E^trang^e, and some
vi'^ hLi umi^ianiunK : and a certain noted cler^
e^yman (^vbo ahall ha nameless) put into ilie
haiidM of bis enemieii some acousation^ out of
lioiQ. xiii. &c. as againat the kj/iif, to t(»neii
bin life ; but no use waa made of t£em. Tbe
great cbarg e was, *^ That in these several
IMsaagea be reflected on the prelates of tlie
Cburcb of Encland, and so waa cruiHy of sedi-
tioo, ^e.^' Tbe kin^^a counael opened the
information at large with its aggravations. Mr,
U'allop, Mr. ^V iUiamu, Mr. Hothciam, Mr.
Atwood, and Mr, Phipps, were Mr. Baxter'a
counsel, and had bocu fcfsd by sir Hr nry Aiib-
burst.
Mr. Wallop aaid,^ *' That he conceivedi iUe
matter depending being a point of doctrine, it
! it to be referred tothtiWhop hit» ordinary »
! oot^ ho Uumbt V concfflvcU the doctrine waa
itmoceat ^i ide, KHting aside tbe Ja^
nHcndotf 1 tere was 00 Gotoiir, thera
being no a^iectideiit to refer them to (that if ^
DO biabop or cler^fy of Uie Ciiurub of Eaglatid
named). Ue satd tho book accused, 1. c. the
C^ivDotat 00 the New Teatamttol, coutaiued
many elf rnal truths: but they who drew tlie
inibrmaticni, were the libellers, in npjdving to
tbo probitftf of the Cburcb of KogUnd tlMwa
aevero tldns^ which were written conettmn^
aome prdatoa, who deserved the character be
intTC. My lord (^ys he), 1 humbly codceive
tlit^ hishiju>i: ^Tr^ Baxter AOfal^^ 'i^- ■^'^ your
1 liavercad chptr muKt
« like plagueti of ^1 li und
tbe world " ♦* Mr. Wallop, (says tiie lord
cbi«f justice) I observe you ant in all thf^e
dirty iitktiMm \ and were it not for you» }rciiLie<
» it \y^ c:uuld never tind (tlioiigh grejit ia
rry lias been made among the di*»iw.»iiten
I tiM trial waa ever lak«ij lu ah<»ri'htioOtj
wbtcii ia a g?«at pity^ berauxe it muU haviiJ
been very curiouo ; %o ha,vv insiTtcd this $>bo
account, which &brw9 the temper ot the rbie
juatice, ami the cruel uaagit of the pri^tiergl
t^kcii from CaUuuy's LUeoi^ Uaxtar." Forii»tM
Edition*
aK
*99]
1 JAMES II.
Proeeedingt againtt Riehard Saxlert
tsos
men of the lon^ robe, who sliouUl have more
wit and honesty than to support and hotd up
these factious knaves by the chin, we should
not be at the dvlsh we are at." •• Mv lord,
(says Mr. Wallop) I humbly conceive, that the
passages accused are natural deductions from
the text." — " You humbly conceive, (says
JefTreys) and I humbly conceive ; swear him,
•wear him."—" My lord, (saith he) undei* (k-
Tour, I am counsel ibr the defendant ; and if I
understand either Latin or Enp^Iish, the infor-
mation now brought against Mr. Baxter upon
•o slight a ground, is a greater reflection upon
the Church of England, than any thing con-
tained in the book be is accuseil for." Says
Jeffreys to him, ♦* Sometimes you humbly con-
<;eive, and sometimes you are very positive :
you talk of your skill m Church-history, and
of your understanding Latin and. English; 1
think I understand somethin<ir of them as well
as you ; but in short must tell you, that if you
do not understand your duty' better, I shall
. teach it you." U[>on whicB Mr. Wallop sat
down.
Mr. Rotheram urged, "That if Mr. Baxter's
book had sharp reflections • upon the Church of
Rome by name, but spake well of the prelates
of the Church of England, it was to be pre-
sumed, that the sharp reflections were in-
tended only af^inst the prelates of the Church
of Wome.'*^ Thelord chief justice said, " Bax-
ter was an enenty to the name and thing, the
«flioe and persons of bishops." — I^)theram
added, " Tliat Mr. Baxter fietiuently attended
Divine Service, went to the Sacrament, and
persuaded others to'do so ' too, as was certainly
and pnblicly' known ; and had, in the very
book so charged, spoken very moderately and
honourably of the bishops of the Church of
England.'^ Mr. Baxter added, " My lord,
I have been so moi1er<Ue with resj>ect to the
Church of England, that I have mcurred the
censure of many of the dissenters upon that
accmint." 1" Baxter for bishops ! (saith
Jeffreys) that is a merry conceit innecd ! turn
to it, turn to it." ^Upon this llotheram
turned to a place, whei-e it is said, That -gi-eat
respect is due to those truly called to be bishops
among ns ; or to that purpose. " Ay, (savs
Jcrt'reys) tliis is your Tresbyterian cant, truly
calleii to be bishops ; that is himself, and such
rascals called to he bisbo|)s of Kidderminster,*
and other siirh like places ; bishops set apart
by sncli fnctious. snivelHng Presbyterians as
hiiusolf ; a Kidderminster bishop be means,
■~~— ~~*^ ■ ■■ I I ■ ■ . , -I .
* Af^cr the Restoration, Baxter had been
oflmHl hy lord chancellor Clarcnilon, the
bishopnc uf Flerefonl, which hr refused, allcdif-
ing in a letter his reasons of conscience,
and he only requested permission to conlinuc
Ills miIli^t^y at Kiilderminstcr, which was
not gram I'd. He had been episcopally or-
dniucd, hut became a very open and steady
dissenter, it is state<l that his scruples were
first excited by the famous et cetera oath. See
move of biniio Calamy and the Biographia,
according to the saying of a late kanied au-
thor ; and every parish aball maintain a Ty tli»-
pig Metropolitan.*' Mr. Baxter bq^nniiig to
speak agam, saith Jeflreysto him, ** Richard,
Richard, dost thou think we will bear thee
poison the court? Richard, thou art ui oM
fellow, an old knave ; thou hast written books
enough to load a cart ; every one is as full of
sedition (T might say treason) as an egg is fuU
of meat : ha£t tlion been whipt out of thy
writing trade forty years ago, it bad been
happy. Thou pretendest to be a preacher of
the gospel of peace, and thon hast one foot in .
the grave ; it is time for thee to begin to think
what account thou inteddest to give : but leave
thee to thyself, and I see thou wilt go on as
thou hast began ; but by tlie grace of Cvod I'll
look aflcr thee. I know thou hast a michty
party, and I see a great many of the braSier-
hood in comers, waitlnir to see what will be-
come of their mighty ^Bon ; and a doctor of
the party (looking to Doctor Bates) at yow
elbow; but by the grace of Almighty Ood, I
will crush you all."
Mr. Rotheram sitting down, BIr. Atwood
began to shew, that not one of the passages
mentioned in the information ought to be
strained to that sense, which was put npoa
them by the innuendot, they being mora na-
tuml when taken in a milder sense ; nor could
any one of them be applied to the pralatei of
the Church of England, without a yery fbnsd
construction : to evidence this, he would bavs
read some of the text j but Jeffreys cried out,
" Yon sha'n't draw me into a conyenticle-willi
your annotations, nor your snivelling persoa
neither."
" My lord, (says Mr. Atwood) I conoeivs
this to be expressly within RosewelPs case,
lately before your lordship." (Vide vol. 10, p.
147.) «< You conceive, (saith Jeffreyt)
you conceive amiss ; it is not."—** My lord,
(saith Atwood) that I may use the best autbo-
rity, permit me to repeat your lordship's own
words in that case." " No, you aba'a*!;
(says he) you need not speak, for you aie aa
author already, though you speak aoc'
imfiertinently." Says Atwood, *• 1
help that, my lord, if my talent be no I
but it is my duty to do my best for my cUcBt."
Jeffreys thereupon went on, inveigUBg
against what Atwoofl had published ; mS At-
wood justified it to be in defence of the S^
lish constitution, declaring that he never dis*
owned any thing he had written. Jeffreys
several times ordered him to sit down, but he
still went on. "My lord (f^ays he), I have
matters of law to offer fur my client ;'* and be
proceeded to cite several cases, wherein it had
been a^yudged, that words ought to be taken
in the milder sense, and not in the strained, by
Innitcndos, " Well, (says Jeffreys when bs
had flone) vou have had your say."
Mr. Williams and Mr. Pbipps said nothing;
for they saw it was to no purpose. At length
says Mr. Baxter himself, " My lord, I tbmk
I can clearly answer all that la kid to m
}■
cliarjL^, ftntl I shnll do it briefly ; tUv. nnm is
contuioeft iu thete tew pujiffi^, to M^hicb f shall
adil a link by tcsliuifMiy*" — li»Ji 1 'I not
bi'nr a u«mJ: — At leo*;^!! lheuhi< um-
meil up tKe matler in a luag aoti i'ibutijc ha-
*• * rif noLorioitsly known (nays he) there has
k«eti a design to nun theking^ and nahori; the
IfcM gfame has Keen renewed, and this him l»een
the mtio iucendiary : lie is as modest now as
can i*e\ hat time wft«, when no nmo was bo
feady at. Bind your kinirii in chains, and your
aobles m fetters of iron ; and, To your lefitV, O
Israel \ Genilemen, for God'it sake, don^t let us
be tfulh^l ti* iiri> ill an ai^'e, -Sec,'* And when
he coij ' I ' 1 'ii told the jury, *' That if they
in thi lice bt'heve«l he mcaut the
l>isho(>*« unu t irr;j;^y id the church of Entftaud,
iu the paasafifes ^^ hich the infortnation reli^rred
to, they must lind him Guilty ; and he could
mean no men elise ; if not, tliey mu^t find him
Not tiuiliy."*-
When he had done, says Mr, Baxter to him ;
t* Does your lurdstiip think any jury wilt pre-
tend to ptst a verdict upon me upon imch a
trial?** •» VM warrant you, Mr. Bax-
ter, (says be) don't you trouble yourself about
tbat/'
The }\\ry immediately laid thdr heads toge-
ther attfteuar, and found him Guilty,
As Mr, Baxter was £^itij|^ from the bar,
be told the lord cliiff iu^ticc, who hud so loaded
liim wJtl^ - ; -:■ ,-' -' '■. ' ■■-,:.,. I -'u^in^
UlAt A £ : liW
the judg^e replied, *• I'liat there was not an
lioucst man iu Boglaad, hut what took him for
Ag[reat knave.^'
He bad subp<£tiaM several cler^'mco, who
bad appeared in court, but were ot no use to
liiin, through \he fioleoce of the chief justice.
Tbe Trial heing over, sir Henry Ashhurst
led Mr. Baxter tlirou|^h the crowd, (1 mention
it to hia honour, says bishop Ketinet) and cou-
veyed him away ui hts coach. On June ^9
fblbirioK;^, be hail jud^nent ji^ivcn agaiost him i
be waalf(i€4i five hundred murkx ; to be iu pri-
•ou till he paid it, and be buund to his good
behitf lour for seven years.
Mr. ila\i*^r nt^*»ittf«rtls obtained the king's
pardon, by Jon of the lord Po wis:
lib luic Wj> , I ii; and ou Wednesday,
fiJaTafobcr tl^ sir batQUtfl Astry senthiAWar-
A.jy. 1585.
rsQf
rant to Ihf keeper of the King's Bench prison
to dischnre^e hui» ; but he gave sureties tor his
goo^' ' ' ' V declaring (lor hi*
Kilt! t in hi 111 W inters
prtttAi u .Pir.li ii tn tuL y.KMi L>ehaviour for him
to reside in Lontlon, which was not allowable
according to the Oxford act : And ihis was
entered upon his haU-lKind. Notwiih standing
litis, he continued some time after in the rules ;
and ou Februury 28 following, removed to a
house he look in Charter- Houae- Yard, where
he preached to a separate congregation without
inteiTUplion as long as he lived; his death
happening after the Revolution, viz. December
8, t691.
The defendant was found Guilty on this In-
formation, and after exceptions taken iu arrest
of judgment and over-ruled, the C4>urt grtve
judgment and fined him 500/, and ordered him
to give security for his good behaviour lor
seven years.
The Case is reported, 3 Mod. C8, as follows:
** Mr» Baxter was a nonconformist minister »
against whom an information was exhibited tor
writing a ho<»k which he entitled, '* A Para-
phrase upou the New Testament,"
'* The criuDe ai (edged against him in the in-
formation was. That Tie intending to bring tho
protesiant religion into contempt, and likewise
the bishopR (innuendo the bishops of England),
did publi*»h the libel, in which was contained
such words, ^c. setting forth ihe words« Hm
was convicted.
*^ Mr. Williams moved in arrest of judgment.
First, that tlie words in the iuforniation and
•* the bishops" therein mentioned were [uiBup-
Elied ** to the protestant religion '^ and *Mhe
ishops of England'* by such innucndo€$^
>vhtch coidd not support this charge aga'
the defendant,
** Secondly, that the dhiringai and habfttB
corpora were inttr aus ct Richard um BaxtrrsT
which could not be, because the iuforuiatio ^
was exhibited in the name of the Attoi-neyl
GcQerrtl ,
** But the ^ourt over* ruled these exception^
and tiiiid, that by the word '' bishops*' in thif
iJiformatioU) no other could be reasonably in*
tended but ** the English bishops/'
** The coiut thereupon fined him 500/., ba
ordered him to give security for lu« good b^i"]
haviotir for isren years/'
'Tijr^-'- ■
SOS]
I JAM£S n.
Trial ofRoberi Frmices^
[SM
337. The Trial of Robert Frances, Gent, for the Murder of
Thomas Dangerfield,* at Justice-Hall in the Old-Bailey, the
16th day of July, 1685, in the first Year of his Majesty's
Reign, before the Right Hon. Sir James Smith, knt Lord-
Mayor of Loncjon, Sir Thomas Jenner, knt. Recorder of the
said City, and one of his Majesty's Serjeants at Law, and
others his Majesty's Justices.
The witnesses affidnst llie pirnnier i»cit
many, and most of them retj pMitire ; depos-
ing^, That they saw the said liobeH FFaaeii
coming (o the side of the coach in which Mr^
Dangerfield was, and that there he thrust Ui
said cane into his eye; after which, miniiif
into St. Tha?ie's-Inn, in Hotborn, he wis me-
sently seized, and seat to Mewg^; woers
when he went in, one of the retmue of the
London Jury.
TlmmaR Anger,
Philip Perry,
lMuli|) 8tock(»,
Luke Poe,
John Warfield,
Chrislopher Johnson,
Stephen Coleman,
Henry Cremer,
Stephen JGibons,
Simun Chapman,
Joseph Speed,
Kichavd Shaw.
Robert Frances, gent, was indicted for
as«<flnlirnpr lliouias Dnngcrfield, in the parish
of St. Andrew*a, Holborn, Loudon, with a bam-
boo cane, to the ?a1ueof 6d. striking it into his
left eye, of which wound the said Thomas
Dangerfield is since dead.f
• " Though wc have not been aide to phicure
Danp;erfield's trini for a libel ; yet shall insert
the trial of Mr. Frances for killing him, from
the sessions- paper of that time, witTi his speech
Kt Tyburn, as it will give some light to the
history of that time." Former Edition. There
is in 3 Mod. Rep. G8 the following short note
of Dangerfield*8 case :
" The Defendant was con vi<^tcd of publishing
a libel, wherein he had accused the king, when
duke of York, that he had hired him to kill the
late king Charles, &c. And on Friday June
90, 1685, he was brought to the bar, ^nlMsa
where he received this sentence, viz. Tlmt be
should pay a fine of 500/. that he should
fttand twice in the pillory, and go about the
hall with a paper in his hat signifying his
crime ; that on Thursday next he should be
whipped from Ald^ate to Newgate, and on
Saturday following trom Newgate to Tyburn ;
which sentence was 'executed accordingly.
<' As he was returning in a coach on Satur-
day from T}bum, one Mr. Robert Frances, a
barrister of Gray's Inn, asked him in a jeering
manner, wbetlier he had run his heat that day P
He renlied to him in scurrilous words. Where-
vpon ^r. Frances run him into the eye with a
smalhcane which he had then in his hand, of
which wound the said Mr. Dan&^rfield died on
the Monday followincr. Mr. Frances was in-
dicted for this niunfer ; and u|>on not guilty
pleaded was tried at the Old Bailey, and found
ffuilty, ami executed at Tyburn on Friday
July the e4th, in the same year."
f '* Bishop Burnet, in hia Ilistury of his Own
Vnttcs, Tol. 1, p. ad7» says, " DangcrfieU,
prison telling him that Dangerfield wM di&
he the said Frances replied, That if he sliMi
die, it would save the hangdisn a labour. Mr.
Dangerfield, after he was carried to the gvolt
crieu out very much of theaogaish of hiscye»
saying, Oh, my eye! Oh, myeje! •* "^ --
another of the witnesses in ihe Fopish Pisl^
was also found guilty of peijory, and had As
same punishment (as Oatesl ; but it had a msrs
terrible conclnnon ; for a onitsl stndeM af tk*
law, who had no private quarrel with hina, M j
was onlj^ transported with the zeal of thatlins^
struck him over the head with his cane, as ha
ffot his last lash : This hit him so iaully, tlMt
be died of it immediately. The peraoo was
apprehteded, and the king left him to the law |
and though great intercession vras made ibr
him, the king would not interpose, oo he wsa
hanged for it." ^The bisnop here aeons
mistaken ; for I do not find Dangerfield was
convicted of perjury ; or that he ffot fab death
on the last lash.- Rapin, vol. 11. 744, ai^
thus, '* The next victim to the cathollo, ast
long after Oates, was Thomas DanrerfieW^
who discovered the pretended Meal-TiApletp
which he had laid to the charge of the PkeMs*
tants. But afterwards not being able to auia*
tain before the council what he had dapeasi,
he confessed, he was persuaded to invent it by
the countess of Powis, and the Popish jords in
the Tower. Moreover, he had published a
narrative of all the secret practices used as wall
to corrupt him, as to render the plot probalilcb
As he owned he had received money fhmi
the late king and the duke of York, toe hst
would never sufTer such an offence to go on-
punished, when he came to be king. Dan-
^rfieid therefore was committed to prisODp and
mdicted for publishing a scandalous libel. He
was tried, and brought in guilty by the jnry ;
after which he received judgment at the King'a
hench bar. That he should stand iwipaiBOia
505] f^ the MurdfT rf Thmai DsngerfM.
\ mttlc« n noise, A nbymdan hvtttg brmight
Ifive his nJricp, whether it tva^ rce^iiiiHt****
^c^l him, he found tiitu ' < itl, ami
bmiiing extremely. T\h >n brinjf
Wwi^e x^cot for, probing the virouiiJ. fuutKl it
► b*.* niortiii ; uud be^ witb cilbci-s, itid verily
iWevf^ that il o<x»a!(joned Ins death, Mr.
taiic<»js, in his own defence, alleiJi^etf^ Ttiat
a^ * ■ :icb, he a&kcrf Dang+TfiHd, if
II hentfd r U|»rm which Mr,
-' im * son of 4 whore;* he, ill
(I a slight \j\o\r vflih his
I . ■ bt'Vi'vrtl could not kill
niut ; I no fndlice or
traL II rs$es, who gave
in a rtry ^ood cbaracirr, but spoke very
iltle to the fact ; U'berf upon iw Hits fimtiil
fiiilty.^ — The rvieretid Mr, Hatnue! Smith,
mdiuary of Netvgate, gives tliis account of
Him:
** I w#».ot ta Mr. Robert Frtmces brs cbim-
1 r.it he dmih'd n^ to take a |>Qrticu1ar
I ; and found him in a serious, good
»in»i composure of mind; v^illing; to re-
limst'ir U* tlie <ilhfi&e ducturc of God^ti
and his deteiTDi[iiicio& for life or death.
INe
; Cbat he should be whipt from Aldgate
wjfaie ot> one day, and from Newgate lo
iHJm on another ; and should pity a finectf
[luodred poundi. The scourging was
uled ivltb rigour » though with less crucltr
on Oate«. The second day, DangcrAdo,
the Hbijiping ^vas over, tieing in a couch
lilt Ilattou' Garden, Robert Frances, a
(itiitetr of Gray'a-tno, came to the roach
'" .[)re«*iou«j
I answer,
^ ibe
„,.L : .; .:l S*OU
1 1 1 small cane in
In ^ ithall biKforcc,
bleb lu two hotirs put an end to liis life,
loces WHS condemned to b>' hjuirTrd, nnd wai
id aceordingly ; the I »ng-
itp*! for n pardon, ijt . -r to
(ft? ^ ne unpunished/'
Sr I Wiltinni»,* who had hetsn
!lkct' v'l the llou^icof Commons, for pub-
an infiimou,s libel, (aa fciJpeaker, by
bbing
kl
ik'd Dan
court of
iL
li
atmi
Easl . ;-_ * .
^f»wcr 471,
TrHtu an inflitinntirfn n en inU the defend-
r ]»ubtishing »
i ivr, he pleadett
wjt^ Ml (Ke iitiir of piiMicAtion speaker
[lloiisc i>f (Joinmons ; and, as ftuclit btid
Ikt lu puUli&b the votes ai\d Qctn of the
* Bet Ili« CttK (a. D. 10945,) 4a tUii Cottfc-
Ftnt, f prayed with bim, and then entered
upon an iniiuiry into h'm li/c and conversation,
precedent to the crime of killing Mr, Danger-
field. He was Vfcry free to give an account of
himself. Be said, Ibnt he was bom of Pro-*
f instant parent*^, and bred up in good Ifteratnr^j
that twenty years since he wa« a student ia
Chribl-Cburcn college \n Oxford ; that afker-
ward he went over sea with mr Jo^^rph )Vil-
tiamson, his late majesty's ambassadur, as an
attendant on bim ; that for tbttrteen years ladt
past he balh been of the society of Grays- Fnn,
and I'tanik* i1 rn the law ; thai he did not lead
au3 it life till this unhappy crime-
He (lirc^d that be saw Dangerfield in
the piiiory at Westminster; and that on the
day in wliich be was wbtpj>ed to Tyburn, Mr.
France! was with a friend at a coffee- bouse
near to St, Andrew's diUrch In Holborn ; and
thought not to have starred there, because
he wtm to dine that day with bis frtend, and
was, in the afternoon, to have mnnoged a cause
for a client at Guildhall, so that he was going
home from the said coffee-house : But a report
coming thither thai Dang^erfleld was in hit
return from Tyburn, and very near^ he leA bii
Roase; and that the narratire was printed
and published as paiTel of the proceeifmg^.
The court would not debate the formality of
flucb an idle insignificant plea (as they were
pleased to call it), but gave judgment for the
king, Easter Term, 2 Jac, H. 1686, K- B-
Shower Rep. 471. pi. 436, Comb. 18. See
Atkins's Power of Parliaments, flee. The Kinp
ngaifist Williams. ^It h observable, that hit
WiUInm WiUifluvs was not ^j^feakerof the House
of CoTumnns at the time this case waa adjudge
ed, though he was when the offence, of whi "
he was accused, waa com mitt ed, — Tho I>o
Chief Justice ^V right asked the deibndimt'
couBnel whef her an order of the Hotiaeof Com*
moui couTd justify a scandalous, infknKMW and
dagitious hhel T 2 Shuwer 471,'* A Digeat of
Ljaws cottCPTuing Libels, 4to, p. 75.
*^ As the proceecHfigv agaiost m? William
WiUiams were very e^ctraordinary, so was the
punishment : The fine waa the hearit^t that
ever was imposed in any court for the like
crime, sir Bartholomew Shower, one of iho
reporters ofthiiirasc, savi, ttr WiHiam WiMiamf
being finefl 1> ' * ' 'Ou/, of the mo*
ney,andther^ »ri waa^acktiow-
* '^'Ptlonrocot.t, iM«M ' *^' ' ■- ^^'illiain
laams in this same r< !v per-
. ^sitinglbcsL'vrnbi;«hi»^^ ..^.: Uecba-
racterof solicitor- general, 1 am apt tothinlr,
that the One wast imi»o«etl m ttrrtrrm ta
othera; andtliat the only purpose > r
Wittirim Williams, tva$ to moke a j^ of
1 the commons, who'je pnniegea^
hen on foot had prevailed, must
• n to nolhiug,'' Digest of the
i-r libeh, p. 110,115- Note to
See also, more pnrticalart
r field and Frances in the
iniru voruiiie ot iv^nQftt*« C0m|rfelt
udg^
rhicb^a
A^il^
507]
1 JAMES IL
Trial qfAoberl Francei*
[508
wife in bis friend's hand, and went to meet the
coacb in which Dan^erfieid was, only out of
curiosity (as lie saitb) to observe how he iook-
led atler his beings whipped. He sal^ that the
coach did not stop, but be went to the side of
it, and said, have you had your heat to-day ?
How is it now wilh you? Dangerfield, upon
those words, (he says^ called him ' sod of a
'whore,'and said,'what naveyoutodowith mcP'
Mr. Frances being asked by the ordinary, what
moved him to kill Dao^erticld, he replie<i, that
bis passion was stirred up at Danj^^ei field's re-
siling language, and said, that he only intended
to beat him with a bamboo cane, which was
furzed and worn out at the end of it : But the
coacb moving onward, the cane wounded Dan-
gerfield in the eye ; but be intended only to
Save thrust it at his breast. He also said, that
be bad a short sword, and yet used it not, be-
cause he did not design to kill Dangcrfield.
*' Mr. Frances being told by the ordinary,
that the very thrust proved fatal, and was a
vcr}' inhuman act toward a person in his dis-
tress ; to this Mr. Frances replied, That he
never bore any malice nor ffnidjre to Mr. Dan-
gerfield, nor was he movra to that act by any
person whatsoever; only God lefl him to him-
self, for the punishment of his former sins, to
run into this sudden effort of passiou. Mr.
Frances was much affected with my discourse,
«nd wept in praying with him : ne was very
attentive to the sermons and pravers on the
Lord's day, more than the other cruninals; so
be seemeti very penitent, and I hope tnat this
sentence of fleath on him did awuken him to a
•erious recalling to mind whatsoever former
sins he might be euilty of, in order to make
his peace wilh God, who is the searcher of all
hearts, and only knows who are truly penitent."
The Di/ing Speech of Uobert Frances, of
Urui/s-Inny Esq. July »Uh 1685. DtlU
xertd bif his own /land to the Ordinarxf^
ut the Place of Erccutioji, desiruii^ the
Mine might be published.
I am here by the divine permission and pro-
ipidence of God become a spectacle to GimI,
angels, and men, for a rash, extravuirant and
imprudent act, wherein I do con 1 ess, 1 have not
only oflcndcd against the jrovcrnment and
courts of justice, but a&cainst Christianity, and
even the rules of morality itself: neverihj. less,
(I hope) not only the court, hut all unbiassed
men, from the several circinnstuncc^ of the
fact, are satisfied that I had no inaUcious intent
of doing what fell out, nor had any grudge or
personal prejudice lo him u^ion an} account
whats'iever, more than what all honest aud
good men could not but have, timt luve the
king and the government. I'he solemn truth
of all whicii I have declared, not only upon
the holy sacrament I received fWun 31 r. IVIaster,
but also that I never knew nor saw him before
that unhappy moment, save once at a distance
ID the pillory at Westiuinsler, and do now, as a
dying man, solemnly avow and, protest the
same : and therefore I hope I may boldly lay
1 am uot conscious of any guilt betbre God at
to the malice . However, God in his great wis-
dom has been pleased to suffer this great cala-
mity to fall upon me: and I ho|ie this bit
severe chasti»eueut is in order to bring me to
himself, w hen softer means had not tutfaciently
doue it. All them that know me (I am sure)
will do me that justice as to believe I am far
from baviog done it either wilfully or merce-
narily (as most untruly is reported). And that
these honourable persons are above the tboughtt
of such uuworthy things, for which tbey have
been as maliciously as falsely tradaced upon
my score ; 1 beer thVir pardon for the scandal I
have unhappily been the occasion of, anddetire
this acknowledgment may be by them accepted
as a reparation, since to disown it at tliis Uine
of my death, is all the satisfaction 1 am able to
make them.
As to my religion, (however I have been re«
presented) there are people that knew me at
the university, and since that can be my wit-
nesses, how obedient and zealous a ton of the
church of England (by law establithed) I btfe
been.
And these worthy divines that did me the
favour to visit me in affliction, will ffife the
world an account (as occasion serves) of my in*
tegrity therein : and if 1 had been at zealoot ia
the service of God, as my prince^ be would not
have led me so much to myself, as to hafc
pcrmitteil me to have fallen into this unex-
pected extremity.
And as for my morals^ the honourable tociety
> of Grays- Inn will answer for me, that in above
these tvv elve years time, I have had the honour
of being admitted a member of that society, I
never had any quarrel or controversy with any
member thereof; and all persons with whom
I have had conversation, I question not, will
give a good character of my innocent and
peaceable behaviour.
I ])ray God Almighty preserve ami blets bit
most sacred mnjesty, his royal contort queen
iVIarv, C'atherine the queen dowager, their
royal hiirhnesscs, and all the royal family ;
and grant that there nray never want one of
that royal line to swny the sccptera of thete
kingdoms as long as sun and moon endure. Ia
the union r.iul lo\eof his subjects, strengtben
him that he may vanquish and overcome all
his enemirs, \\ hich 1 am glad to have seen to
nmch prospect of, and am only sorry I am col
off from «;ccing my so nuicb desired satislactiaB
of those happy days all his good tubjeett will
enjoy under his auspicious government. I
pray God forgive me my sins, that have mada
me unworthy of that blessing.
Hlcssed be the Lurd, that I have lived to at
not to l>e ashamed to live, or afraid to die;
though 1 cannot but regret my being made a
sacritice to the faction, who I am satis6ed ara
the only people that will rejoice in my ruin ;
ibr there is no man that loves his prinee, but
will lament that notliing lett than tue blood of
}| Trial of Henrt^ t^rd Ddamere,
A, D. 1636*
£610
inoflTensi^c tiiiiti (save in ihh imgle extm-
nacr) can Katisity iliern for the sudtlen hiicfn-
nVe tmnspart uf /eul liiul passion af^inst oue
fnolanou5ly wtrknl ami mtjinnmii ; for I lio
DtCbl lic'toi ' uty GfMl^ (before whom I
Jl imme«! , ur) that when I went to
And bc\sit1c<! that, slic h as virtuous a woman ai
fivw, ami born of so gfood and loyal a fnuiily,
that if <$he had l>cen so (ticlined, she n'ould hare
wxinii'd 10 have prostituted herself to such a
proftififatr itcrson : but, on the contrary, (f Jod
i« my wittiest) 1 never had any such thoughia
h*Huie, i nut not iuteod ro uiuch »% to j of her, and do as ferily believe/ nn tliere in tk
) him, or believe I eould hare tiad op
bity of ko doint^, much less mf doiu^ him
by harm. Neither is it probable J shottid vvi(h
Small bainltoo cane, no bi|r^cr than a man's
"Ulc fiucr«r, without any iron upon it, much
; a dart in it, as it %va9 most industriously
ad abroad to preiudice me in the opinion of
God in HeavcDt 1 never had any reai*on ; ttUm
havini^ aUvaya been the most inoulc^ent, kind
and loving %iife that ever man had, and id
my conscience one of the best of women ; uavi"^
I am so far from suspecting her virtuCi that su#
is the only loss 1 rej^ret on earth, ami can freely
part with every thin£( etue here below without
world J for, il I liad had auch a wicktd de- ^re[>inin^, which in all my trouble I have owned
t iuteniionally, 1 had a little short sword by
^ side much more proper for fiticli a purpose.
|hd furtiier, if* I had bebeved or known that I
111 done any harm to him^ I had opportunity
loufi^h of escaping afterwartls, w hrcn 1 never
ulearoured. Now all these thing-ei being
fcjy weighed with their several circumstances^
i|ea?e my sad case to the consideration of all
■ antj charitable men. However, I would
have this to In* interpreted as a reflection
on the court, who I doubl not are by this
ne satisfieil, (and Mr. Recorder did in open
irl ilrdare) that in their consciences they
I TC I maliciously designed him the
III happeneil, but that it was purely
icideuiul. But in the strict coustructjon of
I was foutjd irtiilty of murder.
Btit that whicii most sensibly afflicts me,
1 18 worse to me than dc3ih, that I cannot
jftitine, but that they have not only raised
~ i Tipon me in particular preparatory to
I \.\[nm my pwir umoccut wife, as if my
alousy of hrrhud been the reason of my ani-
osily' to l>angerh» til ; when 1 am morally
Uuu <the never saw him in her whole life, save^
I fatal moment ; and no couple (as hundreds
to wttQOM») btve lived m better correspondence.
belore all people, and particularly Mi\ Mahter,
Mr. Ordinary t and Mr. Smithies of Crippleg^atCi
who can all testify those tears and endeared
exprewions that have piu.sed between us, whea
Jiny of them did me ttie kindness to visit me io
my diatress.
'And I do from the tK>tiom of toy heart freely
for^Hve the witnesaes that swore against xu«
those woitls I never spoke ; for, as I shall an-
swer at the Great Tribunal* I said no other or
more words than these; How now, friend.
have you had your heat this mominj^ ? for all
the ill they have done me. give them repentance,
good GoiJ! even for these that have coutribu fed
to the shedding of my blood, I pray thee shed
thy bowels of mercy.
I do heartily thank those noble and honour-
able persons, and all other my friends, that
have S4> charitably interposed with his majesty
on my liehalf (thoufirh it hath proved unsuc-
cessful). 1 pray God nevertheless to return
their kind endeavours a thousand -fold into their
own bosoms: Lord, return it to them and
theirs !
Lord Jesus^ receive my soul ! Thy Will b«
done on Eartli as it is in Heaven. Amen,
Amen, Amen. Robert FiuficBi.
J8. The Trial of Henrt Lord Delamere,^ in the Court of tl
Lord Iligli Steward, at Westminster, for High Treason
I James IL a, d. l6S6.
January 14^ 1G86.
of Cf\ SeIUEANT At Arms, make
iroclautation*
Srrj. lit Arma, 0-\*es, 0>Ves, O.Yi?s ! My
urd Hi^h Ktewurd of £o;;land his ^ace doth
•He was the ftccond lord Ddamcre (in whi^-h
onotir he bad m An;rf»«l» 1084, succefded hisi
tt|>er, lh«* cflrbrtkiiMl royaliftf Hir Gcorpe
k) and iir«t < the enrt of l^tumli>rd,
whtim ' ^ wn^e [imd at this
Plitiu*. 1 in of
alrnt^, ail illkni
ki»litwiaiauty'-vi'-. »AL TTW-, -1 uiiv .. iitem*
straitly charge and command all manner of
persons lo keep silence, and to gire ear to the
kin^*« majesty's commission to bis grace my
lyjrd Hi^^li steward of England, upon i^ain of
imprisonment.
Then the Commission was read, his Grac*
and all the Peer*«tandiug up bAre-headed.
bcr of the House of Commons, a icealmts ntid
powerful eupporUT of the Bill of ETfcltuirin.
At the time of the KevuUtliMn, he enrly rai^yd
a large (orce iii Lnncushire nt- ' « k. .1,,^^% with
which hejoiuef)rliepri»rt*o!
de(^« ' '
til-
.1 «M,
d warn
Httlitttx nnil ^ ly ti()on
to king Jnme* tor tns rVmovftI
lU. Jamcfli Atler his rciifei
amy
Bii]
1' JAMES n.
Trial ofHettrjf Lord Ddameret
(51t
Then theSUff beinsf carried between Garter
King at Arms, and the GeDtlcman-Usher of the
Black Rod, was with three reverences de-
li vereil upon the kuee to bis tirace, and h^ bini
re-deU?eiH;d, to the Geutleman-Usber of Uio
Black Rod, to bold during; the senrice.
CL of Cr. Seijeant at Arms, make procla-
iDation,
Serj. at Amu. O Yes ! His grace my Lord
Hiffh Steward of England doth strait! v charge
and command all manner of |>ersou8 here pre-
sent, except ^ peers, priry oounsellorsy and the
rerereud judges now assistant, to be unco?ered.
CL ^ Cr, Make proclamation.
Serj, at Armt. O-Yes ! My Lord High
Steward of England bis Grace straitly chargeth
and commandeth all justices, commissioners,
ami all and erery other person and persons to
whom any writ or precept has been directed,
for the certifying or any indiotmeDt or record
before his grace my Lord High Steward of
England, that they do certify and bring in the
tame forthwith, according to the tenor of the
•ame writ and |irecept, to them or ilny of tliem
directed, upon pain and peril shall fall thereon.
Then sir Edward Lutwyclie, one of his Ma*
into France, said, that on this occasion lord De-
Umere, whom be had used ill, had treated him
with much more regard than the other two
lords is whom be had been kind, and from
whom he might better have ex|)ected it. Yet
Henry, earl of Chirendon, in his '« Diary," ex-
presses himself with some spleen of the intem-
perance with which Delamcre supported the
neasure of the king's removal, and acted on
some other occasions :
<* 1688, Dec. 17. My lord Halifax gave
bim" [the prince of Orange] << an account of
the iiesohition the Lords were come to, which
was drawn up in writing, and being read, I
said a&(uin, it seemed strange to me that the
king sliould be, as it were, directed to go to
Ham ; that if it were not safe for his majesty
to lie at London, why might be not be at li-
berty to QO where be pleased ? or be desired to
go to somecf his<own liouses, Uampton-oourt
or Windsor, and to have his own guards about
him. Upon which, lord Delamere very an-
Sily (a litlle thing puts hira in a passion) said,
e did not look upon him as hjs king, and
would never wore pav iiim obedience, and that
be ought not to be luce a king in one of bis
own bouses, and earnestly pressed that he
might be directed to go to Ham.
'' 1688 9, Jan. 25. The House was called
over according to order, wbidi being done, the
earl of Berkeley took notice tliat there was a
peer tliere who had never been intniduced, and
•o named my lord Griffin, who stood up in his
Elace and said, be was created by the king a
ttie before his going away, and had his writ
to come to parliament, and bis patent was at
the door ready to be produced. Vyon this
grew a debate, that no peer could sit till be
vaaiutoodttocd; it was aiiedged, that the ia*
jetty's Segeants at Law, and Chief Justice of
Chester, delivered in bis Writ and Return at
tlie tierk s Table.
I'hc Writ of Ceiliorari and the Return theroof
was read in hac verba,
L. H. SUioard, (George lord Jefferies.) Call
tbc lieutenant of the Tower to return bis Pke«
cept, and bring his prisoner to tbe bar.
67. o/'Cr.. Make proclamation.
Sefj.atArmt* Lieutenant of the Tower i^
London, return thy Writ and IVecept to tbea
directed, together, with the body of Henry baroa
of DeUuncre, thy jirisoner, forthwith, upfa
pitin and peril slum fall thereon.
Tbe Prisoner was broagfat to the Bar by tbs
Lieutenant of the Tower: ihe Writ and Retura
thereof, together with hisGnoe's PreoepC,&Bl
(be Return thereof, were read in h^tcvena.
CL^ Cr, Make prodamation.
Serj, ai Anns, Sir Roger Harsnet knight,
Serjeant at arms to our sovereign lord tha king,
return tbe Preoent to thee directed, togdk9
with the names or all the lords aad nableiBSB
of this realm of England, peers of Heary
baron of Delamere, by Ihae summoned, fbrtbr
with, upon pain and peril shall fall tbereoD.
troducing contributed nothing to the right of
peerage, and ^lat those peers who bad bsM
created by the late king in tha time of hii
exile, npou his majesty's KestoratioD came iats
ibe House of Lords without being iDtrodiieed.
TUe lord Delamere was most violent in oppos-
tag lord Griffin's being admitted ; bat on a
snddea my lord Lovelace moved on bis behalf
That he might be admitted, to the wonder if
every body, and in the same instant be and my
lord Delamere went from their places and ia-
t rod 1 iced him ; the first time, 1 believe, that
e^i^r a peer was introduced when tbe king's
authority was pretended to beset aside, and
tbe Lords did not pretend to be a parliament
1 cannot imagine what m^de tbe turn about
my lord GriOm, except it was that the Tiolent
[larty had no mind tti lose my lord Carteiel,
\vho had never been introduced, and of wfaooi
f helii've they were sure ; the duke of Nor-
thumberland fikewise had not been introduced
betbiie.
^^ Jan. 31. I/ord Montague said he was lO
perlectly. satisfied that the throne was vacant,
tbat he bad a dispensati4m within liim wiUiout
ihE help of one from my lord JefTcries or sir
Edward Herbert, and therefore did declare,
that from this day he looketl u|>on himself lb
be absolved from all allegiance to king James^
that he owed him none and never would psf
him any, and if king James came again he was
resolved to fight against him, and wonU die
sjfigle witli his sword in his band, rather tbsB
p;iy him any obedience."
Jn tbe early part of kiug William's raiga,
lofd Delamere' held tbe office of chaneelleref
tbb exchequer tor about twelve montba, aail
upon guittW it was craated earl of Wanii^
IsOy Buroet, toL 1, p. 668.
^^ntie Serjeant at Armi deliverefl m his Pre*
^^t aad retum at the clei ki table.
X. if. Stcscard. Reatl the Prece]itim4 ibe
i€tum. [They were read in hac verba. 1
HCf, of Cr. Make Vi 0 Yes.
^^fkrj. at Amu, O-Yea! AU dukea, carls,
YiicoUQts/aod barons of thia reidm of England,
peers of Heory Immn oi* DeJamere, wl»o» by
ccminoaQdmeut of tiiy U>r<l Hi^tt Steviard af
Sngland hi^ grace, \Tcre suinmoiieil to Appear
here thw du^, and are oow present in court,
answer to ^gur nauiei|Upon pain and pcnl «irili
" *l tUereon.
fbe B^cri summnneil were caHed o? er, and
lose thiit appeat'tid, standi ttg^ up imcorered,
answered tf> ibeir names, each malting a rcve»
rence (o the Lord lligti 8t€\%ard.
CL of Cr, laurenc-'e earl of Hoch^teif,
Lord Higli Trea&vr^ oi England.*
• Wr, Uatsel^ (Piccedenia voL ^, p. 3450
^ferts t(^ the number of great officers of the
crown and others^ devoted at the time to king
James, u \\(\ were summoned by Jeflcrica npon
thb Trial. Th^ managers for the Lonls iu a
Conference, in the year 1691, respecting a
Bill for itignUting Trials for Treason, [See 4
Hatxtil, Appendix, No. 3.] after stating, that
in \\\vi c:vs;' n( liij il Delainere, a great many of
y;^p Lor i I were not chosen, say,
** It tH .! r ' ;inn, whether that notile
lord had i:o'inc nit as he did, tf he had not re*
ceiveil suclr notice from the grand jury, and
^very tbijig had not been made out so plain/*
Indeed^ lord D^'l:'"^' *'' must have expected
the severest tr^att JelFeries, of whom
be had spoken i*n . . \ , in his Speech on
the Corruption of llic JuHges. Hee lord Deki^
mere's Works, p, 141, cilinon of 1694.
Of thi^ tiinl iiir John Tieresby sa^s: " My
lord r*. Imiin- It m tikis day tried by a particn-
lai ;ed to the lord high
sjr . 1 ^ I her peers. The crime
]|ijci to his charge was conspiriDg to i-aise a re*
hellion, and to fiuhrert the crovcrnmeut, in con-
iimctjon with the duke of ftlonnioulh and other
laltte »r;vitofi, tint! st> on. 1 happened to sit
lie ^M>le truil ; hut the
t)tj- .^t his lordship was
one ^u.\ioii, an uL*.si:iue lellow, who swore that
abciui tbe time of tlie duke of MontnuUth^s
lanrtnig, he was rcrouimtnded by tlie lortl
JJrandou to tlie lurd JJi^lumcrc, and discours-
io-""'' ^-'i- "' •'- ' r^,.^^..- MTKui
ti" iier
Hoi 11 to the
^b> ! SAW 1 It-
TV: 1 to rtti^e lU»tMJU nuni jo In
liM nid not efT'iHH iibowkm a
pr of a prt'iieut watit he s^
I 4Ai. What <hr r^btr w tui-
1 iv "t-'t* and b« )jt
> Mimouth had
I iht'iii, tic Oi'iij^nU^d uLuii iicJn ixotu lord
roi* XL ^
£, H. Treat. Here.
O.ofCr. Robert earl of Sand erland^ Lopl
President of liis Majesty's PriTy CouucU.
Lord Prcsid. Here.
CL of Cr, Henry duke of Norfolk, e^
Marshal of EngUnd,
D. of Nor/. Here,
CL of Cr! James duke of Ormond» Lord
Steward of his Hajesty^s Household. [0t
did not appear.]
CL ofvr, Ctwirlea duke of Somerset.
D. of Sam. Here,
Ci, of Cr. Christopher duke of Albemarle.
[He did not appear. 3
CL ttf Cr. Henry duke of GnM^on.
D.of Grqft. Here.
CLofCr. Henry duke of Beaufort, Lord
Presideul of yjfaHG&.—D. of heauf Here.
CL of Cr. John earl of Mu)grave» Lord
Chaml>erlaiu t^f bu |l£^esty 'a Household.
Macdestield. lord Brandon and lord Delamere,^
and t hut t(»ey wotifd he ready to rise tn Che
bhirej iM sooii as be landed : Others swore tha
the duke had written and sent mt^ssages to htil
Iriends in London, to give notice to the lordvj
to be ready, and that he was preparing (on
England. In the course of this trial, a poinl
of Taw never before heard of, was >i|artcd, by
the lord high steward, and the solicitor gene-
ral, naoaely, That though there were but on
positive evidence, in a case of high trea^iop,
the rest, though but circumstantial, concqr
therewith, it was sufficient to find a pristine
f;fuilty ; for example, supposing one man should
jcar another say, he intended to kill the Uing,J
upon such a day, and tltat another sv^ears hal
saw the party he in \vait to prosecute his iu«l
ttntion, the evidence h sufficient. But whaiJ
ever there might 1^ in this law, it was by niij
means applic^de to the prisoner i for he mtrsM
convincinjjjiy disproved the main evidencejSa^a
ton, and by the clearest testimony made it ap*l
pear, that neither the two gentlemen nor himM
self were upon the Kpot upon the 4th of June 5
that two of them were then acUially in Lon-
don, and the other sixteen miles otT: He urged
also, that if the man had sworn nothing but
truth against him, lie could be no lei^i** witnesfi,
bemg himself a prisoner, and taken in rcbeilion
when lyionmouih ^at* routed, and consequently
under a tera[»tiition to s%vear aguinsi hiui* to
save his own life ; ujh>h the whole he was ac-
quired, r%('rv one of the peers decl iving Inm
not gui liy . 'There were tliose w h t* condt-o* tied
the lawyers who had advised the king to bring
a peer to trial hjiou so sender a fuundafion ;
wfule others tdiserveil, that *»s the kmg had
eom milled him to prison, 11 was but u\ he
nhoiiia he lii.Mi-lii to a pubhe tnal, h>t it
^Uimhi bi 't been detanit^l When no-
rlnvff ft.H. Mtist him iMit wlien all
"^ler, 1 pU.aly ^aw the king was iu greai
with Snxton, and »he ui-ict day l»c de.
I IjiuI, He should be fir>t convicted f<»r per*
jurj , and Uicn banged toe high Uea»ou.** '
I
515] 1 JAMES IT. Trial 6f Henry Lord Ddamere, [516
innocent, as they will to conrict yoa if you be
guilty.
But, my lord, if you are conscious to your-
t-rlf that you arc guilty of this heinous crimey
give glory tu Gud, make amends to his Tice-
E. of Mulg, Uete.
CI. if Cr. Aiitifry earl of Oxford.
E.of0.rf, Here;
C/. of Ct\ Charles earl of Shrewsbury.
' E of' Shrews. Here.
CI. of Cr. Theophilus earl of Huntingdon.
E. t'f Hunt. Here.
CV. of Cr, Thorn ns earl of Pembroke.
E.of Pcmb. Here.
CI. of Cr. John enrl of Bridgwater.
E. of B I id lie. Hero.
Ci of Cr. Henry earl of Petcrborow.
E.ufPelerb. Here.
67. \'f Cr. Koht;rt earl of Scarsdale.
E. nf Scarsd. H ere.
CI. of Cr. William earl of Craven.
E.i!f' Craven. He-re.
Cl.'fCr. Uichard earl of Burlington. [He
did not appear.]
Cf. of Cr. L«»iii8 rarl of Feversham.
E. of' Feversfi. Here.
CI. of Cr. Georjje earl of Berkeley.
E.of Ikrk. Here.
Cl.^fCr. Daniel earl of Nottingham.
E. of' Notting. Here.
C/, if Cr. Thomas earl of Plymouth.
E. ofPlym. Here.
CI. of Cr. Thomas viscount Falconberg.
Zr. Palconberg. Here.
C(. of Cr. Francis viscount Newport, Trea-
surer of his Majesty's Household.
L. Ntwport. Here.
CI. if Cr. Robert lord Ferrers.
X. Ferrers. Here.
CI. of Cr. Vere Essex, lord Cromwell.
• X. Ctomuell. Here.
Cl.qfCr. William lord Mayuard, comp-
troller of'his majesties houshold.
L. 2Iuj/iu:rii. Here.
C/. 0/ cV..Geor{je lord Dartmouth, master
general of his majesty 's ordnauce.
L. Daitmouth. Here.
CI. of Cr. Sidncv lord Godolphiu.
L Coihlphin. rtere.
CI. nfCr. John lord Churchill.
L. Cliurchill. Here.
Then his Grace tlio Lord Hiffh Stcwaiil
addressed himself to the lord Dtlamere, the
prisoner at the bar, in this manner.
L. Il.Sttuard. My lord Ddanierc, the king
beini^ uc<(iiiiintcd that you siaud accused of
Hisu-TrcJison, not by common report of hear
gerent the king, by a plain and fiill dbcorery
of your guilt, and do not by an obstinate per-
sistintr in the denial of it, provoke the just in-
dignation of your prince, who has made il
appear to the world, that his indinations are
rather to shew mercy than inflict punishments.
My loni, attend with jpatience, and hear the
Bill of Indictment that hath been found against
you, read. Read the Bill of Indictment to my
Lord.
CI. qfCr. Henry Baron of DeUmere, bold
up thy hand.
Velamerc. My lord, I humbly beg your
grace would please to answer me oue question,
whether a peer of England be obligwlbytbe
laws of this land to hold up his hand at the bar
as a commoner must do P And I ask your grace
this question the ratlier, because in my lord
Stafford's case it was allowed to be the pri-
vilege of the peers net to hold up their hands.
L. H. Steward. My lonis, this being a mat-
ter of the privilege of the |)eerage, it is not fit '
for me to determmc it one way or the other ;
but 1 think 1 may acquaint your lordships, that
in point of law, if you are satisfied this is the
person indicted, the holding, or not holding, up
of the hand is but a formality^ which does not
signify much eitlier way.*
\i.l)tliimcre. I humuly pray joar {rraoe'f
direction in oue thing farther, whether J mot
address myself to your grace when I wouU
speak, or to your grace with the rest of these
noble lords my peers ?
L. H. Steward . You must direct what you
have to say to me, my lord.
L. Vclanicre, I beg your grace would please
to satisfy me, whether your gra<!e be one
of my judges in concurrence with the rest of
the lords ?
L. U. Stercard. No, my lord, T am jadge of
the court, but 1 am uone of your triers.*!* ^
on.
CV. ifCr. •* Henry Baron of Delanwre, tboa
Ktandest indicted in the county palatine of Cbsi-
ter by the name of Henry Baron of Ddamere
of>lere, in the said county of Cheater, lor
that thou as a false traitor against the most '
illustrious and most excellent prince James the
say, but by a bill of indictment found against second, by the grace of (iod of England, 8cot<
you by gem Icmen of gi*eat quality, anil Itnovin ' land, France and li-eland, king, thy natuni
mtegrity \utliin the county palatine of Chester lord, not having the fear of God in thy heart
the place of your residence, has thought it ne
ccssary in tenderness to you, as well as justice
to himsi*lf, to order you a speedy trial.
My Lord, if you know yourself innocent, in
the name of God do not despond, for vou may
beasMuredofa fair and patient heanng, and
in vour proper time a free liberty to make your
full defence: and I am Siire you can: ol biit be
Well convinced, that my noble lords tliat are
here your i^eers to try you, will be as desirous
and ready to acquit you, if you appear to be
nor weighing the duty of thy idle^nce, but
* See Vol. G, p. 1319, and the cases referred
to in the note tlieve.
f As to the difference between the couns
of pn>ceeding in the Court of the Lord Hkh
Steward, ami that in the Court of our Lord Uis
Kmg in Parliament, Sec the Case of Earl Fer^
rers, a. d. 1760, in this Collection, and the Rs-
fiort of the Conferences respecting the BSi
for regulating Trials for Treaioiu.
Wtu^ moved aod seduced by the instiiifiition of
ihe(tevil« the cordial love^ mni true, due, and
natural obedience ivliich a true uud fuitlifut
subject of our said Intc lord tbe kiui;, towardii
bim our said lord the kin^f, should ami of ri^ht
ought to bciir, ^v bill) y wiibdrawing ; and cou-
lri*iug» |iror kil uitbull rby nuj^bt iu*
tendiii|£ftbc ! common iJanquiility of
tli« kiiigdoui OS ' * ' V '
and disturb ; an if
•!it*l lord tboki*!^, %i.M.Ni. ,,.,-% ki...;iM-4„ L., i., in-
land J to slir up, mote and prot^urc, ami the
^ivi Tiii.nn.k ft ,;ur ^^\,\ lord *'" ' i^b - t'A'
111 intl, la SK
ail I loixl tUt' 1 ^
title, I iy nnmc ol the imfienitl
cruwn ' » oriiijtjiaiid to ib'pn^e uiul
drpfiiCt i&iH^ ouir aaiii |i>rd tbc kiii|^ to iU':Uh nrjd
Ijaal destruction to brin(f nnd put ; the four-,
tec'utb day of April in the tirrU ycarof ihe reign
of our Huiil lord Juin<^ llie 8«^cotitK no%v kttig oi
EnglnntI, Ace, aud di? ers oiber days and times
9M well before a« atter, at Alere io the county
Irt* Chester r' V tUltttly, iiialiciously, de-
viU.tbly» ai ^*ly, "ith ditcr^ other
false traitors ...,,. i., .;i» to ll" i-^^ r- 'HiUuown,
ibdst C4>nspire, corupa^Si r rl intend
our said lord ibe Liti'. i!i. (rurund
jiatural lord, noi fv' state,
title, |JOWcr, and - i^dom of
Kngland to deprive uud vaM down, but also the
aauic our lord the king tu kill, uud to death la
bnn(4^ and put, ami the ancient governinetit of
tbis kingdom of England to cbange, aUer, and
%¥ holly to subvert, and a ni inferable ^lau^^hter
(imoii^ tii« subjetus of our said lord the king"
ill ' tits \% hole kingdom of Eog-laitd to
c : rocurc% and inturrcrtion and rebel-
lion u^uKi^i our &anl lord the king^ within tbis
kiiii^iiom of Eu^Und to prociu'c anij asaht ; and
the same thy most wjrt- « *' r,M.^t ii»..»;,.ik .jj^fj
devilisb trea»on^ nnil irji^
ima^nations and pnrp' .-ijund
Wing to I'il'ect, thou the «atd lltnry baron of
Mamefe, an a false lraJ^^r, then and there, to
wit, tlie aaid foitrt^^nth day oi* April in the first
yearaboTesaid, ami divers othev days and tiinesi
at well before an alter, at iMcre aforesaid, in the
couniy aforesaid, ralsety* uulawfuliy, wickedly,
and ttflitoffntxly with Chnrlt* Cicrrard, esq. and
other fa Im* traitors to the jurorg imkuoun, didttt
J*;' '^reat f»uius of
Dt L iiuiiii.-i wi niix d mm, war
tui All tbis kiujQrdam of England
III ;,_ >-iii ihe city '*^ iWi^i.. n.
the COM cit^', 8^ ii
of oil! ; o! C best I
ill > r u(bre%aid, and all tlie
rn loe caille thou lielng to
eiiii ui.< , Mit/L> iuid iiurp rise, and into tby
po^v -i ;i ;»rid |ioi*TV to nliiuiu : JUid thjit thou
th«] s4i«l 1*1 f }i4*oc»'c afterwardH,
10 wit, I' s, in the f»r^t year
abovrwinl, t^U>*l\. itril i\Mnlly, ^vu kodly^ :itld
tratlorouxly didM i*ikc ujomney frrmi llio vlly
itf Londt^u'uutg M«;« al^fcsuid^ in }Uv county
of Chester aforesaid, thy ti-aitorous purposes
aforesaid Io fultil and jwrlect : and that ibou iba
said Henry baron of Delamere aOerwardu, to
wit, the fourth day of June, in the first y^ar
abovesnid, at Mere aforesaid, in the county of
Cheater aforesaid, in further prosrcuUon oi thy
unlaw'fu), most wicked and traitorous purposes
albrt'said, divers li^c peoiile and suhjecta of
otir said lord the king:, to the jurors unkiiowtt,
nith thee the said Henry baron of Delamere^
atid the aforesaid other false traitors to the
jurors unknown, falsely^ unlawfully, and trait-
urouily, in the war and rrl»< nir,Ti 'it.sv.-Nwl -ifid
i n t h y trai torou s p u r [>ost - I
adhere, didst excite, ain^ ^ ,>^
ag"aiiu»t the duty of thy allr^mnce, ag^ain^'it the
(leace of our satd lord the km^* that now is, his
crown and dignity, and again&t the form of th9
statute in that case made and provided. How
say est thou, Heniy bar on of Delamere, art
thou Guilty of this hii^h treason wbereor thou
standest imiicted, and liast been now amugn'd,
or Not Guilty ?''
L. Ddamcrc. My lord, I humbly beg tba
Indictment may be read again.
X. JLSicKard. Let it be read again. [Which
was done.]
L* Ddumcre, !^fay it please your grace, 1
lumihly bcj^ the favour to be heard a few worda
before I plead to tbis Indictment,
L, J/, Sfmard. My lord Delamere, 1 ani
very unwilhfjg to give your lordship any in-
terruption ; but according to the methods of
law, which must b« observed m your case,
as well as nil others, yoo most plead to the In-
dictmcnt before you be heard to any thiUj^ else,
L* Delamere. May it please your grace, I
have something to offer to your grace's and
tbeir lordships coosideratloD which is a matter
of law.
L. H. Steward. I know not what matter of
law you have to offer : if you have a mmd to
demur to the Indictment, you may.
L. Dclttmcrt, Will your grace p1ea*e to hear
what 1 hare to say ? \nd then 1 shall submit
it to your grace's judgment.
X, II.Stru<^rd. ] would hear what you have
to say, my lord, with all roy heart if I could;
but r must then pass by all the forms and
usual methods of proceethng, and that with-
out any advantage to you too, and that 1 sup-^
pose your lordship will not desire of mc*
Ask my lord, whether he Iks Guilty or Not
CJuilty.
CL of Cr. Mow saypt thou, Henry t>j^ron
of n- TiitTiet^, Jift thou Cuilty of this High-
^vhereofthou hast been iudicted, or
«v?
t. UtUmcrt. 1 l>cseech vour gm<^e to hear
me what I have to way ; I «hall not di taip
your grace very long, but I beg your grace t<#
licar me.
X. IL StcD:
k^jep you to '
law : thi*^ ■ "
in your i
whVtsoew- ^
•xf.. \,^,A 1 %.Aa
ij shall be lulJy hear 4.^
*ay.
519]
1 ^AMtS 11.
Trial 6f Henry Lord l^Utmere^
L Deldmere. If yotir gtace plea^ I hare
iomething' to say wliifrli concerns all the Peer*
6f Evjflatsd iu point of right,
L, H* Steward, My lord, you mast ehher
pleads or dernnr to thb indk'tinent, that b the
usual |»racticCi before any thing else cftu bo
ttont\
L. Detamere. My lonl, 1 ha've a plea to offer
to yortr yracc and my lords ; and it is with
r^ierence to the privilege and right of peers of
Enerland.
i. /f . Stmard, If you any plea to offer, it
iQtist be rec;eived, my lord,
L. Dfhmere. My lord, amidst the hnrdsbips
I hare lain iioder l»y tny frequent imprison jfients
•nd close continement
L. H. Steward. My lord Delamere, you
hiust keep up to the \e^\ method of proceed -
tagi: in caseii of this nature 1 would, ns far as
is possible for me to do, indulge a pei*&ini of
your quality, and in your condition *, hut vvithol
i must doVi^hi to the court, and not permit
any breach to be made upon the legul caur^e
of proceedings. You must [dead, or demur
to the indictment^ before you are heard to say
may thln^,
L, Dclamcre, Will your grace be pleased to
hear me tell yt*u my reasons why 1 offer you
li plea, uf thts*nalure'to the indictment ?
L. /L Sifuard^ Bly lord, if you hare any
])lea, rnit itin.
L, Dtlamere. Will your p-ace lie pleas^ to
accept it as I have done it ? jt may be it is not
80 formal, because I have had no counsel al-
lowed me to penise and sigu it. But as it is
I here offer it your grace^s consideration,
X. H, Statttrd. A\\ put U in. [Then it was
delivered to the ClerL]
X. H. Steward. Read it.
CL ofCr, The humble Plea of Henry lord
Delamere, to the indictment of Hijch-Ti eason
agnJDst him, now to be tried by the l^rd Uigh
bte^i'ard anil Peers here assembled.
" The said lord Delamere* savinij to him -
#elf all benefit of advantage of any further or
"other matter of exceptii^n to Hie generality, in-
certriinty, or iusufficience of the said iodicl-
inent, a'nd all matters and things which do or
may concern the same, fur pU^n hereunto saith,
*^ That he was by hij majesty's writ sum-
moned to thi;* present parliament, which began
the l^ih day of May last, jind attended bis
duly I here as a peer of this realm,
•* Ttifti for liigh- treason supposed to be
eommitted by him, during the sitting of the
same parliament, he was the 2dth day of July
last ix> mm it ted by warrant of the carl of Sun-
derland, one of his majesty's principal secreta-
ries of state, to the Tower of London.
** Thai ifie Peers in parliament assembled,
taking notice by his petition of the 9th of No-
vemlHT Inst, of hb being absent from hts at-
tendance in parhanieotj sent a messagre to \\u
wtieHty to know the reason why he the said
Henry lord Delamere, a fieer of that house,
wwi ab^ieDt trom his atteud&Qce.
•« ITpcm the 10th My i»f N<*refnker 1iisl,tlii
lord tn-. I ! ' *: ■ " xy% mMTWctI*
the sai s«lfl loftl T3l^^
Inmere \\tis di>s« i
liaraent, becatise I
treason, forlevy»ii^ i*i,. .ii^.i*uTi .
last snmnjcr, ttstilicd ui»on oath,
majesty had given i]irecti«»ns that lie
Iirocecded against witti all ffpeeil
aw.
** The House of Peer* not >
with this answer, the debate th«
journed till the Monday mortiinj; toUo^iug.
** On which day the lords resuming the iIn
bate conoeroing the lord Delamere nn^l tbf
kinn*B message; afler some debate, tlvc hr^
ehaucellor, by his majesti/'s eommaatf, gtiv« J
the House an account what prc»eeefiic<;s btl H
been against the lurd Delamere, sinee hni m«H
jesty^s Answer to their Address fxmotrm^ bilH
absence from the House; which w»s to HA^
effect :
** That tlie king had given order for a sp«^
prosecution of him: Thut the treason wlicivof
lie was accuHftd was committed in Chr^hlrw :
and that being a county palatine, the
tion ought to be there, and not in tin .
Bench ; as lE might be if the treaw^n lia'i bc«s
committed in another county : and that thefr-
foi^ his niQiesty had given order f(tr a ci>tii(Eiis«
sion of Oyer and Terminer into Cbeshtro, m
otdcrtn tfie findings of an Indirtnient
luni for the said Treason. And thai
mgly a comroifssiou of Oyer and Tcrnjin. r m a*
already sealed -, and if "the indictment be hm
found before the end of the term, the saiil lohl
Del am ere 's pra^^cr being entered tnihe KingV*
Bench, he sliould be baited.
** All which proceedings do more fnlfy op-
near iu the Journals ot the said House of J
Peers ; to w hich the said Henry lord Oeb<
mere doth refer himself,
** Afterwards, that is to say, upon t!i
day of [November] the taul parliain
prorogued by liis majesty tin to the teniL d;iir J
of February' next, as by the satid Joumafs ft \
doth appear.
** Upon all which matters the said Renfy
lord Delamere doth humbty.tenderthis hisph^ i
to the jurisdiction of your lordships in thii |
cause, and doth bumbiy conceive your lord*
sliips onght not to prncc^l in the tnal of \am I
upon the indictment of high -treason now bdbikv I
you : And that for these following reasons.
*^ First, Inasmuch as it apjiears by the i
petition of the said Henry lord Dtlamtre, afidl
the several orders of the lords, and the kiitg*t|
answer to the message of the lords thereupon ;.J
that the said House are already possessed of his j
said cause, which is the same supposed trcaiGnfli i
for which he was at first committed, atui whteh I
is the same treason for which he now stuntlt
indicted before your lordships. And fcjr lkf«
reason, your hmkhips, as lie fiouthly conceives,
by the law and cu¥loni of parlmmeiit, which is
part of the bw anti cu^tooi of the land, ott^bt
not to proceed against htm upon the said in*
I
t
Ml]
^ High Treason,
A, D, IdSlS*
rsfti
dictment ; btit bii said cause ought wliolly to
be dctermiticd and adjodg-ed in the «a»d House
of Peers, and not eUewbere, as in Uke caacs
lins been formerly done.
»' Secondly, Whereas it h the tigfht and
privilege of the pecm^ of fliis realm, ihat no
peer thereof inig-ht to he trietl or proceeiJed
against tor bi^h- treason during the continuance
W the (ladiftinent, except in the said House of
Peers, ami before the whole body of the peers
there : And wftcreas the aforesaid (jarbament is
now continuing in prorogation, until the tenth
day of February next aboYesaid, the said
Henry lord Delimcrti bumblv conceives that
hy the \m\t and custom of parhament hitherto
used, ivbich is part of the law and custom of
the realm, he ouj^tnot, nor can be tried liei'ore
vour Tordsbips fur the saitl treasons, because
the said putliaincnt is still continuing, and not
flitsolvcd.
" And lastly, Tlie said Henry lord Delamere
dolh fortlior say, That he is the sivme Henry
lord Delamei^ inenlir»ned m the eommitmrnt,
l^elitjona, messages, answers, and indictment
nmv read unto bim, afid the said treason for
which he was committetl, it is the same ^reason
»iientrone<l in the conioiitment, petition, mes-
sages, ansuprs, and indictment, as aforesaid,
^•■To wlikh said IndiclnK'nt he humbly
conceives he js not bound by law to make any
further or other Answer J*
L. Delamere. Jloy it plea»e your grace, and
you, my noble lords, I do not ofler this Plea
out of nuy diffidence or diiitrust in my cause,
nor out oi' any dislike I ha^e to any of your
lords bips thac are here sutuKioned to be my
triers ; I cannot hope to stand before any more
just and noble, nor can I wish to stand' before
any othtrs: but your grace and my lords will
pardon me if 1 insist upon it, because I appre-
Itcnd \i a ri;rht and privilege due to all the
|»cerage uf England ; which, bn it is against
the duty of every peer to betray or forego, no
it is not in the power of any one*, or more, to
wave it, or give it op without the consent of
the nhole body of the peers, everv one of theai
being equally interested. This," my l(»rd, I
humbly demai^d as my right and privilege as a
peiT ot' England, and submit to ibe direction of
your grace and my nobl; lords.
L, H, Steward, What do yon tay to it, Mr.
Attorney ?
Ait, Gen. (Sir Robert Sawyer.) May it
k*a^e your grace, this plea that'is here offered
►y ihisVrtlde lunl, is a plea to the jurisdiction ;
but, with suhm*s*«it»n, it needs very litUe answer,
for it hfts very httle in il : The force of the plea
b, that he ought to be tried by the whole body
©f the IloiiStf of PetTs in parliament, because
the parliament is stjil contmuing, being tinder
m prorogation, and not dissolvoir; and because
there was some agitation of the mattei* concem-
inir this prosecution, upon his petition, in the
Hous»e of Lords; and therefore it concludes,
that be ought not to be tried by your grace and
Uicte noble bnJt upon thii commissian, but by
t
all the lords in parliament* With submtaitoiii
my lord, this ts contrary to til the ancient pre*«
cedents, and against the known rules ot' )aw|
for the law is, if the king pleases to try a pee
in parliament, then the record may be brmigh
into the House, and there they proceed as \
other cases, and all the peers are'judges, Tim
it is in the time of a session of parliament ;
if ihe parliament be prorogued, there ore timnj
instanct^ (and indeed none totbeconlrurj')fhi
after a prorogation, the proceedings arebefoi
the High-Steward by commission. And as 1
the other part of the case, 1 hare this to say i
it^ that there i$ nothing at all depending in th
House of Lords that can oust this court of till
Juriiidiction ; Jbr there was not so much as an
indictment returned there, no, nor so much \
found during the session of parliament. A
tbe agitation was only upon my lord's petitioiiy]
and the king's ans^ver ; that he intended as]
speedy a prosecution as could be: I^ides, my
lord, your griK^e st?es it is a plea in paper and
in English, without any connsers hand, and
thertfore I hope your grace does not eifpeet
that I should formally demur to a plea in tbta
form, and that contains no more of substance in
it. ^ But I must desire your grace to orer-rale
it, and that the prisoner may plend in chief. ■
L. Jhhmerc, My lord, I humbly pray Ihat 'I |
may havecouhsel assigned me, to put liiy pl0
iuta form, and to argue the matter o) it.
X. H, Slemard. 3Iy lord Oelamere, 1 oitll
sure I ought, and ever shall be as tender of th«l
juivilcges of the peers of England, as any other '
person i^ hatsoerer ; For 1 ara cnnoerned, ss
well in interest as inclination, so to be, having
the honour to he one myself: But 1 know
your lordship will not think the privilege of the
peer is concerned in this matter; nor will your
lordship, I dare say, insist upon iDutters ihat
arc purely dilatory, if your lordship bef^tistied
that they are so t And therefore give me leave^
my lord, to mind you of a few things, whereby
jfmr lordship will easily sec, that the chief
things on which you insist, are ground c<l upon
mistakes. First, jou say, the I louse of Peer*
was jKisses^ed of the cause; which could not
be, and I will tell you why ; because there was
no indictment ever removed thither or lodged
there ; which plainly proves that the lordswere
never oossessed of the cause. Nor indeed wm
the bill found, upon which you are now arraign -
etl, till after the proro|Tation of the parliament.
!So that they could never come to be possessed
of this matter. These are mistakes in noint of
fact, and your lordship cannot but well know
them to be so. — And there is a great mistake in
the law, that during the continuance of a par-
liament (though it were prorogued, yet it not
dissolved) a peer cannot be tri«l but by the
House of Lords. This certainly is a 'very
strange doctrine;, and U not otdy against' tire
reason and methods of law, biit rotitrary eireu
to your brdship's own cyperiencf?: For your
lordshiji cannot but very well rumember, that
during the continuance of the par Han tout, after
a prorogation, the lord Corowallii wait tried
I
re plra'SB, T have
• rns all the Peers
H91 1
L Deimere. Tf ^ r
something^ to say \^
6fEr gland it) poini orn^^in.
L. H. Steward, My loi'cl, you mast either
jileorl, 01' (lemur to lliis indictmeot, that is the
uiual |trncticC) before any ihtag elae can be
llone.
L. Delamrr^. ^Ty lonJ, 1 hate a plea to offer
to yonr grace and my lords ; ancf it is with
rf-ference to the privilege and rig^ht nf peers nf
EriE^land.
L. II, Sien^ard, If you any plea to offer, it
Inust be received, my loriL
L. Drfamere. My lord, amidst the hardships
I have lain under by my frequent imprisonmeDts
iind close coiitinement
X.. H. Steward. My lord Belamere, you
hrust keep up to the le^nl method of proceed-
ings : in cases of this tialure 1 would, as far as
is possible for roe to do, indulge a pci'son of
*yoin quality, and myour condition ; but uithul
1 must do right to the court, and not permit
any breach to bo made upon the lej^'al cour»;e
ef proceedings. You must plead, or detniir
to I he indictment, bdbre you are heard to say
any thin^.
L. DfUtmere. WUl yoor grace be pleased to
hear t«e reU you my xeaBons why I offer you
k plea, of this nature to (he indictment ?
X. iL SUuard, 31 y lord, If you have any
^lea» piit itin.
L. DcUimere. Will your grace be pleased to
Accept it as 1 have done tt ? it may be it is not
BO formal, because I have had no counsel al-
lowed] me to peruse and sign it. But as it is
f here offer ii yonr grace's consideration.
X. if, Steu'"^-' ^ " ^ut it in. [Tbca it was
delivered to till
L. H. S(ez::n^^., K.„a it
CL ^ifCr. The bumble Plea of Henry lord
Delamere, to the indictment of Hi^h -Treason
against him, now tu be tried by theljord High
bieward and Peers here assembled.
** The said lo^^ Delamere, savinjr to bim-
•elf all l>enelitof advanl«geof any turther or
other matter of exception to the generality, in-
ceitniniy. or iusufticience of the said indict-
litent, and all matters and things whirh do or
oaav concern the snme, for plpu hereunto saith,
*** That he was by his majesty^s writ sum-
moned to thiJi pre^rnt parlianiinl*, which began
Ihe linh day ol* ^lay Ifist, and attended his
duly there as a neer oV this realm.
** That for jiigh- treason fiup(»osed to be
committed by hitn, during the sitting of the
same parliament, he was the 12 6th day of July
last cinnuiitled by wnrranl of the earl of Sun-
derl«ut(« one of lus majesty s principiil secreta-
ries of stnt4?, to the Tower of fjOitdon.
<• That tiie IVi'i'S in parlii i * " m1,
taking notice by hbt petition •-
▼emU'i Ust, of biH b'^ing nhs* m innii niKjit-
tcndimci- in porhauieni, neni a rnesassre to bis*
iniU'Kly to Lv'- 4- — ^:i why be the said
Henry loul 1^ .r oi^ that house,
Trial ^Henr^ LordHelameret
** V\Hm ihe inl ^ " rhrAer tol^llte.
lord treasurer it'|v ^ i v*^ aflrilMr'^ J
the said mt> _ * * ' - He*
Inmet^ was
hatDeiiti becausf ik^ ftt«_HUj t irmmitici "
ti*eQSon, for levying war against ibe 1
last summer, tesitilird upon o"'»f» ^^^^
majesty had ijiven directioti
Iiroceeded against with all ^i i i
aw.
'* The House of Peers not htln^ satisftrif '
with this answer, the debat ' ad-
journed till the Utonday mm
** On which day the lord de-
bate concerning the lord 1 th«
kind's message; after sotue dcfiale^ ihti R>fil
ehancellor, by his majesty ^s commamK ft/H
the House an occonnt what pifr ': 'had
been agaitist the lord Delamere, - iua-
jesty's Answer to their Address coticniiirts; hi*
absence from the House ; which w^s to' tbti
effect :
•* That the king had given order form
trosecution of him : That the treason 1
c was accused was committed in Cheshire ;
and that being a county palatine, the proseciw
tiou ought to be there', and not in the Ktng^
Bench ; as i! might be if the trea^m ba*! been
committed in another county : and that tb^rr •
foiTp his maiesty had given order for a cMiHms-
Kion of Oyer and Terminer into Chesbrre, ia
Older to the finding of an Indictment 3:^in<t
him for the said 1 reason. And V ' i -rif^^
mgly a Cummission of* Oyer and i
i already sealed ; and if ihe ri'
found before the end of thf^ i
Ddamere's prayer beinjf eiiiL.c.t ;„ „i^ 'uu
I Bench^ he sfiould be baile<l.
** All which proceedings do more fntfy -ap-
pear in the Jounials of tfie said House nf,
Peers; to which tlie said Henry lord Dela*
mere doth refer himself.
I *' Afterwards, that is to !my, ttpon tlip ffOfbl
day of [^No?erol»er] the Saul jtv
1 proroguetl hy^ his majesty timo ;
of February next, as by the said Juucu.i!5 it
doth appear*
I ** UpoQ alt which matters the ' : TV
lord Delamere doth humbly 4cnfli
to the jurisdiction of your lortl-stn^j.-. m lin*
cause, and doth humbly conceive yoiit lord*
ships ought not to pror-«.| ii^ tU.- t*iu\ of tutu
upon the indictment ni
you: And that for thL>- irun
*^ Fir^tv Inasmuch as it
petition of the said Henry i i
the several orders of the "lordit, uitil iUi*
answer to the message of the !or!^ fht*r»'
that the said Hou«te arc nlr*^
said cause, which ii^the sAm
for which he was at ftrst ccui
is the same treason for wi i\
indictHi iKrf ' ^
reason, yom
by the law ;
part of the l
not to prtK:4v^ ,+^.4.i.^. ^ui. lij.^ii lu
^•^'•--
SI^^Bl
1}
^ High Tre^fon.
duftiBfint I but Kin lAid crnise on^flii wboUy ta
' idg-ed in the siivii Hoin»e
vtliere, as in like cawa
; <CIVcr», iiti
■ "hof? *t^'-n *'"-—
IS it is the Tight antl
|frivii.^ of Ihis r€ftlm» fhnmo
piftf di' Iw Iried or proceetM
•guiiist t I durmg- the continiianoe
bi , except in ihi* sanl House of
P*H ilip uli^U' hrntv frt the peers
thue; 1 mentis
Ijolf coi tie tenth
rfay of Fcbiiiary nvxi nhuvci;;ufl, the Bdt'l
Henry \ort\ I/elamere humMy ioiiccivw that
liy the Uw ftnil custom of purlinment liitlRTlo
U«ed, which l» puri of the Iaw uiid cii^tnni «1
the ^ ' ^ 0 oijjHil not, nor can be trieil before
v<ir ii|is lor the said trcftsona, hecau^e
the n^Eio iiuiuament is stiU continuing^ and not
diiMlircd.
" And lastly, Tb^ said Henr>^ loidTleltimere
doth funhcT say^ That he is th* --^ry
loi^ Dflamei-e ^mentioned in the < nt^
fvetitions, messages, answers, and indictment
nuvp read unto him» af^d the suid treason thv
whit4i he was commttted, it is the same treasun
nientionetl in the conimrtnient* peliti«ri, mes-
■■tt^t ansiver<i« and indictment, as aforesaid.
^^H^^To utiitih »aid Indictment he titimhiy
^ftnccj>€« he is not hound by Jaw to make tiny
further or other Aniswcr,**
L. Detumerf. May it pirtsc yonr gfrace, and
you^ my noble UmU, i do nut oflbr this Pica
out of any ditiidence or diBtrnst in my cause,
nor out ot' any dishke I have to any of your
lordshipi; that are here sumHioneil to "be ray
trieni ; 1 cannot liope t»i stand before any more
juftt and nnhle, nor can I wish to stand before
any ciihers: hut your grace and roy lords will
nai'don me if I insist opun it, becau^ I anpre-
i»cnd it a ni>ht (uid privilege due to dl the
pcxTotife of Knglnnd ; which, as it is against
the duty ol" e^ ery peer to Ijctray or forcy^o, so
it id uot in iho jMrner of any oui', or n»<>re, to
wave it, or ijrive it u[> without the consent of
the whole body of the poers, every one nf them
beinjf equally iottreutcd. This, my lord, 1
hufhhly drinand nH my rig^ht and privilege ai) a
peer of Eno^laml, nnd nuhmit to the direction of
„ ^our grace :md my nobl(^ lords.
^B£. H* Steward, What do you tay to tt^ Mr.
^^■bruey f
P "
itt. Gen. (Sir Robert Sawyer,) May it
a«ie your trrnre, thi«^ plf^a that is here oflered
^ythi•» '
hut^ WlT
for it h:
19* thsLt
of ''
th
there >\
ini/ rl,
to the iuristljL'lion ;
i^ery little answer*
ni u_ : rhe force of the pleo
hi' trictl hv the whole body
^ncern-
■ -;, ..,- -,;- '.i. [^ .,;.-n>, in the
and tliprefove it roncludes,
to be tried by your grace and
I iocdi upOQ tbty comuiijisioni but by
A. D. !(»& tSM
all the lords in parliament. With 8UbfnieBJ«n»
my lord, this in contrary to all the ancient fire* «
eedeniji, and against the known rulef» of taw i
for the law is, if the V > - ..u..r.,. ,.. •, ,, ,. r-^rl
10 pnHiament, then ii t
into the House, and . ...:.l, jii ., : . . .n
other cusen, und nil the peers are judges, Thim i
it is in the time of a session of purhament ; bill J
if the parliament He prorogued, th/^re are fimnj^l
instnocx:^ (and indeed none to the cnutrui^) ih^T
after a proropition, the proceed ings are beforti |
the Htgh>$tew]ird by commission. And as tdj
the other pail of the case, 1 have thi.« to say tC^J
it, that there is nothing at all depending in tl>#J
House of Lords; that can ou«jt this court of thM
juriwJiction ; for there was not »o much as anj^l
indictment returned there, no, nor so much at]
found during the session of parliament. AB [
the agitation %vasonty upon my lord^s petition^.]
and the king's answer; that he intended as]
apeeily a proisecution as could l>e: Beaides, ray]
lord, your grace sees it is a ]rlea in paper and J
in Lilnglish, without any counseri hand^ and!
therefore I hope your grace does not esfffieotj
that I should fbruially demur to a plea in tbfftl
form, and that conttiiiis no more of substance ml
it. But I must desire your graee to f»f er-m^e ]
if, and that the pri5ioner may p!^ ^ f, I
L. Dtlamerc. My lord, 1 huii that 'I j
may ha?e counsel assigned me, lo pui my p^cm^
into fonn, and to argue the matter oi it. ]
L, IL Si e ward. My lord Delamerc, 1 oilil
sure t ought, and ever shall be as tender of tlitl
privileges ol'the peers of England, as any otherJ
person whatsoever : For 1 am conoertied, asl
well in interest as inclination^ so to he, haf In^l
the honour (o he one myself: But I knoi^T
your lordship will not think the privilege 0l*tli8 J
f»eer is ctincrrned in this matter; nor will yimt\
ontship, i dare aay^ insist upon Qiotters .thai
arc purely dilatory,*if yourloitiship bvsatisBodI
that they ore so r And therefore ^ire me leave,]
my lonl, to mind you of a few things, wherebjri
y<*ur lordship will easily *ec, that the chiefl
things on whicli you insist, are grounded upon
mistakes. First,' you say, the liouse of P^era
was poBsessed of the cause ; which could not
be, and I v>ill tell }ou why ; because there wta
no indictment CTeV removetl t!!i'*''- --^ lf>flged
there ; which plainly proves th . \^ ere
never i}0!@essed of the cause. - . . I *- n*
the bill fotttid, upon which you art? ti<
ed, till after the prorogation of the j
8o tl»at they could never come to he possessed
of this matter. Thetie are mistakes in noint of
fact, aDd your lordship cannot hut well know
them to be so. — And there is a great mistake in
the law, tliat during the continuunce of a t»ar*
liament (though it were pron»gued, yet if t
'lived) a peer cannot l»e trieil hut by thi
se of Lords. This certainly is a'ver-
Mtiiitge doctrine* and i** not c<u\y Hgainst i
reakfui and roi ihods of luw, but comrjvry vt
to v^""" ''^"'*''"^ '-'*""""* "•''"^"" r- r yonr<
lonf^l , tliat
dunu;. , !, after
^ prorogation y the lord iJorowalhv wai tried
I
523]
1 JAMES II.
Trial of Henry LordDdamere,
[5»1
before the High-SteuranI, and each a number
of peers as were tlien summoneil, upon such
a cominissioD as I now sit here by.* But in-
deed durini^ the sittings of the parliament then
all the peers are both triers and judg^es, as was
in the cases of my lord Stafford, f and my lord
of Pembroke \X ^^^^J being a court of judica-
ture, then actually sitting : and therefore this
plea is grounded as upon mistake in fact, so
upon a mistake in point of law. ' So that though,
as I said at first, it is both my duty and interest
to preserve the nrivileges of the peers, yet I
must take care ttiat no injury be done to the
]aw, and truly 1 take this plea to be altogctlier
ilikitory, and I suppose your lordship is satisfied
of it, and will notinsistupon it.
L. Deiamere. If vour grace please, it was
allcdgod and agreed in the case of my lord of
Bristol, that the cause of a peer in time of
parliament properly belonged only to the
House of LK>rds ; and that which possessed
the House of Lords of his case, was, as I ap-
prehend, no more than is in my case, a peti-
tion upon the account of being absent ; and
there the lords claim the cognizance of the
whole cause, aud nothing was done but in the
House of Lords. And as to the instances your
grace has meutioned of my lord Comwallis (and
there was another of them, my lord Morley §)
this question was never under debate in tliosc
cases : therefore I suppose they cannot be ad-
mitted as precedents.
L. H. Steward. But, my lord, it would have
l)een an error in the whole proceeding, if this
court had not jurisdiction : And sure thejudges,
who are always called to assist in such cases ;
and who in matters of life, even in the cases
of common persons, are so tender and careful
that there be no irre^ifularity in the proceed-
ings, would not have let things pass in that
manner had they been eiTuneous.
L. Deiamere. My lord, I think no other
precedents are produced but those two, and
there the question was never debated.
L. H. Stezcard. 1 only put you in mind oi'
those that were lately within memory ; but
no question of it, there are a great many more
instanct'S to be given.
Att. Gen. I pray your grace's judgment to
over-rule the plea, aud that my lord may
plead in chief
L. Deiamere. I hope your grace \\\\\ be
pleasefl to assij:n me couusd to put my j)lea
in form ; ami that I may have time for it, that
they may be heard to make a solemn argument
in law.
L. H. Slercard, !\Ty lord, if you insist upon
it, and think it wortli the wliile to have counsel
beard, we will bear them.
L. Deiamere. I submit to your grace, I only
offer it that 1 may not be wanting to the sup-
irt of the peers privileges ; 1 assure your
r-
• See his Trial, vol. 7, p. 1 13.
t See his Trial, vol. 7, p. 1293,
t See his Trial, vol. 6, p. 1300.
I Set bit Trial, vol. 6, p. 709,
grace, I speak not to put off the Game, for I
am willing to come to my trial, and 1 have
reason so to be, for I question not but to make
my innocence appear.
L. H. Steward, My lord, I tdl you what
my opinion of the plea is, but if yoa insist
upon It to have your counsel heard, I will hear
them.
L. Delawere. I have no counsel here, if vour
grace please to give vke time to send for them,
and that they may prepare to argue it.
Ait. Gen. No, my lord, if your grace will
hear counsel, I for the king must pray that it
may be done presently ; for a plea to the juris-
diction is never favoured, nor is the party to be
allowed time to maintain it, but he roost be
ready at the time it is offered.
L. Deiamere. Pray, my lord, how was it
done in the case of Fitzharris* ? His plea wis
a plea to the jurisdiction, and he had four davs
allowed him to put his plea in form, and to in-
struct his counsel.
L. H. Steward. I am not able at present to
remember what was done in such or snch a
particular case : But according to the general
method and course of law, the plea to the
jurisdiction is not favoured, nor time allowed ia
it, but the party must be ready to luainiain it
Atl, Gen. But, with submission, my lord,
that case of Fitzharris is nothing to thui nobis
lonl's case neither : There was a formal plea
put in writing, and drawn up in Latin, and a
formal demurrer joined, and tberenpon I did
take time to speak to it. But, with your grace's
favour, by the law, the prisoner must be al-
ways ready to make good his plea, if he will
oust the court of their jurisdiction.
L. H. Steward. Mr. Attorney, if roy lord
Deiamere does insist upon having his counsel
hcanl, it is not fit for me to refuse hearing
what they can say.
Att. Gen. But tliat must be presently then,
my lord.
L. Deiamere. It is my duty, my lord, t»
submit to what your grace and my noble lords
shall determine : I would insist upon nothing
that should of rend your grace or tnem.
yitt. Gen. If your grace pleases, yon ars
the only jud«>^c in this csm; in matters* of law :
For tbtije noble lords,«the peers, are only trieri
of the fart. Therefore I apfieal to your
grace's judgment, and pray for the king, that
this plea may be over- ruled ; it being vitions
aud naught, both in form and substance.
L. 11. Stfward. My lord Deiamere, I must
acquaint you, that according to the constitution
of this court matters of law are determined by
me, as the sole judge, while I have the honour
to act under this commission : But if yoor
lordship insist upon it, to have your counsel
heard, Go<l forbid that I should deny it you.
I will hear what your counsel will say; and
aflervvards I u-iil, according to the best of mj
understandini^, deliver my judgment.
* Sec his Case, vol, 8, p. 949,
525] M ^g^ Trc
L. Dchmrre, Mv lordj 1 have neter hi
any counael nssigtiefl mc.
L. H. Steirarii, My loid, if yOtt Have any
eouiisd ready* mc will hcftrthem.
L, Dt:}Qmer€r If yotir i^uce pleaisc to ajtsigu
me couirtel, and pvc mt* tirue lo *end for tbemt
and tbeiii time to prepare, I will obey vour
grace'Hdiret'lUiDH; but I could have none Wre
reiulyf bccuusc nojie wereasHunicd idp.
X. H, Steuurd, My lord, t, l»y tde
r eours« of la Mr, bare counsel ii _ <'U in the
I cue of a capital crime« till sucli time as the
m 1>w>rt, wKcrcfyou iire calk-d to answer^is appriz-
■■jl tliat there is some mailer of [aw in your
H^Pflt', thut may need counsel to he heard toin-
p^rm tlieir judgment, and v%liicb they may think
convenient to hear counsel to : for if in any
case, any prisoner at the bar shall before-hend '
be allowed to have counsel to stnrt frivolous
objections, such as thisi (vie all know that there
aa^itome, uho will he laaily prevailed with to
endeavour to jiick holes where there are none)
And to oiler mutters forei^j;'!! from the ihin^s
Whereof the party standi^ nciused and upon the
prisouer's hare retpit>st, counstd mu»t be heard
to every trivial point, the courts of law wotild
never be at an end in any trial, but some dila-
tory matter or other would l»e found to retard
the proceedings : but it does n£»t consist with
the jrrandeur of the court, nor your lonlsliip*g
interest, to let such a frivolous plea ioterfnpt
your lordship's trial. However, if your lord-
ahip h»s coiiufiel ready, t will not refuse to
hear ihem.*
L. Ddofiifia, My lord, T hope the privilege of
the peers of En^rinnd is not frivolous. 1 a^ssure
your (^ace, I do tiot otrer ihii* umtter, ast if 1
Ihouj^ht It more conducing to my intrrcst, than
my trial no^r. No, niy lord, it is not li«r my-
aelf, but tor the wlude body of peeni, of which
I have the honour to be a membf?r : And if ray
lonl>i here are satitt(ied it is not the right and
privilet;e of the peers, I anjuie^ce.
X, ii Stfaard. Pray» good my lord, do not
think that [ should ^ay any such thing, that
the privilf jjftf of iht? \weni h frivolous ; for you
do not hear me say, that this h ooeof thiirpri-
vilerai. Ati I wiiuhl iiiit wiltini^ly mistake you,
•o I desire your lord^^hip w<»uhl not misnppre*
hcnd or miiuepre>i'nt nie, I ^pok<* not at all of
tlie iM'iTB pi i* il«*;fi", but of \our plej* : 1 tell
your lordship, I think your plra isi not a gooil
plea* to oust thw court of the )uri«diction of
your cuuHe. But if your lord^hrp have a mind
to ban* yiiUf eouuiel heard lo it, to Ciod^s
name let thera come; they nhall he heard:
and ubi'o that i« done, tosiitisfy you the more,
I will ttd%it»e with ui> bii4« thf fudy^ctf, that are
tlievi^ to niiisiat, what ihev take tti h« tiie law in
the case; and, upon tlie whole, I will dt liver
inv jud^fififnt UH writ Hd I cau,
1^, Ihfamcte \ hnpe your (irace will be
p1ea»ed to udvii»e with my lords the peers here
preitent ; ii beiug \%\mi\ u point of privilege.
* Het> the Note to the Cuae of Doo PaAtateun
vol. ;», p» 4<Jd.
A*u. I686-
iS5
Sieward, Good my lord, I hope yoq
that are a prisi>ner at the bar, are tiot to jftv
me direction, who I should advise wiib, orho
1 shouhj demean myself here.
L, Delamert, 1 oeg your grace's pardon j^
I did not intend to g:ive your grace any direc«
tion.
L. H, Strjtard, My lord, I shall take car«
to perform tliat duty that is incumbent upou
me, and that with all tenderness to your lord*
ship t and 1 assure your lordship, V will have as
much care that I do not injure you, as I will
that I do not wrong my own conscience j and
I will endeavour to discharge my duty to both
with the utmost Bdehty,
L. Dclamcre, I humbly thank your grace j
I question it not: but if your grace please — -
i. H. Sicwfird, My lord, vou must pardon
me ; I can enter into no fortlier iuterlociitiona
withyour lonlship. If your lordship have any
mind to have counsel heard, and your counsel b«
ready, we will hear ibera.
L. Del^imcrc. If your grace require of met
produce counsel presently, and tht-y to arguei
immediately, I must acquaint your grace, I
cannot do it : for I have none here.
L. H. Sieietird. My lord, I cannot tell how^
io help it: the plea must tbeu be over-ruled
and rejected,
Cicrk o/ihe Cr. Henry Baron of Delamere,
art thou j(uilty of the high -treason whereo*"
thou staudest indicte<l, and bust been now ar;
raigned. or not guilty ?
L. Dttamcn. Noiguilty.
Citrk of the Cr. Culprit, how wilt thott
tticd ?
L. Delamire. By God, and roy peer^.
Clerk of' the Cr, God send I nee a \
deliverance* Serjeant at Arius, tnake prt
mation.
Serjeunt at Amti, O-yest If any one wil
give evidence on behalf of our soveteigu lord
the ki?Tg, ai^ajust Henry baron of Delamere,
the priKooer ut the bar, conceroing the high*
treason whereof he RtaudH indicted, let diem
come forth, and they shall be heard : for now
he standi^ at the bar upon his deliveranoe*
Then his Grace gave the charge to Ibc
Peers triers in this manner :
L. H. Stctrard. My lords, I know \'ou can-
not but wert remeiidier, what unjust ani insoletit
attempts were made upon the ri^hilul and un-
alterable succesjtion to the imperial ci^wo of
these r^lms, under the pretence ot that wliicli
ha;^ been so often found to be the occasion o*'
ret>ellioo, I mean, the specious pretence ot reli*
gion, by the tieree, froward, and phanatical
vseal of »ome members of the House ot *^oo^-
mons, in the last parliatucnls under the Ibte
king Charles the second, of ever-bl^««»l
tnemorv , Which, by the wondt^i t ul provideao**
of Almighty GofL not prev.-l^"./ the eUiel
contrivers of that hnmd viH ''^^* J5*^
monarchy by , wh.cl* tlK^ .^uld uoi
obtair* by a pi ^i» *e ot law *
A
mri 1 JAMES TL
And in order tbcreto, it is tno welt known,
kow ibey liaii scveml trea»otiat»le tul^etiQgs,
niaife bgki and riotous progresses itito severa]
parts of the kind's dominions ; ibereby t:ndea-
HOariAgto debflucb the miads of the MeUn^ean-
Ingt tboaifb uoH ary and ignorant, pait of tb«
king^s subjects.
But ii%&m their eril purposes it pVttsed God
mfeo to t'riLstratef by briDgiog to ligbt that
euned conspiracv iigaiti«»t tJic life of his ijicred
m^tfty kin|^ Charles the second ; aa also,
agniu«it tbdt of our dread suverdgo that now is,
whom Gofi long preserve.
T^iesc hellish and damnable plots, one would
have thought, could not have survived the ju^t
CtiOilcfDtiatioD and cjKecution of iM>uie of the
ebief* ocmtnTers of ih^ni ; i^spcsoidly conhidci-*
Riff, tliat afler it luid pleased Ahnigbty God to
lake txi biitiseir our late merciful and dread
aOf*Cf«igU| tio 604iner waa bia sacred majesty
tbttiUMris, seated in tlie rt»yalthrouc of bts
mccstors, but he madetthis utmost endeavours,
■olmily to convince the world that be had quite
lbf|pot lho$e impudent and abouiinubk iudi^ni-
liea tlmt had been put iipoD biui, Qnly for bcinf|-
tbe best of subjecU, and tlia best of bruihera ;
but did also c^ire fortli the mofct beni|^n asaur-
lUkces iniagHiabte to all his^ loviuyf people,
that be would approve biroself to be the best of
r
And furtlier to evince (he reality of these his
Ipracious aud heroic resolutions, he immedi-
ately called a parliament ; and therein repeated,
and solemnly con firmetl his former royal decla*
ntioufi ot having* a particular care of niaiutain-
inif our established laws and religion : Wi(h
which that wi»e, gnreat^ and loyal aiisembly
Mrerc so fully aud periectty satLjbcd, that they
thou^b^ they could not make- sufilcicnt returus
nf gratitude for such gracious and princely
cttodescenaioiis.
And yet, my lords, while the king and the
.parliament were thus, a» 1 niny say, endea-
vouring to out'do each oilier in expressions of
kindness, that wicked and uuuatunil rebellion
hnike out; ami thereupon tlie arch-traitor
MonmouUi was, by a bill brought into the
Jower house»and passed by the gfnerul consent
of both hoiLses, (and 1 could wuli, luv lords,
for the sake of ihat noble lord ut the bar, that
I could say, it had tiai^sed the coiiaeul of every
particular member of each laouae) justly at-
tainted of Ili»;b Trdtson*
hiy Uir(U, what share my lord nt the bar bad
to those oiher matters, 4 Viiust acquaint you,
Is not within I be cum|>a,ss of thi^ iudifUuent,
^T which you tirv to try hini» as Ins peers ; for
that iji for a Ux^aaon ailedifeil to have been
committed by him, in his mi^esly's rttign tliat
now is«
Give me leave* n
with a woni or two i
Ihat is, to let \' '
bar muy, wiii
ft-"' r -
. nU but
> ; and
at the
ilV to
Trial of Henri/ Lord Detamerff
be is aocnsed, if, upon the evidence that
be given you, you shall liud luui iiinoceut : So
I must tell you, i' ' ' .tfrec<«iifl
dcnce in your i^ nd good
alfeclions to btni^ lU^l >iiu v^iit uo^ iiy reason
of the prisoner's quality, tiud nearness to you,
as being a peer of iliis realm, acquil him if b«
shall appear to be guilty.
^ My lords, I have one thing further to umA
]r'our lordships of, that, according to the iiMial
Ibrois of proceedings in these cases^ if jouc
lordships nave any questions to propixmd^
wberetu you would be satisfied as to anv luat*
ler, eilher of fact or law, your lordshipn will be
plca^icd to put those questtoi;^ Ui uie, aod I shall
tjtke care to giv^ your tord«bi|)a (he beat iiftl^<
faction 1 can*
L. Iklamcrc* My Lord lligb Steward, (
beg the far our of your grace, f may \i^%% am^
to write for me*
L. H, Stcicard. Ay, by all mean^* Let mj
lord have whom he pleases t^ wriiP r.ir l^im
Mr. Htcordtr. (8:r Tim
it please your grace, roy lor! ^ i _
England, and you my noble ioril>
the prisoner at tlie bar : Henry b: 1 1 i
mere, Ibe prisoner at ihe bar, stands lun
for that he, aa a false traitor against the
illuatrimi^ and most excellent prince, our aoT««
reign lord the kiuipf that now is, not having tix
tear of God in hia Ueartj nor weighing tbf
duty of his allegiance, the 14th day of Apnl
last, at Mere, m the county of Clu *
maliciously conspirct with other fals*.
to the jurors unknown, the death and •
of the king : Ami for the better and iim
tual fulfilling of those his (reasons, i.r. r^^^.
14tb day of April, at Merc aforesaid, did niili*
ciously and traitorously assemble, consult, and
agree' with Charlc* ucrrard, ei^q. and otKcr
false traitors, lu raise ereat suii>s of luotiey,
and procure numbers ot armed men, to make s
rebellion ngain!»t the kiikg, and tlie city aad
castle 0^" Cbesar to seiae, witli ibe loagaicuMii
there ; and that afien^ arris, the 3?tti day of
May laiit, he took a journey from London ta
1^1 ere aforesaid, to accomplish his tieatiooabl^
intentions. And fiiriher, tf !
day of June, in furtlier pros
tomus purposes, at Mera arnMsam, im
tice divers subjects of our lord the kiivi
with him, and other false traitors, in S
son. And tliis is laid to be auainsi th«
his allcgtan(*e, aj^aiost ibe ptuo.* of n
reign lord the king, his cr^owii and di^
against the form of the statute in n> t t*r
made and proviilcd. To tb<^ indulTtirnt,
<i please your grace, and the rest of \Uv^r
lords, my lord Delamere, the \^ '^ •
bar, has nl^udt'd Not Guilty ; an<
lias put liiitiself U|»on his* peers. \\ c vltaU
Ibei^lore call our «itne«*»*K lor tlje king;
if we prove hbn
your btrdahipa ^\ i
*M\ lki» •*•'•'"
do not queatioo but !
s<n
^- myj
rny
529]
for High Treason,
pvisoQcr At tb« bar, fttauds tndictet) for cotii|>ir-
ing' the cleatb of his majesty, and iu order
tlieretitito to raise a ri'bf^Hion in tbe king^dom.
My lords, in provinjr ihis charge upon \xlm^
ire crave leare to give your ^racc and your
lordihipft some fihort account, by witnesses
tlial wc hare here, of a fomier desi(>fn thut was
previous to ttiis mailer, for i^birh ibis noble
Ji>rd stands here accused : And we eUaii not
trouble your |frace, and your lordihipi, with
may long evidence, becauae it has recei?ed
many salerau and repeated trials ; and, as to
tlie ^oofof it, has been confiroied by as many
▼erdicis. But we do it, rather to pre some
mccount, as an lotroductioa to a material evi-
deDoe, by shewinjf ^ that Cheshire, which was
the province of this noble lord, was one of the
si^g^ whi're that rebellion was principetty to
be acted ; and that, prt*jiaratory to i*, great ri-
otous aj»!»emb1ies, and tumultuous g^ith^ri 0^4*3 of
the people, i|vere setonfootby thec(>DS|jirators.
We slmJl thcti shew, my lords, that afttr ihe
late duke of Monmouth, (the head of the con-
spiracy) went bcyood sea, (especially afVer Ihe
death of the late king) frequtut messages, and
intercourse of correspondency, were sent and
held between bim, and the rest of his accoro*
pUces tbnmd, and iheir fellow coospirators here
Mi home.
And partictiTarTy, weshnll prore, that a little
before the rebels came over liigt summer iiilo
Ihe weiit, t\\e duke of Monmouth did di^^putch
oDc Jones, {who was one of the* most n«»usiijer-
ablc Rgaif* in this contrivance) to come from
Holland into England, to let his friends know,
that though he had intended to *;o into Soot-
land, and beq;in his » ork there, yet now his
resolutions were fur England ; where he
ho|»ed, his friends wouM be prepared for him*
And with this message and resolution of his,
Jones wiis to ac4]uai at some lords, (vvh<i they
were, the witness will tell ^our lordships, but)
among others, this noble lord, the pri^foner,
was one; And to acquaint them, hesides, tliat
he would immedLHtely set sail for England^
whither ho would come eo soon as he could
geL That he had a design to have landed in
P|l«»fafre, whefe he e3C(iected to be most readily
receiired -, hut finding that inconvenient, they
should have notice four or five days before-
hand, of the plnce of his landing, wdich he in-
tendeil should be in the wesL And, among the
directions that Jones had to give to those lords,
one was, that they should imme<1iate1y repair
into Cheshire, thet^ to wait for the news.
These instructions Jones had given him In
writing, hut seded up, with an injunction not
to open tliem till be came to sea ; and then he
was lo i^eruse that writing, and deliver his
message according to his instructions : And in
that writing was the name of this noble lord,
as one that was priocipally relied on to carry
on the rebellion in Cheshire. And we shall
giv4^ you an account, that the late duke of
Monmouth did look upon Cheshire as one of
his main supports, and upon my lord DtJaitiere
as a prtncipat assistant there.
VOL. XI,
A. D- 168e- [530.
liTv lord, this message was Joties to com*
monlcate to captain Matthews, and captaiitj
i>luuhew4 was to transmit it to this noble Ion),!
and the other pei^on.4 that were cwucernwl wilM
hini, Jones arrived with this message here iajj
Engftmd ui>ou the 27th of May : [And i musl 1
b^your lordships to observe the lime particu- j
larly] But captain Matthews, to whom ha
was directed, was not to be found ; nor major J
Wildman, to whom, in the absence of captain J
Mattiiews, he was to apply himself, as you will J
hear more fully from the wimess' sown mouth : J
Thereupon he sends for one Disney,* (a nam»u
which your lordships cannot but know, heij
being since executefl for treason) and oua^
Brand/ whom your lordshi|)s will lifcewise hejiri.
of; and they meet with the same Jones, wUa 1
communicates his message to them, and they^J
undertake to deliver it to the pertiuns couirirn-^f
ed \ caj^taia Matthews being out of town, autlr]
mtijor iVildmau not to he fouud.
Th«l very uight, my lords, this same Braodl
nnd Disney they meet this noble lord , my lord'^
Dclameie, at the coffee house, and give himj
an aoeount of the me.!;sages : And as soon a^fl
ever he had received this messi>ge, upon tliaf.^
27 lb of May, 01 ten of the clock «t night, doe
my toiil Dclamere di&patch out of town, xutliii
ouly one servant to Hlteud him, and two other ]
f) ieniiii that he had nicked up, or appointed to |
mcffl him, and go with him. 1
» ilh all these liAil^es of plot and design^]
does my lord Delamcre set out that night. It J
was the Kumc utghtthat Jones came to town ::]
It wa<i late ul night. He qhanged his name, f
and went by the name of Brown. He chosat I
to go all the by-roads, and would not keep tba |
high coummn road ; and went with ^cat £]>ee4 j
as \y^ cannot but presume according to tlig \
message delivered by Jones^ on pur|>ose to r&» (
pair into Cheshire, f J
And if your lordships please to observe, yoti I
will find several remarkable instaaces of ploll
and cnntrivance in the matter : First, That a \
nobleman, and one of so cousidcnihle a chamG<«
ter in his country, as ray lord Delamerc, should i
make such haste out of town \Mth so small ao- 1
equipage ai but one servant. Then^ tliatiiaj
should go so late at night: Again, that hsi
should go change his name ; and that should |
prove to be a name not casual lly taken up, mi
the first name be could think of next his own ^
but a D&me of distinctton, that he was known j
by among all hia own party : For all the com^.j
munications between the confederates and him. 1
were managed, as to himi under the name of -I
Brown. By that name several of the tat^l
duke of Monmouth ^s traitorous declaratiou^J
were sent for ; which were to be sent 19J
him, or by him into Cheshire t And
alone, with submissiou, my lords, would
a shrewd circumstance of suspicion, that
noble lord, such a one as my lord Delamere,]
should assume the name of a commoner, aud \
post out of town so ill accompanied, in a dja-]
* See Ins Case p. 405 of this Volume.
2M
SSI]
1 JAMES 11.
Ttial of Henry Lord Ddfltnere^
[5SS
gui^e, at that time of night ; especially the
parliaiiK-nt beio^ then sittin^j^, as it really was.
Bui besides all this circumstantial evidcucc,
we sha!l prove, by positive testimony, what the
hasty buKiuess was, that made my lord under-
tiilie this journey in this manner : For, having:
untice of the duke of Monmouth's intention to
land speedily in Engian<l ; when he comes
into Ciieshire, he actually sets about the work
to put that county in a forwardness to assist in
the rebellion ; endeavoured to stir up the people
to join with him ; and acquaints one that he
employed in that affair with the whole desi<;n,
that he was engaged to raise so many thousand
men, and so much money, to bo ready by such
• day.
Nor does my lord rest here : Bat after the
duke of Monmouth was landed in the west, to
corrupt the minds of the people, we shall prove
what discourses he had, (and tliese will testify
his inclinations to the cause) coDceming the
great victories he had obtained over the king's
forces, and how he applauded his conquests.
My lorils, we shall plainly shew you all this
that I have opened in plain ^roof : And then, we
shall submit to your lordships judgments, whe-
ther this noble peer be Not Guilty, as he has
pleaded to his indictment ?
X. IL Steward, Gall your witnesses, Mr.
Attorney : Who do you begin with?
An. Gen. My lord Howard of Escrick : VVc
desire he may be first sworn. [Which was done.]
L. H. Steward, Well, what do you ask my
lord Howard ?
Att. Gen. My lord, 1 call yea to give an ac-
count what you know of a design of an insur-
rection that was to have been ; and in what
Earts ; and what share Cheshire was to have
ad in it, in the late king's time ?
L. U. Steward. You hear the question ;
what say you to it, my lord ?
L. llouard. My lord, I am to direct myself
to speak to what was done in the late king's
time: For as to that noble lord at the bar, I
have nothing to say against him.
L. H. Stercard. My lord Howard, if I ap-
prehend 31r. Attorney aright, you are not called
as a particular witness against my lord Dela-
mere ; bnt only to give an account, what was
agreed upon in any consultations, where you
Were pref^ent, in the late king's time, about a
conspirao}' for an insurrection ?
L. HouarJ. If 8o, my lord, then I am called
not to iHi an evidrnce against my lord Dcla-
mere, bnt against myself ; tha^is, to rejieat
what I have often delivercil at several trials,
in the courts of justice ; and which 1 must al-
ways repeat, with shame and confusion for
my guilt, as 1 cannot but always reflect
upon it with sorrow and horror, but if it
be for the service of his Majesty, and this
konourirfjic court, lor mc so to do, 1 shall
endeavour to comply with it, and repeat it
as well as I can, by the assifstnnce of a broken
memory ; it being an account of things done
■evenil vcars past, and from a memory inter-
rujited Inr such accidents as are very well
known, and as have disabled roe to make a
more distinct and partieular relation before
so fipreat an auditory. Mv lord, I suppose, it
will be expected, I shoald begin my accoout
witli the occasion and ground, aod the time
when those things happened.
L. H. Steward. Take yoar own method,
my lonl. '
L. Howard. Truly, my lord, I am not able to
fix the particular time, unless you will give me
leave to reckon the years bv the sheriflfs of
London, as the Romans useo to do theirs by
consuls ; for I have no other means of com-
puting the eacact time.
L. H. Steward. Pray, my k>rd,tell the times
as near as you can, and use what helps for
your memory you think best.
h. Howard. My lord, it was io that year,
when Mr. Shute ami Mr. PiUdngton were
sheriffs for the city of London : And, at that
time, it is well known how great beats did
arise upon the contests that were in the city,
about ele(?tion of officers tor the year ensuing—
Att. Gen. May it please your grace, my
lord Delamere seems to be taint with staudinp.
If your grace please a chaur may be provided
for my lord to sit in.
L. H. Steward. Ay, by all means : Let t
chair be provided for my lord to sit down. Go
on, my lord.
L. Howard. My lord, I was saying, that thr
contest about the disputed election of sheriffs,
had occasioned such heats in the city of Lra-
don, and other places, that it was even beyood
the common expressions of discontent. I nev
nothing of any particular design there was in
hand tiU about six weeks after, when captain
Walcot came to me, a person I had knows
some time before, and upon discourse, ae-
quamted me, that he had found out that them
were some persons engaged in a considerabk
action that was near its execution ; and thai ia
order to it, he had notice given him to mahi
preparation, and thereupon lie had thonghtfit,
tor that reason, to witudraw from the plsse
where he did at that time lodge, (which was in
Red-Lion Court, in Fleet Street, as I leman-
ber) and betake himself to a private lodging,
that he might be the readier for action ; and to
put himself into abetter equipage for joiningia
the enternrize, he had bouglit himself a bonB^
and sent his son into Ireland to turn all he emdd
into ready money, and return it, that he i
be tlie bettei' r.hle to go through with then
takinijf- My lordi:, this was a great aurpiise to
me ; for tliou^^h 1 knew, as alltho rest of the
world did, that there were great discontenli,
yet, till then, I never had any intimation of
any particular design. I told him I was ffoing
into the country, but should be glad to know
how things weiit, and desired him to wrilsts
me, and gave him a little cabala orcyphvlo
disguise the matter he was to write about. Aid
when i was in the country, I did receivt aa>
veral letten which intimated somekfaingef a
design that was going on, and at last he ^Pilt
with some warmth to me, ef n
fir High TreoKon*
tmtlifr lo enter into action^ and oi'the rea*
uy * *tff»>i>i»"<l« '»!>' "- (for ti»e sJyle oi'
. for 6r> u RM the
.It truly 1 was
ovtv baity m
lr»tbrr cb'itc :
ik in ADil so macfe Uite of
lirb^s 1 ci^uli! lu ri'tanJ iiiv returu» ami
>t to towa iiU tliflt H^ecL which d^ter-
' V in Ijon-
-uld ^.. ,...^, ,.. w.. .. I .,..;»
p> lt» niy<>«^ti liuuftc^ but took u|> my lodg-
dt ^liU'-fnd, niitl Liv ilsn r. or tour ilaj'Ji,
the day canie for c - ' he new elect4xi
ntTs, aiui the filet- «. w lord mayor,
a& I uktf it» is on the day before Mi«
iLS-ddy^ i4(id &li<2haehTias-day. When
"WiiM tiveft I could oot 6ud there ivas
lion otVnteriug into any sort ofactioni
m\d tnilei:d there were (^reat Tuurmurinf^s
thr motuby ot all sorts of people, and ¥ery
Dgry warm s^jeocho, ' ' Iso ; So 1
^ht lhehuNinc-s> . iin)t% and
w^rcupon a\fay I w^u^ k^j ,,,y ,,»tii house.
liis^ my lordHf hus uogn the Saturday, afl I
^ncrtiber: T nun tltn Afrmilir mririviri|Tcaptiin
Kalcot cat ■ Ue iiii^ht
ivc lioole J iF.e in my
ifdes ; mad thtre he toJd tne, my lord
Imftohurv hitd wuhdrawn himself, aud that
'iieve UiiDtfft wcie inu vieat preparation
_ I. I •ttfkirtd him Ut tell me what it
i; ho answered uic, That he de^^ired to he
rutt^l in fhut, tor I mu^^t |vo to my lord
rv, w ho wou! ' " [It an aceuunt of
and wiili 1 oje, ray bird
V ^- ' ! 'icrled and ill
1 b> ' t i I .*j c^nctirreiice
i4-jt**i, ai. . iii._ reftMim nhy he
I withdrawn 1 ^l kqit himv.e)f iso
I tiJjl [Kit Liiikvv my lord
wttU me.
' b Hem him
me on purp}9e, and he was to brinijf
i;k toy aasuvT, whether I woitUl join or
I toM him if my lord drwrcd Ua »pt^
I Tn#», t wofjbl ^*'.*iil ujrfu* him ; sud
' ' inriedme
y wa* re-
juIl* jnjt'\\liir'J uKKit F*J«l«r
nc or A' i, m ti»c liouiie of one
\ ' ' s.ilutAtiou,
*•! m-catre-
'^ of the
iliHt ijreat
feiirt 0* II ' tiicijit^iiy ol our
, vUv iiiir and eqitjtl fih«*
t«|fefiM»s of }(rttin|^
ti i»rti Uieii ill ofiiets to
~^ ^ fk^ifu U» UaUi^I* lUi iUllMtAt, IIm «h»c4<Ml
sheriflk being eiteemed persona that would skc*
commodate themselves to the humour of the
court ; and now every man must be run down
for crimes that he was no way grviiNy of, if
. of the court did but poinl him out to
. jo. The iip prehension of this, he said
had made hiro withdraw himatelf, not knowing
how Boon he mi^ht be seized, bhouhl he ha?e
remained iu puldic j and he thoujjht the dun-
^e\* was aft immiuent upon, and likely to rc^h
to others, as weil as to him ; ai ' tuly to
myself; and thcrelure, he h'-^ nse of
•■ '"i%'<rr ought to puteveiy * in,
t value for his country, an < i -
^' T to him iu it, upon u.m.,^ ..... ui-
HB to ^ive some prevention to
lu b which were impendcmt over us,
and atened the destruction of all men
thai or the righltiofthe people; aud
thi^i he ttaid was his resolution.
My lord, in order to thi^;, he declared to m?
wliat nrepuratiuu^ had het:n made fur the rais*-
in^f or force for thii* puipuwe; he said, ihere
Were eight or teu thou^nd men (I caunot dz
the potticular number) that he was well as-
sured to have ready in the city ; that thert
had been divers horse (1 think about fourscore
or an hundred he named) that about a fortnjglU
before, had been, by parcels, drawn into the
town, without beini^ observed ; and these wer»
in daily expectation to go into action ; but
through the unhandiiome disappoiutment of the
duke of Monmouth, iu)d the other lonls that
adhered to him, who were to ba^e joined in
the actioQ, and have set the wheels at iiork iu
other partsb, he was left aiotte to do the whole
in bis (iro%ince of London, they beinjr tkot
ready to coucur according to iCeir engagfe-
ment : hut as he should havi^ the greater
danger, so be should have the greater glory ;
and he resolved to go through with the al-^
tempt, or perish in the execution. To all thi«
disi'TT'^' ^ -^:* r -"tih so auBw " 'V - ^--rc
of tf 1:1 told «i
burv, . ^. ..,w .... deny all tin .. ^ ^ *.. .>tj
true, as he had rtwesented them in his diti>
course; and that J would not distrust fits uiifrr.
ment no touch, as to huppo^e br v r
upon such an alfkir, wilbont due < n
of all llie circnmBiances requikite ii* it ; uud
sol would nut (|ue<ili()u, but there v^us such
prenarations, and that he had assurance of
Kueh a force, as be bad spoke of, wbejiever
lid begin any action. But I toM hiin
^ stock wiUi mc, and troubled me
VLMV umch : that, in a time of such ditiicully,
when the convenient hr l|i ot tlie niitiou was
all Ir'i'" • '..ri, |y jojy j,j |j,^ wofk, hcsboutd
Hati i{\ uoil r-ngugein such im enter'
piiZL, ,.. _-. , ..i4tion frttm thow other lords, of
uhime help there would l>e so much neitl- He
suid, he could not help U« they hud ap|»o(nte<l
tiiiH ttUMj and that, but no%v, when it ctiiiie to
the punb, they h>i^' not ready to do tIm it i»aiiv;
but the people weic now in «or' ,f
s'unethtng to he dotie, e«|)eci u^
ttiaii it HiMi iiUpOMible to reidriuu tht^in, m*i M
635]
1 JAMES n.
Trial of Henry Lard Delameref
[5S6
impossible to get those lords ready to join with
thcni. I tol(7 him, I was altotj^ether unac-
qnainled with the proceeding's in this affair,
and that all of it was wholly new to me : but
pray, my lord, said I, give mc leave to act
thai part in this business, that, I think, will
most conduce to the successful issue of it,
which is to be a mediator between you ; and
let me desire you to let things rest as they are,
till I have encfeavoured to create a better under-
standing between your lordship and those lonls,
of whose tergiversation you seem to complain.
Upon this my lonl was in a great heat, and
expressed himself with great warmth ; but at
last, with much ado, he gave me ]>cnnission to
go to the duke of Monmouth, and assure him,
andtherest of the lords that were concerned,
and tell them from him, that if they would be
ready to .take the posts that were assigned
them, according to their own former agree-
ment, and immediately enter upon action, he
would join with them ; but if not, he was re-
solved to go on alone. This was, as I remem-
ber, upon Tuesday, the second of October :
upon the Wednesday morning I went to And
out the duke of Monmouth, but coming to his
lodgings, he was gone to Moor- Park, where
when I came, I found several persons with
him : but after a little time, I separated him
from the company, and whispering to him, I
gave him to understand, how great a disorder 1
K)un4 my lord Shaftesbury in, and how great a
complaii^ he made of his being deserted by
him, and the other lords engaged with him,
and what resolution he had taken to aet u|ion
the work alone. <* My lord, says he, I thmk
the roan is road, his fear makes him lose his
understanding ; I do not know why he hides
himself from his friends, that nobody can tell
where he is ; but as to that which he speaks of,
of our foi'saking him, and breach of faith, hois
mistaken. For, it is true indeed, we are about
doing the thing, that he is so eager for, hut
we arc not for doing it so hastily, as his fears
])recipitate him to do ; and he must excuse us,
if we comply not with his humour, to hazarri
the whole undertaking^ by a rash beginning."
Upon that, I said to him. My lonl, 1 shall not
discourse the particularities of the business
with your grace; but this is all that I at
present a<ldress to your grace for, to be a
means, if I can, with your grace, as 1
have been with him, to procure a meeting be-
tween you, that you may settle it with one
another. ** With all my heart, says the duke,
pray let it be so ; for tliough my lord Shafts-
bury is an^y without a cause, yet I would not
have him lose himself in a temerarious under-
taking.'' My lord, said I, Iwi!! tell him what
you enyt^'Uidwill see if I can work him to a
Gomi*ltiincc with the proposal. The next day,
l>eing Vhumday, iny brd, I went to my loird
Shafteshury aguin, and reported to him the
discourse I hud with the duke of Monmihath,
and whnt answer he had g\^'^n to bis complaint
ofthdr deserting him. Hareplied^ '^Itwas
ftlsci they had poaitiyely engaged to be ready
by such a time, and had appointed the yery •
day ; but now they were off, and woaM not
tcA when they would be ready I'^aiul withal,
he told me, he greatly suspected the duke of
Monmouth to have a secret oorreapoodeBce
with the king. I then desired him, That he-
would please to consent to the treaty that isaa
proposed, and give the duke of Monmouth and
the kirds a meeting. He in great heat re-
rlied, no, he would come no moreet them.
t is strange, my lord, said I, that you ahoold
have sucli an opinion of these men, HMt they
would ^ abont to betray yon ; tbey aire not
men ot that size : but he persisted ia it, that
they had dealt perfidiously with him: For
after a positive agreement, wheo the thing
was brought just to the birth, they withdrew
their helping hand : but he was sure, id Loo-
don, he could raise a sufficient force to do the
work, and if he were but once set od borwv
back, he would head them himself : But yet
he was willing to put it off for a fortnight, or
three weeks longer, if they would be lure to
keep pace with him. With ibis propooal I went
the next day, which was Friday, to the dolre of
Monmouth, and had the same answer from
him, that 1 had before ; but withal, be bid me
tell my lord Shaftesbury, That he did make it
his earnest request to him, to give him and hn
other frienda a meeting before be CBgnged in
this business : For he found by hb precipiti-
tion, he was about to destroy bimselir, and al
that adhered to him. Thereupon, I eame te
my lord Shaftesbury again, upon the Satmday,
and when I came there after a long and im-
portunate urg^'ng all the aigtrnkenti I oooU
think of, I so far prevailed with him, that he
agnsedto give them a meeting, upon oonditiea
that it should be the next day : and became it
should be so private, that no notice might be
taken of it, he chose to have tlie meeting at bia
own house, where nobody would suspect him
to be, and whither he would be conveyed
under the disguise of a parson. I went back
with this message to the duke of Monmenth,
who did undertake, that the other lords should
be there.
L. H, Steward. My lord Howard, not to in*
terrupt you, did he name those other lords?
If he did, pray acquaint my lorda wbo they
were. . '
L. Howard. My lord Shaftesbuiy named mj
lord Russel and my lord Grey^ and a gnsl
many more that snould bear their parta. I
went to the duke of Monmouth, ,and tohibini
of it, I say, and he engaged, that tbey sbOnld
certainly be there : Hyt, upon the ftrnday
morning, when I came to the Templ^ there I
found a messaee left for me, that my krd
Shaflesbury ha«T received an alarm, Thattbsm
was some great Tories living near bis hone in
Aldersgate- street, who were continwdly spying
about ; and so great a company migvt mabn
their more than ordinary observatioD t- Tbil
this g[aye him such a jealousy, i
permit him to meet aonnding to iw
ment. Afterwards, I came to a better
6371
fif High Treason,
iltfiilin^ of lUe reafon of tliii, tnd found Uiere
wisglHiie6(lc9MS in iU iwhich 1 cnuhl n<»tcnrti-
JirelMtid bcfure : B^nafWr tlus tinir, I ncvrr
«w my loH Shsiieshury, for he remored Uien
to otber lo^lffingr. 8u thit wbal 1 now apeak
of him, IS only wb»t I had, liy hear- any, from
oll*er» : For I hftd no knowKxl((c of wliat pass-
ed, us to liim, but wh&i I luul from capt. WaJ-
cot : wlio told rae, That afier that, there were
•eftral dayei of nietiinj^ appointitf, but still,
f^om tinu; ti> Utne^ put olf ; but upon what rea-
•on, I cannot particularly remember.
Thifis all I know of my lord Sbaft^hury ;
and the laiier part i** wholly by hearsay from
Walcot. hut ? 1 f this a^j^jiaiioo wc
cotitiuiied nu till such time as
my lordNhukc^iiUty *..i.i..u«* ilolloud; where
he mhnrtly after died. And truly, I thoug^ht,
ml ih&C lirae, much of llie desig^n was quashed,
and laid aside : But, soon uUer Fer^uaon came
ovi*r; Hho when he came here, heg9.n tn re*
vive and qiucken the business, and push it on
to execution. I stpoke wtth bini at t^e One
Bell in the Htrand ; and there he gave me an
Recount of all the steps that had lieen taken :
He told me what preparaiions had been made
in the city, in general ; what to seize the gates
of the city ; what to potien tbemBelves of the
Tower : what to atUck tli€ gnnrda } and several
alli«r things, which I cannot now fto well re-
member, the tmpr«tsions of them bemg worn
out of rny memory, by length of time, and
other acciAtnLs.
This, in gpencFRl, w all that I cao say, as to
what was previous to the jjarticidar engage-
mcnt wherein I was coocjerned : For, ai last,
mfler many discourses^ the troubles and difhcul-
ties of Iba time in«reasiug, and the dungerK
thai threatened qs, as w« thought, growing
higher and liigher, thta gave an oocutiun tbr
our tiiutinif counsel, and entering inio a kind
ot Juncto ; which, I suppose, in foreign to this
iflkir bet*>r4^ your lontahips ; and thefeforc, J
tapfBKi would be likewise impertinent for me
la t^ble your lordships with.
L. H, Sie*i^(trfi. Mr. Attorney, do you desire
tny lord Howard should giyeaii accouatof the
otuer meetings, aod coaaal1»^oii»i at which he
WHS preKcntf
Ait. Gen, My lord, I think ther^ will be no
iseodof it ; and ) »tii unwilling to take up your
gmeo's time to no purpose.
L. Hotrurd, As f*tT that noble lord at the bar,
I know nothinq^ rut^certung liim*
L* J* Then, gentlemen, will you
hare h tny questions P
Alt ', tny lord.
X. /' My lord Delaroere, will you
aik hiiii uiiy tiiurc ijucstiofiM ?
L. DfUmerc, N's my lonl.
Att. Oen. Bofaii? my lord Howard goes, I
would aak him one <|uetlion in general, whe<
Ihir he knew of any dnigo of a ritiiig in
Cheilkire?
L. Hfmmrd Ko, my lord, I knew of oont
my lord Grey
[Which was done.*]
A. a 1686. [538
Alt. Gen, Then we de^^ire
may be sworn.
Ait. Gen, Pray, will you gi?e his grace an4^l
my lords an account, what you know of any^ f
designs of an insurrection or rebellion, uhc^it "
you were beyond sea, or before ? and who wcf^*^
engaged in it ?
L, Grey, HT y lord, I ara subposn&M hither on
behalf of the king ; and I am also suhpcena'd.
oTi behalf of my lord, the prisoner at the bur. 1*
do not know any thing that 1 can speak of m/
ow n knowledge, against the prisoner ; nor hfivtfr
I any thing to say, that I know of, that will
be (or his advanta^fe. But I am here ready to
answer siicli quesilions us shall be asked niep
either of one side, or the other.
Att. Gen, My lonl, the question 1 ask you,
is, What do you know of any design of %
rising in Cheshire, and when ?
L, Grctj, About the time of the election of'
sberifis for the city of London ; I mean, thal>
memorable time of the contested election^.
which furnished the world with so much dis^
course, and wm the occasion of »nch bcatu anil'
Hnimosities : About thut time, tJicdukcof Mi)Q«
mouth and my lord of .Shaftsbury began todi»«
Ciuirse about uiakiog ust' of that, as an oppor*
tunity lo accompii^h their design ; Ibr thejT
though the fermctit was so higli, Ibut meil
would easily be di'iipo<$eil to an insuri ecLion a
aod after many discourses to that purpose,
they came to this resolutiun, that they Wuulcl
apply themst^Ucg to make tvhat interest they^
could, to procure n rising in three sertTal parts
ot' the kingdom at onoe : one in Chcuhirei
whuher the duke of Monmouth was to betake
lnm«**if; anil there he advised by my lord
MuccU'fiHeld, my h»rtl Brandon, my'loid Dela*
mere that then was, and the pri^ucr U th#
liar, what gentlemen were proper to apply td
for joining in the design. The second was iti^
London, n hit'li Yfim assigned to he the pro
vince of myeloid of ShaftAbury, And llie third 1
was in the west« which was committcfl to th#|
care of my lord HtisseL The duke of Hlon^l
mouth did accordiogly go his progress rnt#J
Cheshire, as is very we\\ known ; and upon hii j
return was taken into cui»to<ly by the sn jeant 1
at arms i upon which, sir Thomas ArmMrong I
was sent post to town, to get an ILibcMy Corpus 1 1
and, withal, to deliver a message to me, to b#l
communicated to my lord Rusael, and my lori]
Shaftesbury: which me»«:a gc as near as I cam
remembcr,'was to tbi» efloct; That he had]
be*m kindly received by ihegt^tlenien of th«1
county, and bad disconrseil (Ik* matter witbi
Ihem, and found them all incUncil very much tt^i
hiisatisturtion : That U|ton hts being arresti-J^ I
he had becuadvi&ed to make his taciipe int<»l
Cheshire, and rise luimcrdoitely ; hot that htfi
would not do a matter of that great im|iOffanc«« j
wtlhoui the approKatioo of ht« fhrnds. I'hic
is all thitt I know of auy thing thai was de-
signed in Clieaihire.
Att. Gen. Ptny, my lord, what do you knoirl
of any meaiagva that captain MaiHieaa
6S9]
1 JAMES II.
Trial qf Henri/ Lord Delamere,
[340
JoDCsbrougbi over from HoUuid and to whom,
and from whom P
L. Grey: Sir, I viU give the best account 1
can upon the sudden, for I am not prepared to
giv»a particular distinct account, in r^^ard I
did not know it would be expected from me,
nor indeed that it would affect the prisoner at
the bar.
L. If. Steward. Praj, my totd, give my
lords the peers as succmct and particular an
account as you can.
L. Grey, My lord, soon after the late king's
death, the duke of Monmouth was at Am-
sterdam with my lord of Argyle, where there
was an account giTcn uf the design that was in
hand, of an insurrection in Scotknd, and the
preparations that had been made in order to it ;
and at that time there caiue oTer to Holland
Mr. Crag, that came as i was informed from
major VVildman, and his errand was to promote
and recommend a reconciliation between the
duke of Monmouth and my lord Argyle, who
till that time had acted in separate interests ;
and Crag then ga?e an account that means
and money were prepared: he had no parti-
cular message to the duke, because he did not
know of meeting him there at that time. The
duke of Monmouth, upon this encouragement,
did si>nd captain Matthews into England, with
a messajg^e to naaior Wildncian, wherdn he did
desire hun that he would procure a nneeting
with my lord Macclesfield, my lord Brandon,
my lonlDelanicrc, and I think Mr. Charleton,
and acquaint them that he had receiTed a full
account of my lord Argyle's affair, and the
preparations that h.id been made for it, and ac-
cor(lin$;rly he had ordered his own affairs to
join with him ; he Hkewise sent Cn^if with a
mcssa^^'u to the same purpose to other friends
ill J million, ar.il htr dispaicheil away one Bat-
tt'scomb into the West, to prepare things there.
When Crai; returned hack again to the duke,
he gave hiiu an account that n)ajor Wildina.i
had procured a meeting with tiiosp lords and
geniiemen, that I mentioned betbrc, who m ere
all of opinion, that the duke of Monmouth
shoahl Gfo i'or Scotland, for they thought that
his commpf there, would be the best service he
could do tiic interest at present, and tlioy should
know the ^^trungth of the enemy here, by tiieir
sending forces to suppress the rebellion there.
There was likewi^ a particular message from
major Wild man to the duke of Monmouth,
that he desired he woukl htm^ over with him a
broad soal to seal coinmisnions witli, and to
take upon him the title of king. The other
particular branches of the message 1 do not
80 well remember, but only this, he was par-
ticularly asked, whether the prisoner at the bar
was there, and he said he was—
Alt. Gen, l^y, my lord Grey, will you
give an account what you know of Jones's
comini^ over, and what errand ho wa8 sent of .^
L. Grey. Jones came some time ai\er Cxag
returned, and he gave an aocouot of otiier
things conformable to what Cnat had said, and
was flem back again to Englaiiu by the duke
of MoDineuth to gtfe an aocoant of lua being
ready to sail ; be gave him abo a lettar, tha
contents whereof I did not see. I had aooM
short account of* it, but whether it were writloi
to any partbular penon, I Ganwit tdl ; the
sum of his message was, that he wonht land
by that tim6 he could get thither.
Attn Geu. My lord Grey, you bad frequent
discourse with the duke of Monmoatb, and se
I suppose you can ffire an account who he kept
correspondence with, and upon whose assist
ance he relied.
L. Grey. I suppose few people will bslieTe
we were so weary of our lives, asui conoe and
throw them away with threescore, or a tot
few more men, (for it was but a very small
number we began with) excqit we had bad e:it-
pectation of good assistance. This I am soie
of, by all discourses with the duke of Moa«
moutli, he did depend very mucU npon
Cheshire, and was resolveil to nave landed and
b^gun there; but afterward he considered of
it, and thought better to send some sort of ex-
cuse ibr not landing in Cheshire ; that the per-
sons that were to be applied to there, being men
of mat quality and interest in their countiy,
and able to manage it, without his assistance:
but in the West, tne friends he relied on, were
not of that considerable quality, and therefoie
he chose to land there.
Att. Gen, What lords did he name, that hs
depended upon ?
L. Grey, I did name them ; my lord Mac-
clesiicld, my lord Brandon, aiid my lord De-
laroere; but I observed when the duke of
Monmouth spoke of his friends in Cheshire, be
did name my lord Macclesfield and my lord
Brandon as persons.
£. oi' Notlingkam. My lord Steward, I hnm-
bly pray this witness may lie asked, to whoa
that letter was written, that he suith the bie
duke of Monmouth sent liy Jones ?
L. 11. Steward. You hear my lord's ques-
tion, who did Monmouth send that let%wr by
Jooes to.J* .
L. Grry. My lord, I never saw the letter,
nor do I know any directions that were upon
it ; I al(\'ays looked upon it as a imper of in-
structions given to iiim about the time wbcas
and the name of the place, where Uie dnke
was to land.
Alt. Gen. We will give an account of thut
by Jones by and by, my lord . Now swear Nft*
thaniel Wade. [Which was done.]
L. H, Sieumrd. Wdl, what do yon ask tfaii
witness.
Att. Gen. Wade, that which I call yen Ar,
is this, to give an account what you k^qw sf
any design of landing in Cheshire, or dss-
where, and of Jones's coming over, and wM
errand he was sent u|)on ?
Wade, My lord, I shall give an aeconnt as
far as I know. AAer the death of Uie kn
king, captain Alatthews came teAi
and gave an account there, that the
Monmouth intepded |o be there shorUjt Id neil
and consult with my lord Argyle, irhniminj^
Aiyyie,
for High Tr€am
I f rvpj^ring fur tin expedition
HaiM) J fhcn*«i>oM 1 ww iiwit inlo
^riesUad to ckrsire my lunl Arg^rle to <x»mc to
A™»«*«».ii...o .,i.v4, h*. ,Ji^ - (ifiii there the
! coDJiiiU with him, unrf
t^Kit tit the juiinr llrne
'I .,11 ,i, ..,:'■■' .!',-;■ ,.,,,' ,iile
KngboHf ami to that cm), thfti he bbonld stsnt)
tliMe friLtiils lie had in Entrland, to be resdy
10 iBsbt'liiui when he came there; and in
or4^ tf> it, he did «end cn^itim] Matthews,
wfii- t other t hi njT*, waste go to ri\e
dul . ill C^heihire, imd amongst them,
my f to be one, and
ibt (I) to be ready to
aibi ^imuiij iiiud. AecordiD^lj
ca^k went * bm ft little alter liii
mii«^ a.^«T t ■ ^ ^"^'^ fVwr . -.ine over, aod
Ee CIMIM fri)i' m\ his bust'
oe»w&s to LSI i I ; ^, . a riders tandioff
I the diike ot Monmouth and mj lord
who were ihen at larae flifFerence;
Mid'to endenvom to n»Ak« them act jointly by
united couoset* A Httle after he waji sent
b»ek ai^iti into Etij^land to mtijur Wiidman, to
de*(ire hint to as»)i>il them witli Rome money ;
he went back agaiu, an<t returned, but brought
no fnoQey : thereupon be was Et^i a^ikiri Iry
ibedukeoi* Mootuoiith^ becu iiSttime
he wtA not sent by him. 1 !: nanded
was 6,000/. or ' ' and at mm lu- sent for
IvOOO/* Cm " wHli this answer, that
they could um u^^,^^ ihem with money, for
tbcy dill not know to what end they would
^l^miom'y but t" hicv kriitD, und fur that the
^^^^Kreri* %rv\i fnou^h already,
^^H^be was no It 'iiufy for that^ur-
^ Vim duke oi AioutiHiuth a while af^r
^^(l Mr. f nit;, a^nd pawned all the jeweN he
' hml to r \ , and fitted out three ships
for ihiM ien with urn munition ; and
tt^eme ha h;id |*romt^ my tord Arifyle to
I S^'MI^^^^"'^'^ *^ En|r(aDd, while he iu?aile<l
MhmBiI, he revolted to f^ with that pro vis'roii
^^Kviti iud detired by Utr. C>a^, that since
^Miie lords and geniiemen that were to assiat
Ibem, had tent do money, aa wat deaired of
thetn, and expected frotn them^ they tthould
now trouble tMmaelirefl with no further need-
1«ia oonsuttation* ; liut should repair each man
inlo bis own country, where thtiir mterc&t was
neatest, to be ready when be should come.
Aid in ordf r to thi«, the duke of Monmouth
NjiiaUlirem UoUund, nnd enme to Lyme,
an<1 ■ ■- . - -^ler
^'thnt hen^L ily
i'^''' ' ! ' ' ' I- tmudjj ; that ihj to*
*» to jret Gloiiee^er*
, tluii i ■ ;
rofS
}tWM «' ,:»iikir UT» iftsuiTPi'iMiii HI
iIm tame tim ^lit einlj joio logelher*
In purmianct' ,,- u, •sit^ wf f i-— *- KHn-
•ham^bndg'o, and thfreap.. s
iaiUile 0ot tp Jot
liimH^ecl upon ua, and we Xvn..
mi^ lli««npon thought it ailf ij
the king^a army join together, but to go hack
and en|^;nge those tliat were already come to*
g'etber ; and tliat ijaa the reaaon we did iioig4»
over the bridj^e.
Ait, Gen. Do you knovv anything of Jooea^a
comiTig inlo Holland, and fi^T what f ^
Wade, My lord, I had forgot tli^t ; a 1ittl#
befmx Crag's gmng last away, Jonea came
over, and hia buKinesa was to know why we
staid so lon^, for tbt? dtik** of Monmoulb'a
frienda iu England bad expected him long^ be-
fore, and he was dispatched away qaickJy to
acquaint them the duke was coming.
Att. Gen, Who was it he sent to, to ac-
quaint with his comini^ ?
Wade. To major Wild man, he waa directed
to major Wildman.
An, Gen. Who else were to be aoquainled
with it ?
Wude, Amongst the rest my lord Delaaiert,
my lord Macclesfield, and my lord Bramloii
were to be acquainted that be waa oominff , atoil
eTpccted that they atiould raise what forces
they could to assist him*
L. H. Steward. Will my lord Dekmere a^
him any questions 7
L. litlamcre. No, my lord, I nervr saw Kts
face before, that I know of.
L. IL Steward. Who do you go to nektr
Mr. Atti>rney ?
Att. Gin. Next we call Richard Good en ougkt
8wcar him, [Which was ikme.} That wlitori I, j
would know of you, Mr. Goodtoougti, iSf.
whether Jones were sent of any meetage, and
about what P
Goodenouf^ih* My lord, I was beyond sea
with the duke of litaimouth, and Mr, Jonea
was sent (among other persons) to my lonl
Delamete to give him notice that be should \m
ready agninstthe time that ihe duke fitioulil
land, and take care to secure himself ^ that he
might not be aetxed here in town, for we were
apprehensive such a thing would be attempted*
AtL Gtn. What direoliotis were given him
what lord* to go to f
Goodenougk. My lord, we were informed in
Hollaodi that my ford Delamere was one of
those lords that bad promised to draw bii
sword in his behalf
Att. Gen. Had you any discourse witlt
the duke q£ Monmoutti about it at any time f
GiXMUnough., Yes, I have discoursed with
the duke €kf ilonmouth several limes.
L. H. Steward, Ay, what did he say te yon
about it f
Cffodenovgh. My lord, he laid (among other
thingii) tbatlie bo|»ed my lord Delamere weal4
not break his promise wUb him.
L. I{. Steward. M y lord DclacDflvs^ wiH y 041
', my lord, J iieref sas^
ni*< JMCt" ULinrt, iitm I fcuow of, I Will a«ll
yort,
L. H. Sttv^ard. That is pretty stnin<^, so
fnmous ^iii under -sheriff vf London aud Mid-
dteiM^it', lis he was.
Att, Gen Then swear Joeat« [WMohwas
US} I JAMES n.
done.] Pmy will 3rou give an account what
Biewige you recctvefl from the duke of Mon -
moal]] upon your gi>\ng over into Hollnntl,
and to whom you were to deliver it» and what
lieGameot'it?
Joncs^ My lord, I went to Holland almul ihe
latter end of April last ; my goiag, as I ha?e
acquainted bis majesty and the cutinrit, waa
not only about this a^air, for 1 had other husi-
aess that called me thither, which I shall not
Qow take up your time, or trouble you with
repeating of: but having^ some knowL^i^from
Mr. Disney, that there were some intentionfi of
doing something-, tliougb it was commuEUcatefl
to tne but very darkly^ and therefore iliat little
I did knoWf made me the wit linger to go for
llollajid so aoon as I did : but before 1 went, I
had a mind to understand sometliini^ more of
ihe.deiiign ; and therefore the nig^ht before 1
went, I came to Mr. DiHney, and acquainted
him wiih my intended journey. Mr. Disney
4lid persuade me against it, thinking that I ha'd
Ifone upon this account, but I told htm the oc-
Trial of Henry Lord Det<tmere^ [544
for it with liirn : That Wihlman did ihiilk by
tying his own purse, he should tyr hi^ hjtnd^
but he should find it ahoold not be &» ; iiufi
some other words of the like nature h^ UMnl,
but this ia the aiihstanoe of v ' ,i f aiti. lie
guve aome acisount what yx had hn'cn
made; he atid money *vas set > ?»i».Trt, aod h« 1
had ht^n fuin to pawn all he had, to nuae what |
money was raised upon hia o%vn charffe. He -
ftsked me if 1 did think to return to England
shortly; I told him if he had unv aerrieetfr
command me for England, 1 had autne htlle
business to do at Rotterdam, which I would i
dispatch, and then I would perform lita com-
mands. He told me, he would k^ glad I did
return as soon as 1 could for England, and that
this should be the message 1 ahoukt carry to
M'ildman, in answer to the message he hftd
sent him, that he would come for JBnciand, and
he should either fight wiih him, or liaog iriih
him ; and that was all he bad to say to him. I
was coming away from liim, hut be alop|ied
me, and told me be would not hare me go out
caaioft, which he partly knew, why I went; 1 of town till he had s(»oke with me Ag^in; thit
hut withal 1 told him, I did intend to sec the
duke of Monmouth, and if he had any message
that he would have delivered to him, I would
dehrer it ?erv safely. He told me all the mcs -
«ige 1 should dehrer to the duke of Moo-
mouth, if 1 saw him, was to desire him to
keep to the lact conclusion, which he would
find in a letter that had been sent to him, and
Uiat if he had not yet received the letter, it
Was to come by the crop-halr^d roerchatit,
or the crop eared merchant, I cannot say
which, but I think it was the crop- hair' J.
t asked him what that message was, lest the
letter should miscarry ; for f told him, if I
•hould go to the duke of Monmouth^ anil refer | Brand, that when he heard the d
bint to a letter wherein a message was to be
hrooght him, which he was to keep to, aud
that letter should miscarry, I should, in effect,
bring no message at all to him. My lord,
thereupon he told me, that I should acquaint
the duKe of Monmouth that his friends in Eng-
land would not by any means hare him come
for England, but that lie should cootinue where
he was, and if he thought good to ^o fur Scot-
land, they approved of it. Thit is the sum of
tvhat he said to me^ as near as I c^an reroem-
Iter. When 1 came to Amsterdam, there was
t Mr. ^
- that was kiUed at Philips-Nor-
ton, went with me to tlie duke of Monmouth**,
And when be came to him« 1 acquainted him,
as Mr. Disney appointed' me to do, that there
WM such a letter sent by such a person, and
that such a measage wa» included in it. My
lord, he was in a great passion, I know not
how to express it, and seemed to be very much
troubled, and did reflect Tcry much upon ma-
jor Wildmim, and said, tliat was Wildman^s
work ; and he said, (as I chink that was the
word he used) Wild man was a villain, or to
that purpose : but withal lie siaid, it was ton
iato to send such a mcy>
mm roolted to come i
wantd vaka Wildiiaaii kaug^ iritu tww, ^r tiv^ot
was upon the 8imday : nccordtugly J did go in
the e\ening to him, and when 1 caroe, he lold
tne, he would hare me stay till Tue*dav mom*
ing, for he was going out of town, aud ifitcndfd
to be hack again at that time ; hut if not, 1
should receive from my lord Grey what he Ijad
to say to me. He did not come upon the Toes*
day, but my loi'd Cirey tlid come, and I think
to the best of my remembrance Mr. Crag wia
witli me; he told roe all he had t«i say was,
that the duke intcmled to be in E
nine day^, and that upon the Tik v
night atler I came away, the duke wLyuiu vtt m
England : and he hid me to remetnber to iell
1
landed, he should acquaint sir Roh^r '
with it, hut not till he was landed ; fot i, ,^..
they did think that be vvould join with ihon
when the thing was begun, yet thi^y ought ta
be careful who it was communicnteit gt» fnr
fear it should be discovered and disappwted:
this was all that I had in command far my lord
Grev. I came to Rotterdam, and ditptitchf4
my Lusiness tliere, aud would have cor^
but it happened there were no shi|j
for England, uor wauld there he any m a iurt-
night^s time ; tliereupon I returned lo Amalcr-
dam. W*hen I came back, I weot to seethe
duke, to give him an account how it hff|ipenf4
that I was not gone for England. The duke
told me he was glad 1 vias not gone ; fi^r nuw
he had a further message for me to c&rr^
he would have me stay two or thr^e <
town for it. I staid three days, and
again to liim, but he told me be \
for me yet; then 1 stiiid two ^
longer till the 21st of May toti
remembraace ; it was upon a Tli i
gave me the tnesaage that ^
Knglnnd. I catue to tiim <
' ' »:d me I should comu to i
ir of that day, and when
v« av » |>a|»er lay betora him ou th-
P45]
Jor High Treason*
Uhi! ' «litiij>; I ctinuot say
(O that paper, but tlio
cr U;.tl l;iy iKl'uti.' liim hii« not fniishrJ
m I i'»me in, an#i tUtt he Hhl not write
ll« I
I up nnd
llljriE'd the [>■■>•
^^B came to
t «rti sure ; but he touk it
fVire ifie. and when he \m*\
' ' ' ' List fOOtl
lUhews^
,, s*hi>
< n, and
!r5.nehj,
: e, with
- :^ : ■ iti.'U he
Ted to ^t out U|M»u Ti y
after I cnmc away, uht ^a
^ifday. His tohl me captain >Iaiil»ew$« was
ori*» TtfKt Trt th:ir pbcf* shrtf t^ rr^ namtil
U here
I be iw^uiy-
tice of it in
• rw in rcailifit^sy*,
Ij* ' was lutnlctl, ih<'y
ijii. ^iji^tsto a^isisl him,
I ti ri* «rt»:it message
ht' ... i ,.,..., what I was t(i do
uit: r he put into my hands ; thert-
m>' . , »& I rprneiiibcT^ he use<l the&eez-
' pr««^ion» to tiie ; 1 »lo hy yon tm pritiecs du hy
ibeir d.ihnirii1??, %vhrn they scnri tiicm out upon
I any consider r. I ' urn, which requires se-
I crecy tn (hr^ ,tpl ol' it ; they hare
theii (-oinmib4»ioa *Uii%erfil to them seaJetl,
I Mhich tliey are nnt lo brenk u{K*n tiM Ihry :ire
■^bpft, &>o here 1 ilefiver you your rnstnictioov
^^Hi^ up, which you are not lo opiMi till yuu
^^K«t M*ni nud t^hiD you have i>p<.Mie4l them.
^Hi rend what ix cont^Linetl in thc/iu, T wtttthl
^/Sfe ytir * <- '^- ...,,i *r...... . ••...♦.. 4i. .
^ lea, or '
pri>i^t| ui. . . .-. , -.. ... , .,,^, ,.„ . 1,,
Kapers touuil uboni you* Wy lord, I it*ked
ini, UvaU'^e 1 would In; ah punchitl in my
mesMi^c AH I couhl, wtmt those I lo
do wiMrn they aitiie out i»rtown, a\ y
slimifd comi* tlire^lly to him or no; he t«d*i oje
iio« not hot thiit thty should go into the coun-
try, iind A«'eiire thrir JntfTt's^t for him theitf. I
msketl him tlien^ if ca^itmn MAithi^us t»e out of
the Httv. nnd I he '^ ith
him> tidiill 1 ddi^' U
inyjiGlli' ll*'T ' ' r*
lurd* wfre p« \n
not a thinif t<» i v ,,- i,. ... .,i, . i (
then dc», jiiy lord, »uid I . il'cuptaiii h^
lof theway? You m»t^l not <|u i Jiat,
'"i 4m!, hut iV you meet u©t with MAtthewn,
to Wddman.
1^ loni, with ihe^r iftstrurtions (and thi* as
f an I run rrmemiH'r 14 ihe sum *fi afl he
I to ui*') I cume away» onil i:unjc to nea ;
i J w»i»oiit »t J«€«, Ihrokr open tin? Itlter
I had Q:ivi'fi me by the duU% and 1 mil
[you ^n neur ua I cun, what v^vrv Ihe rem-
" ' of il ; lit ' I in it to this effVrt :
rautitoti '.- IS the pincv to
kkb nJl arc lo 1 c^uri ^ lue peivoiv to be ftC-
roL. XI.
* qtialr' ^ ttie time of landing, are the
Mord M Id, the lord OnindOD» and the
* lord Di'lauK-ii^ ; the place to send the coacU
* to, is to Taunton, to Mr^j^vuge^s house at
* the Ked-hon. The place where the post ^usi
* appotufed lo returni was cnpuin ^lutriicws^i
* lodgincTt ftt Mr. Blake^s^ and he was to re-
* ceive the messag^e^ or if he did not, he wai
* lu yjipoujl one tlml should receive it ; or if it
' wei'ir to rL'turn lo any other place^ tliat wh^
* left to him to do as he tlioughi fit.'
And Ihiii wav all, as near us I can remember.
When f h»d si'eu this, I cani« to Lotidou, an4
bein^very weary and tired, when 1 came bona*
I wenttohed.
A(L Gen, Pray tell the court as near as you
can J what day it wa^ you cauie.
Junes. I came out of Holland the S'Zd of
Way, I came hurae the 57 th, and lookinj^ upon
my Almanack, I fmd thai it was ibr Wednes-
day fortni«fht before the duke bnded, ibat I
came. When I wa« come bome» I itcnt iiif
^Ir. Disney, and he came to me tmmeftiitcly ;
I told hi ml IohI seen the doke, and desued that
he would help me 10 the s(M?ech of rjtpiaiii
lMattheW-1. He told me he was out of town.
Tht'n I defHire^to speak wilti major ^Vitdman^
he told me lie *f»as gone out of town too.
Then 1 told him I must delit'er my message
to him, and I told this message as I have lold|
your I on ta hips before, and ihereibre left it to
him to C4)nvey it to the knowledge of tho*^
1ofd« that were concerned ; he did seem to be
unwilling:, and told me he did not know hoir
to couuTiuuicttte it to thoMi lords, and aiked
me why I would not *leliver the meflsa:je my^
stfIC I ttdit him I did a&k the duke ot 5Ion>
mouth that very question, whether I mighty
... J «,« hiid lorbid me, ^ •' "--f-'f^d me to dehver
ler to captain , or to majof
. uian ; ntid v^mi ^^^ absent, 1 kne^
not any to to but only to him»
in order to ^ aire of it.* He t^lj
me hr wotdd do what iie could.
Ait. Gtn, Pray who were present when
you hivd this discourse with Disney ?
J'tfies. There was niMie ptt^sent btit himself
then, for it was the Hptt time that 1 spoke wiili
him after I cume from HoHaud \ 1 told hAi|
there was a post to jjo to receive mtelHg^ence
which should brine notice of hi<i landm^
twenty- lour hour^ before it could l>c knowtt
at VVhitLdjiillf anil therefore it were fit they
Nliou!d be in a readinoisu He did wruple at
it, and said he did not know where to j|^el any
one that iould convey the ^iienjia^^e to thenii
but h«^ wouUI 4 to what he cot 1 id ; :ind cqn-
cfudcd to meet at xu\^Ut in SmitVfit Id, and hd
did8i> : and there were two |»^rM>n^ with him,
.>Ir. Crag, aud Mr* Lisle, and aitoiher, I think
his name wa^i Brandi aud he took me and
Bniml aside, and did a«k me where was thtt'
place that the post wjxs lo vfo. I tobl biiQ
wlif>r*% 7«o«l then he did diwcounie of the duke*«
t- I, but I memioned \v>\ 11/ of
M Hit only to Uium y ; ; ati
hour 5 laiit or tfaereaboutSj we pc^t wa. i saw
f JAMES n.
Trial of ITenry Lord Delam erf,
Mr, Disnpyonce afterwards, bnt what hn d'ul
with ibe ffics^'3g^e 1 eanotit tell, he gtivfc roeuo
•ccountofit; I did imlet-d beibre 1 went out
of lown see Ijttn at the Halt-iuooQ taveni in
-■ — I went ont of town, and met the
duke of Monmouth at Lvrae where he landed ;
and when I <^ame to iiim, I told bim what I
liod done with m v mcssoife, and how it hap-
petted Ihat I couli) nut ileliver it to the persons
that he had ordered. The duke told me that
he wa^ satisfied that I had dune what 1 couid,
but seemed to be troubled that Maithewjt wna
out of t6wn. And this is the sum of what
passed in ray knowled^ife, as Dear as I can re-
meraber.
Alt. Oen. Had you no discourse with Dis-
ney what he had done with the messag^e, when
you met at Smithfield ?
Jonet* No, because ihone men were strangers
to me, and I had ne?er seen them before*
Att, Gen, Hut atlerwanls had you nodis^
•wrse with Brand nor Lisle about it ?
Jonej. No, not at atl : Brand I never s|H>ke
)»ut<mcewith, and Lisle would not own that he
wai the man that was there.
i. H, Stru'ftrd, Hate you any more i|ue«-
Ijons to ask hint, IVfr. Attorney ?
Alt. Gen. No, inv lord.
L. IL Steward, My lord De)amerc, will your
lordship ask him any'qnestioos ?
L. Deiamcrc. No, my h'fd, I never saw his
face before this time, that I know of, in my lif*^.
£* //. Stezcard, Ttien who do you calfnext,
Mr, Attorney ?
Att. Gen* The tieitt witness that we call,
my loi-tl, is tStory. [Who was sworn.]
X. H, Steward* VVelj^ what do you aak
lumf
Att* Gen. Mr. Story, pray will von give an
account what notice you had of Joneses mes-
flage and what was done upon tt^ and what
discourse you had with any body concerning
my lord Delamcre, the prisoner at the bar,
md with whom ? '
Story. My tord, I had notice of It by one
^- that lived at Bishopsgfatc, w ho told me
the 2Bth of May last, that 51 r. Jones was rtturn-
«d home from ijolland upon a message from the
duke of Monmouth, and that he had agretd to
^ to Taunton, and there he ejcpecled Mr. Dare
or Mr. Williams to bring an account that the
duke was lauded ; and be said that Mr, Joneses
mcMage was delivered to Disney , iu the ab-
•eiioc of captain Matthews^ who was out of
towii^ that afler Disney had receiveit the
mestage from Jl^^es, he went and had some
diicours* with ray lord Delamere, and that
ihfit nt;j;ht my lord Delamere went out of tuwn
witli two friends, and went a by-way through
£nfidd chase, towards Hatfield
Ait* Gtn. Pray when wns it you went out
^Iciwn, 8lor> ?'-^Stt/ry. The QQXU of May,
Ati, Gen. Who went out of town with you ?
Stafy, Nobody, btti 1 otertook Mr. Brand
L, H Steward. Pray rtjrtlt wh&t it wa« he
|uatiiled you with.
^7ory. Ue told m* that the day ^ ^ Tone*
was reiu rned home w it b a sneBsag ( i o&dt,
which messaye was to be deliven^o u* i itptain
3Iatthews, but in his absence Disney received
it ; and that evening at^er he hud discourseH
with my lonl Delamere, my lord that nighlT
went out of town, and two triends of mioe be
said went with him* and did conrey him away
by a by-way through Enfield chase towartk
HattieUL
X. H. Stenard, Have yoti many more qtie«*^
tions to ask him, Mr. Attorney f
AttMeiu Pray, Sir, had you any diacotirie
with the late duke of Monmouth M Sbeptoo-
Alallet ? and about what f
X. H. Steward. By the way* trtendi wberv
is that Brand you speak of?
Story, He ts killed ; I did not see htm die ;^
but he is said to be killed at Remsham bridge, ,
Att. Gen. Pray what discourse had you,
with the late duke of Monmouth about tiba
prisoner at the bar ? •
Stonf. I heard the late duke of Monmuutti
say at Shepton-Mallel, that his great depend-
ance was upon my lord Delamere atui hil
friends in Cheshire, but be was afraid tliey
hud tailetl him, or betrayed him, or some sudi
word lie used \ and he said he could have been
supplied otherwise, but that he had a de|ieiid-
ance upon them,
Att, Oen. Pray what office had yoa ttodef
the duke of Monmouth ?
Story > I was com mi !§sary- general.
Ait, Gen* Well, we bare done with yon.
X, H. Siewnrd. Will you ask him lajr*
questions, my lord Delamere ?
L, Delamere. If your grace pleaae, I haft
a miestion to ask him.
X. H. Steward, Ay, with all my lieart;
what miestion you will, my lord.
h. Delanpere* My loni, 'i d«sire to Im^ir
whetl*er he knows one Huron ?
X. H. Steward. What Saxon dm« yoor
lordship mean, one thai was in lU
L. Delamere* Yes, one Thont;i
♦SYory. Yes, my lord^ I knew hiui a j.nsoner
in Dorchester prison, where I was a prisoner
myself,
X. H, Steward. Has your lordship notliiiig
more to ask him but that ?
L. Delamere. No, my lord
Ait, Gen, Now, my lord, wt* cull sAmi^per*
sons to prove, that that vers
came to town, my lord De(;ir i ^
at the bar goes out of ton n without any
yaut, chany[es his nume, and goes a by -way:
Swear Vaux and Ediin. [Vaux was swoni.J
X, H. Stetturd, W^ell, what says this man f
Att* Gen* Pray give roy loots an account
whither you weut out of town with my lord
Delamere^ and when f
VftHJt. My lord, perhaps I may not remefl»*
ling
ber the very words that f g-^i'
before, but I will repeat tli*
Attn Gtn Ti .w rn.t so 1....^
may eatity t < >urself i y
waa it t&Mit un jiu licktuei*i4ri
vidrcioeinl
549]
Jbr Higk Trfasom,
A. D. 1686.
[6*
VauT, The HJili d«y of May, and I went
oat of to wo the S7di.
An. Grn, You are upon your oath, anJ
you must rememtier you am sworn lo tetl the
truths tbe whole truth, and nothing^ bat tlie
Irutlt.
Vaujc. Sir, I shall take care to do tt as far as
I can renieinh»er«
Ati* Gtn, Whither was ittbat he sent for you?
VauT. To the Rummer tavern tn Uueeo-
fttreetf and the next ilay I weot out of town
with him.
Att. Gen. What day of the month did you
go out of town ?
Vaux. It was the 27th day of May.
Att. Gen, What time of the nig^ht was it
you went out of Loldou ?
Vaus. ft was about nine or ten of the clock.
Ait* Gen. What name did my lord Dela-
niere tlien g^o by ?
VaujF, He went by the name of Brown.
Att, Gen, My lord, I ivould acquaint your
grrace, that tbiii is an unwilhn|;r witness, and
we are forced to pump all out of him by ques-
liooa*
Vatix, I do tell you the truth of all that 1
know.
Att. Gen. How far did you ride that nig^bt f
Vttut:. To Hodilej^doD.
Att. Gen, What time did you zet tbitber f
Vqu£. About twelve of tlie clock.
Att. Gen, Wbither did you go then ?
Vauj, We went lo HKchin, and I relumed
hack agulu the next day.
Ati. Gen* Whither was my lord Deluniere
going then ?
Vaux, To see his son that was sick in the
(K»uutry.
L. H. Steward. What 1 he told you so, did
be?— Fattx. Yes, my iord,
Att, Gen. What other company went with
your
VauT, Two gentlemen, the one I knew, tlie
other I did nut.
Att, Gen, What was tbe name of htm you
did know i* — Vaujr. It was Edlin.
Att^ Gen, Pray was that ttje direct road to
Cheshire that you went ?
Vtiur. We raa4le it our way.
Att, Gen. YoU made it your way; but I
lukyou whether it be the best way ^
Vaiu. It is the freest road from dust.
Att, Gen, But I ask you a plain ciuestion,
upon your oath is it tbe best way inio Cheiibire ?
Vauj, Tmly, my lord, I do not know tliat.
L. H. Steward. Pray who gave you direc-
tions to call my lord Debmere by the name of
Brown ?-*VauT. Himself, my lord-
L, H, Steward. Was that the hrst time my
lord went by that name, as you know of J*
Vaux. Vcs, my lord, I never beard that be
was called by that name till that tinif .
L. Deiumere. I was called by the name of
Brown at that time^ and 1 will ^ive yunr grace
mn account by and by of the rea;&on of it^
L. H. Steward. Rm your lordship any
qucsuoutoask him?
L. Detamere. No, my ltird<
X. //. Sfes^ard, Then go on to the next
Att, Gen. Our neact witness is Edhn, pray
sw*far bim, [which was done.] Pray will yoa •!
give my lord^i and tbe court an acoouni whi-
ther you went >iitli my lord Delamere out of''l
town, and when ?
EdlifL Tbe 27th of May last, I was at thu^
Custom- house, and there came Air. Vuitx, \
the gentleman thai was here last, who trdd m#<
he was ij^mtxg out of town as far as Uitcbin,
and aske<l uieto go along with him ; he saidt]
be was to go that evening. 1 asked bim whal
time be intended lo return? he told me, b«
was resolved lo return the next day. I told
bim, then I would go along with him^ and w«
up[i(tiuted the place of meeting to be at lh«
Bell' inn in Cole urdu street ; when 1 ct
thc^re^ he said there was a friend that '
going along with him, one !^lr. Brown; wfl
went as far as Hoddcsdun that eight.
Alt. Gen. Pray, Mr. Edtin, will you look,'
upon that gentleman that stands iit the bar ; is ^
thut he that went by the name of Brown ?
Edlin, Yen, my lord, that is be.
Att. Gen. Well theti, what time did yoii i
set out ?
Edlin, It was very near ikine of the clock.
Att. Gen. Pray xv hen was it that Vaux met
you ut the Custom-house ?
Edlin, It was about ten of the clock in ths \
morning.
L, H. Steward. Pray did you hear or know
upon the road, whither he was going ?
Edlin, My lord, I did never see my lor4|
Delamere before in my h*e.
L, H. Uteward. But did not he.tell you
he went along, whither he was going ?
Edim, He said be was going tor Cheshire ]
to see a sick cbikL
Att. Gm. You say. Sir, that jo% weal]
tirst for Hoddesdon ?
Ediin, We did so, my lord.
Att. Gen, Pray, Sir, how long were yoiil
ridinc^ that, from the Bell in Coleman -street tv I
Huddesilou ?
Edlin. It was three hours I IjclicFe, or aboat'^
three hours and a half.
Att, Gen, Then you rid hard out of town*
Edlia. My lord, »t was tow urtU nine oflh«!j
clock when we got on horseback, and it
about twelve or a little more, when we came j
to Hiwldesdon.
L, B. Steward. Well, Mr. Attorney, is thai 1
all you have to ask him?
Att, Gtn. Yes, my lord.
jL, H. Steward. Will you ask him any 1
questions, my lord Delamere f
L, Deiumere, A'o, my lord.
Att, Gen. Then, my lord, to confirm thji]
evidence, and to explain it, I shall call you %\
couple of witnesses to prove that this gentle* I
man went by the name of Bro^n in the i
of tltose that were engaged in this busiUk^.
that the name was known as his name by all
tbe party, and called so con»^iantly in their
letters Mm oiessageik Swaar Traoey Pauuc*
i
851] IJAMESn. Trialof Henry Lard Dekmeref [5S2
[Which was
foni, and Thomas Babiog^oo
done]
L. 'H. Steward. Which will you begin with
first? ^ ^
Ati, Gen, We be^in with Paunceford.
Prey will you g-ive his {frace and t!iese lords
an account w hat discourse vou heard at Dis-
ney's conc<'ruing the prisoner at the bar, and
what name was' he usually called by, ui your
meetinipi.
Fiium-eford My lonl, I shall i^ive as just
an account as I can ; 1 was acqunintctl uith
Mr. Disney, and the 14th of June I was at his
house.
L: H, Steward. What June do you mean ?
Paunceford, Last June, my lord, and tliere
were three more besides, one Joshua Lock,
and a country {i^entleman that I have under-
BtotNl since to be one Hooper, ami there was
one Halsey ; and t^iny; there. Lock staid for
■onie det^lurations.
L. H. Steward, Wliat declarations were
Ihose you speak of?
Paunceford, The declarations of the late
duke of Monmouth.
L. H. Steward, Were they piinted at that
time ?
Paunceford, They were not ready at four
oVlock in theal\emm)n: but about nine o'clock
thev were finished, and three were printed off,
and were delivered to Joshua I>ock, and when
he had received them at that time, there was
A discourse of having them sent into Cheshire
to one Mr. Brown. After we had received
them, we came over the water tc^ther, and
we landed at Salisbury -stairs, and Lock was
¥ery earnest tor goin^ out of town that ni^ht,
with those three declarations, which, as he
•aid, were to be carried to one Mr. Brown:
This \Mis at nine o'clock, and so wo parted.
L. H, Steward, Pray into what country was
he t(» carry t:icni ?
Paunceford, A little way out of town he
taid.
i. H. Steward. Just now you said they
were to jro lo Cheshire.
Pauni:rford. My l«»nl, the discoui-sc at Dis-
ney's Ikiiso was, thut they were to be stnt
into Cheshire ; but when we came over the
water, Lock said he \%asto go a little out of
town to one Mr. BrovA n.
Alt. (Un. Pray who was that Mr. Brown as
they meant, as you apprehended ?
Puuncrf'ord, I understot)d Air. Brown to be
my loi:d Deliimcrc by some discourse.
L. IL Sltrcard. Whose discourse did you
understand it by P
Puuncij'oid. The first time, my lord, that
1 heanl of my loid Dt-lamere's vninir hy the
name of Broun, was upon a discourse witli
one Ediin.
L. 11. Stcunrd. Pritliee tell us what that
^iacoursc thou ha<lst with Kdlin, was ?
PaunctforU. Mr. EdIin, alnjut the latter
friend to g;o with him out of town, and my lord
Delamere went along vnth tbeiD| and went by
the name of Brown.
Alt, Gen, What difcourae had you with
Disney, or any body else about my lord DeU*
mere's going by the name of Brown ?
Paunctford. Mr. Disney did use to mention,
my lord Delamere by the name of Brown.
Alt. Gen. Pray were you at any nieeting
with any body, and whom, at any tavern, and
what tavern, where any auch discourae wai'
had?
Paunceford. My lord, I was at a meeting
at ihe Castle tavern with Mr. Verm uy den, atid
my brotlier Babington, and one Manning ; but
there was no mention then of any Brown that
I remember, nor of my lord Delamere, but
only there was something in relation to the
landing of the duke of Monmouth ; the ques-
tion was asked where he was to land, and Mr.'
*Vermuyden made answer he did not know.
L. H. Steward. Will your brdshin pleaie
to ask this witness any questions, my lord ?
L. Dflamere. Pray, Sir, did you ever know
any bo<ly else that went by the name of Brown
besides me ?
Paunceford. May I answer this qucstum,
my lord ?
'L. ILStenard. Answer it! yes, you most,
you are sworn to tell the truth, and the wbols
truth, man.
Paunctford. My lord, there was a disconne
of Mr. Verm uy den's going by the name of .
Brown.
L. 11. Steward. Will you ask him any noia
questions, my lord ?
L Delanere. No, my lord.
L. H. Stcu ard. Then go on, Mr. Attorney:
Alt Gen. Pray, Mr. Babinjifton, ik> you tell
my lords what you know of my lord Delaniere*i
goinjr by the name of Brown.
Babimton. My lord, I shall give an asr
count. When L first knew any thing of the
transactions, I was with my brother ^nnoe*
ford, Mr. Vermuyden, and one Chndwick that
went into the west, and there was a diboourse
of two gentlemen that went by lUimes 1 did
not know ; Brown was one, and 1 was desirous
to know who was meant by it : I was at that
time but uewly acquainted with the cbncenis
of thi»se people ; and so I found they wei«
fearful to entrust me: but afteni ards 1 was at
the Castle- tavern where my bnither, and my
uncle Vennuyden wus, and in discourse of
Mr. Bmwu, somebody liappeneil to name my
loni Delanicre's name, but he waa presently
taken up ; you mean Mr. Browu. Ay, ssim
he, 1 do.
L. II. Steward. About what time waa thip^
pray > ou ?
Pa'biiigton. About the middle, or latter end
of May last.
Att. Gtn. Were you at Disney's wbcB t|ia
declarations were priuteil there?
Babington Mr. Atuiruey, I will gpTOlB
«nd ol Muy last, w€*n( out of town, as I heanl, ^ ^ ,
«nd When* he came back a^aiii, 1 Sfrketl him I account of that afterwaids, but I
Whitkor he wentf be said he was hivited by a I thing else to say first. After tbisy 1
B5S]
far High Trfason^
gcui to know of my uncle Verniuyden tind my
bftHher, who this Mr. Brown wis : iny uncle
told me it watt n>y Ion) ik l»inere^ and de^ir^d
roe whenever I 4liiirourj«e«l f*i' him, to call htm
by thai imiiie, and 1 havt ?«^ry g^i>od reason to
believe Mr. Vernii^yden kutw Of the ixi«lter,
becJLUbe he wus uctiubinied with a p-eai many
ol'that soit ot |ii'0|)k-, and declared he hadcol-
Icoted and Uin.»w of inouies ihui were uulhered
for that purpuse ; tiikd he hud a g-ood aecotint
of Moimiouth's laiuhnii', aivd of Uie loree he
bad in the uesi, ami hmv hing it wan ]ireiiiirned
Ihat he could uiiitntaiti that force without na-
nslaoc^ from any body eUe ; aud ho t pre«
fiunie he wii« very well ac<|tiainted witli the
whole tmnaactiou. Afterwards I hii|Hitfnetl lo
be at Disney's over the ivaier, Hicre was my
brother Pauneefunl^ Mr. H»hiey, and iiiyselt*
Att, Gen, Tell what passed there at that
time.,
Babirtgton, Disney sjjewed me a declara-
tion that Has not |)Crfected quite, hut utter that
we fell into a discourse ahmtt Mr. Brown, and
atlerwnnls my h*rd Delaniere's name was
named hy somebody, thatscime of the deelara*
tions Were to he sent to him ; and f rem em her
Mr. DfsneV said he was afraid my lord Del a*
meie was not capable of doirig; that service
ib&t was cxj^ected i'rom him in Cheshire f«/r
want of some of those deelarations, v\hich
would be mighty usiful to him to lurorm the
peopk% Ifiey lieinrj Monmouth *s declarations
L. Ji. i^UTiftrri, Had Lock any of those
deelaraticms an ay for that Mr. tfrown you
ipenkfifi*
Biihingiou, I ne%'er knew lyick, my lord.
Att, ti vn . W 1 ta t mini her of d et la ration si d id
Disiney print ?
Bitbington. Disney told us he hoped in
twenty four hours to luive 5Ut> printed, u t^ood
number of them wei*e to be s<ni to my lurd
Bebmere, and seteral of ihem were dispersed*
L. H. Stfward. Dave you any m'^re ques-
tions to asjk htnif 5Ir. Aiti»rfiey ?
Att. Gen. No, ray lord.
L. IL Stcwaref. 'Will yoo iLsk hitn any
quebtionMv rny lord Delamcrt; ?
L. Drlamtre. >Jo, my lonL
Ait, Gen, Theii may it idease your j^uce,
the next witness wt sljidl brin^, shall he tu
]ir«MC that my (ord Oelamere look frequent
joui'uies hackiiard and forwani, in a very liitie
emu pass uf time, and the same witness n^Wl
likewise tell you what discourse he had with
way km\ diuintj; tite very time of Moumoutirs
rebellion, to siir up the people to join with him,
Swear Hope. [VVhieh was done.] Pray tell
my lord^ what distTOui-se you had with my lord
Delaoiere, and when f
Hupe, Upon the Sunday before the eoro-
tiatlofi, my lord Debimere came down pt*st to
ttiy hiui<te, towarils his own houtie ia Cbe>
shire
L. H. Sffward Prithee where is thy bouse?
For tliese nohtc h>ftis do not know thee, per-
haps, 30 well ai i do ; therefore tell tis wnere
iiiaP
A.D. 1686- [654'
Bope. My lord, tny btiuse Is at the Thr6«
Tuns in CovLQtry.
L, H. Sieuurd. Well, go on, tell what Uiond
ktiowe&L^ I
Hop^'/ Some time after that he came J
dtmit }»0!kt a^t^ain, and a Uule atler he weist up I
agaiu p<ist, and he told me he ^kiil dimu alio**]
ther way ; and after thai, the ^Isi ol June, b#. '
came ilown post a;*aln, liiis was upon a Sun- T^
rtay, ihe J^miday «eveu- night atlcr the.duke of ,
Monmouth lauded. tj
Att. Gtn. I fad he any servant with him a|
that time ? — Hopt, Yes, he had.
L. II. Huuttrd, Had he a sen^aotwith bin
efery liuie he came down po^it ?
Hope> No, he came a* er, 1 remember, wilb- !
out any servant, only wiih a post-boy. *I
L. //. Stntard "VVeM, ond what distours©]
ha<l you with U\m at that, or at any iilh**r fime?f|
Hope, My buil, that Suiidiiy, the 2 »l oti
Jour, my houiieVas \ery full <d" people to en-i]
fluirenevvs; it heiog iu the time ot Hie reW*ij
lion, e^ery one wa% desirous to knc>w hitw |
Ibings went : and ihfre was one In&rum in ihsiJ
hmiae. lhat came to me* and askfd twhat newii]
from Litndon, for they nay, *"aiih ke, that tha
duke of Atbf^rmarle i's killed, and his hearsoil
brought t<i ^Vesiniiii^ler Abliey* Thenrupon If
knowing my lord Didumere was come fi-ouvT
Lfmdon, I \vent into the ro«»m to my lord, and
desired to know fA Wvi loi^ihip wliat was ib%1
upws in London. He told me he was Ihtlc afe |
court, and theretbre could not leM mueb newa^l
1 ihcn asked him what he heanl concerning.!
the duke of .\h»erm5irlei said I, they say her«1
be is killed. Sailh my lord, I om Hony fur \t^%
if it be so, but 1 fi-ar it' is ltj*i true ; hut if he b^
killed, it is Siiiil he is kiib d by his t,wn party^
J asked him bow ? He tidd me, a party ot the ]
duke of A I her marie *s men were eiiiiiuiftiuhd t<l|
(jre at the duke of Munfiioultrs men^ but mstea4*]
of shootingr at them, they shot into thei^found^ J
upofi which they wei-e very severely handle<||
by their officers; which so enras^ed them, that }
ihey tiretl upou them, and kdled several of I
them, and anuio^t others, ihi* duke of Alberj J
marie was killeil ; ami he^told me the duke ui]
Monraoutb had several lielil- pieces, and armi
sutlieient fur near 3t">,UO0 men.
Att.Gtn. Pray,^dilbeshewyou any placet 1
iu any m%i>s ? I
Hope. Tliere was in the room AdamsV maji j
of EntJ l«ud, and my lortl Delamere shewed me ]
whicli way Moumouth went, and pointed oy| J
such and such towns that ht was possessed of |'j
and with id taiil, he did tear there would be |
fiiany hloo<ly notsei before the busiueiis waa at j
an end.
AtL Gen. How many times do yon tblnk^
oiy lord did ride post to and fm ?
'Hope, About hve times, I believe, rj
L H. Steaurd, Withm what space of time!
Hope* From the Sunday seveiiaight l»eforei|
the coronation, to the 'iJst oVjune following^.
L. H. Sieuurd. Have y^ni done with bioci. |
Mr. Attorney P
Att. Oen, Yes, tny lord.
teSl 1 JAMES R.
L, IM*imerf» My Lord Hi^h SteirArd, mih
your ^a(!e*8 leave, inaj I ask tbi» vrUness any
Yei| roy lord, what you
Trial of Henrtf Ltn^ Ddameri^
[556'
questiims f
i. H. Steward.
fleaae.
L. DeUtmere. Pray, did I godowo post four
or Hre iim^«, do you say m that space?
Ho fie , My lord, I say you did go eo often
backward and forward.
L. Delamere. Wbat time was tliat, you say^
I caine witbout any serTaiit, ouly with a post-
kioy. — Hope, IcanDOttell.
X. H. Steward. Will your lord&hip ask hita
may more questions ?
L, Delamere. No, my lord.
Ait* Cm. Then, my*lord, we deaire Thomas
Saxoti may be sworn. [VVhich was done.]
Pray, Mr. Saxon, will you g^ive ao account to
his grace and my lords, what you know of my
lord Delamere, the prisoner at the bar» concern-
ing any insiirrfctaon or rebelHoD designed by
him in Cheshire, and when ?
Sa;ron. At the beginning of June last, I ¥^
sent for to Mere, my lord Delaraere's bouse in
Cheshire, where when I came I was couvcye'd
into a lower room, where were my lord Dela-
mere, sir Hr^bert Cotton, and Mr. Crew Oftiey,
and thev told me 1 was recommended tu them
by my lord Brandon, who bad uaid, I was an
honest useful man, and they hoped I would
prove so : for they had sent to the cfuke of Mon-
mouth, who was in Holland, and received an
answer by one Jones, and as soon as tliey had
an answer, my lord Delamere came away
tjost into the country under annther name, and
by being conveyed through Morelields, came
down to raise lO^OCK) men for the duke of Mon-
mouth in CheMhiriff by the 1st of June; but
now they bad considertHi of it, and found they
could uut raiite them till Mtd!»ummer, for they
tnuBt have time to raise a sum of mnney,
40,000/. in that country, to muint^iiu the men.
They asked me, whether 1 would not under-
take io carry a message to the duke of Mon*
mouth i^ ] told them I would^ and I bad there
given me eleTen guineas, and five pounds in
•ilver f'lr my journey, and 1 did hire a horse af-
terwards, and did deliver my oaessage to the
duke of Monmouth,
L. H. Steward. Wbenwns this, doyousay ?
Saxon, This was the lieginningol June.
X, H, Steward, What day of June ?
Sojon* I cannot tell to a <lay, what day in
June it was, for I did not set it down ; but I
believe it was the 3nl or 4lli of June.
X. H> Stettarii, How came you to be recom-
mended by my lord Btauduu to these gentle-
men ? were you acquainted with my lord
Brandon f
Suj-on* 1 was acquainteil with hi m ; the first
titue I wa» witli him was at Over, the neitt
timv wa<^ at my lord's own houae*
Att. Cen. Ay, pray tell my lonl, how you
eame actual nl«d with my lonl Brandon ?
Si^un. Upon the Monday in Easter week
tast, bi'ing at Over, 1 wa» sent for by my lord
Brandon to drink a glastf of %le^ and fiiuoke a
I
pipe of tobacco with him ; and wheo 1 caiu* 4
tliither, my lord told me he had a desine to b* '
accjuaiutetfwith me; ao we drank a connider-
able while ; and he was attended at that time
with one Hohnshead, and one Mr, Lee. And
af\er we bad drank pretty smartly, and afler
some discourse, Lee and Hollinshrad vreot
Ibrth, being called out to speak with somebody,
about an estate or a tenement that they were
concerned in. After they were gone out, my
lord Brandon began to discourse alnml Lh« ^
elections of parliament- men, how unfairly they A
had been carried : he said, he stood both for S
the town and county of Lancaster, but bad
lost it by an unfair election ; for the other party
bad made sevenscore fretmeu in one ni^ht la
the town, and by that means had carried it
against him ; which had exasperated ihecoua*
try so much, that they were resolved to make
it an occasion of raising up the country in
arms, under pretence of maintaining the
Christian Engli»b liberties ; and that they luid
a design to send for the duke of Monmoutfi, and
make him king, and that they must make use
of such men as me, that were men of intercit
in the country, to stir up the people iu rise in
arms : and if I would come to G«iswortb, bis
house, upon the Monday after, he would tell
me more of that business, I went acc^rriiag
to the time, and there be told me a great deal
to the same purpose, and withal he shewed Ut9
a letter that he had writtea to the duke of
Monmouth; which letter I aiWwarda sairit*!
Bridgwater,
X. B. Steward. Have you any mure
tions to ask him ?
Alt. Gen. No, my lord ; but if my ktfd
Delamere please to ask him any questions be
may.
L. Delamere, I humbly pray He mty nftU
the evidence he hath given against me» for (
have not heard wbat he has said.
X. if. Sitward, Turn toward my lord Dela-
mere, and repeat the evidence that you gaf#
against bim, so as he may hear you. QWbicll
he did to the same effect as before.}
'X. H. Steteard. Pray, from whom did yo0
rect'ive that money ?
SaJton, I received it from my lord Delamere.
X. H. Sten^ard. Aly lord Delamere, will ytm
ask him any questions f
L. Delamere, Yes, may it please your graoc
X. ii. Slcuard. Then the method you arv U>
take, is this, you must propound your quet«
tions to me, and then I will propound ihem IO
the wimcss.
L. Delamere. I desire to know, may it nleaaa
your grace, when was the first lime tliat be
declared this that he baa ikpw iwirnl agatusl
me ?
X. H. Steward* My lord deatres to know
you, M ben it wae that yoti first fuad«i I
tins a^mst bim f
It, Velamert. And to whom, my lorl f
my lord, ui
priaouer Ivr XUk: rt^uciijoii.
n
657]
Jor High Treaty.
L. Delamere. When did he tell it Storey, mj
lard f
Sojpon, I think it wai a fortnight alter my
•cqiiamtancc with bim.
L. H. Steward. Were joii then in llie tame
|irisfm witlt Storf y ?
Saxon, Yes, 1 lay with biro in Ihe same bed.
L- Dt'lamerf, It" your grace please, I would
Ask him anoiher questlan*
X. H. Steward. Ay, what you will.
L. Delimere. I desire to know, when wasthe
first time that he made oath of this, and u|mn
wbat fi€casian tt was ?
X. H. Sfenard. What say you to thatf
Saxon, The first time I liadeoatli of it, was
when i lay sick*
L, Deiamtre, Will your gftace jikasc to ask
faim where that was, and when ?
Saxon, It was before his majesty's couu^
sellors, that were sent to take my examiuatiou
in Newgate.
X. JX Steward. Pritliee, I do not know when
thou tamest to Newj^ate, it may be thou ba^st
been there oftener than once.
Saxon. I gave my first information imme-
diBtcly after I was brought to town, when I was
removed from Dorchester tj-aol to Nevv^te,
L. Dtiafttrre. My lord, I desire your graee
would ask him what time became Uf: ?
Saxon, The beginning of ihe last term.
L, Dehmere. Then 1 desire to know, my
lord, whether he did remain a prisoner in the
country uU the other time?
Sftxon. Yes, 1 did so, from the tenth of July,
till the time that I was brought up to Newgate.
L. Delamcre. My lord, I desire to know of
bim, whether 1 hail ever employed him about
any of my concerns, that should give uie an
occasion of" trusting him with such secrets?
X. H. Steward. What business of importance
had my lord Del am ere ever employed you
ahont before this time ?
Saxon, \ was nefcr employed about any
concerns of my lord Delamere's before that
time, neither was I ever in his company, hut
only then, and then as recommended by Uttn to
him; for they said, they must miike use of
•uch as me to make their designs known to the
country, for the accomplishing what they did
iDteod.
L, Delamere, Recommended by him ! who
ioes he mean ?
Saxon, By my lord Brandon.
L. Delamere. If your grace plea*e, I desire
to know wbat the business was thai he was to
do?
Saxon. I was to inform the country concern-
ing the lime of the risinj^, my arquaintnnee
abounded that way, and by ilveu* discourse they
had got men in every plat-e to acquaint the
country wlieo they should rise.
X. H. Steward, Were you acquainted with
any g:reat number ?
SfiXim^ My lord, I was a public tradesman in
JHiddlewicb, and much acquainted wiib the
ordinary sort ot [*eo]de.
L. Dti^nen. My brd« be tays bt was lent
2
for io m J house, I desire to know who was the
messenger that wmk sent for him ?
Saxon. My lonl, 1 did ask bim his name, 1
he would not tell it me j he told me he wus hut l
tenant to my lord Oelamere, and had been em-
ploy ed in such businesses fof my lord Dela*
mire's father* sir Georg^ Booth ; be was
tame ntun in one arm, for be had his hand sh
away at the siege of Nantvt ich.
L. Ddamtre. It was Tom Long the carrier^'
I suppose, or some such fi^llow or other, that T
sent for him ; my lord, 1 desire to know wba
time of day or night was it when he came 1
ray house ?
Saxon. H was just when it began to be darlr,^
Ihe messenger came to me in (he afternimn to
fetch me tliilber, and I sent tor a man's hnrs«
that lived near me, and when it was brought
me, he asked me wbat made me go so late ; 1
tidd him I had occasion to go late, and ] shoutr
return late, atid the man staid at ij»y house foi
his horse till it was lute; but L not coming
home, he lelt order for his horse to be brough||
to him.
L. Deletmere, Next, my lord, I desire
know wb^ he came to my house, whellier 1
did alight from his horse at the slables which
belong 10 the house or no ?
Saxon. I did alig]>t just at the old-building
and the man's hort;e that came with me and
mine were taken into the stables.
L. Deiit/utre. Pray, my lord, ask him wt
took bis liorse from him ?
Saxon. The man that came with me, and 1
w<mt into the house, and hron^bt out a candle.
L, Delamcre, My lord, I would ask bin
whether the door Ine was let in at, was Iha
which was nearest the stable, or wjiich door?
X. H, Steward, I>o you know what door <
the bouse you were let in at?
L. Dtiamcre. My lord, I ask him whether I
were the next door\o the stable ?
Saxon. Mv lord, I cannot rery well givet,
account of thai, for I never was at tlie hou9
before.
L. Delamere. Pray, my lord, let him recoU
lect, whether it were the ({oor nAkt the stable <
noti'
X. H. Si€ward. Ay, with alt my heart, if fc
can.
Saxon, I did not aee any other door but th^
I came in at, and therefore I cannot tell whicli
doOT it was.
L. Dilamere. These questions, my lord,
lake to be proper for roe to ask, and f believe ]
shull make it appear to your grace to be so bjl
and by.
X, H. Steward. Good my hvd^ take yourfuH
liberty and ask what qnestioiis you please; for^
I know my lords here will be rery well pleas,
that you Iiave alt the scope allowed you tha
can be.
L- DeUirncre. 1 humbly thank your grace j
I desire to know of bim, who let liim into f*^'
bouse f
Saxon* The man that came with me wen
with me juit to the door, and i«t me ID within
059]
I JAMES II.
Trial ^ Henry Lord Delamere,
[560
the door, anfl I saw no other man bnt that
man, till I came into the room where my lord
and those two gentlemen were.
L. Delatnert. Was there nobody else but we
there ?
Saxon, No, you were so wise, you would let
nobody be by.
L. Delawtrc- My lord, I shall trouble this
witness no farther at present.
L. H. Steward, Then Mr. Attorney General,
will you proceed ?
Ati. Gen. My lord, we will gjive no more
•?idence at present, but shall rest here till we
see what defence this noble lord wiU make for
bimself.
L. H. Steward, Then my lord Delamere,
your time is now come to make your defence,
you have heard what has been evidenced
apiiost you, and my lords now expect to hear
what vou have tp say tor yourself.
L. iDelamere, May it please your grace, a
great part \}f the day is spent, and I would beg
Uie favour of your grace, that I may have the
favour till to-moriuw morning to review the
notes I have taken, and then 1 shall make my
defence.
L. H, Steward. M> lord Delamere, I had
this very thing in my thoughts before I came
hither this day, because I did foresee that this
was likely to be a long caase, and the pruceed-
injrs in it would take up much time : I have
m little doubt, 1 must needs say, in my own
mind, whether it may be done by law : 1 know
very well if this were a trial in full parliament,
there have been precedents to warrant the ad-
journment till another day, though it be in the
midst of a trial ; and in the middle of the eri-
dence : But this court I take to be of the same
nature, though of a de^^ree higher, witli the
other ordinary courts of judicatiire ; and whe-
ther it be not obliged and tied up to the same
method of proceeilings with those other courts,
where all capital offences are tried, is a thing 1
am in some doubt about ; In those courts it lias
notbeen usual to adjourn* the court after evi-
dence given ; nay, it has been s<)metinies a
question, whether the judges in those ctuirts,
atter the jury are gone from the bar, to con-
aider of their verdict, could adjourn them-
■elves: 1 say, the judges have sometimes niude
a doubt of it, though i know the |M)int is now
■ettled, and the practice is, that they may, and
do.* But this is most certain, alter the evi-
dence given, the jury cannot be adjourned, but
Itaust pniceed in their enquiry, and be kept to-
§ ether till they are agreed of their verdict, f
lis has caused soiue hesitancy iu me, what
the law may be in this case ; therefore i think
h may be proper to consult with my lords the
judges ; tor 1 desire the thing may be con-
aidere<l and settled.
L. Delamere. My lord, I humbly beg this
* See 4 Blackst. Cooim. 361.
fThat in some cases a Jury may adjourn,
See the Triale for HighTraaion in 1794, m this
fiivour of your grace, but to adjourn till to-
morrow.
L. II. Steward. With all my heart, my lord,
if it may be done by law.
L. Defamere. I "hope it may, my lord, and
I beg that favour of vour grace.
L. H. Steward, lly lord, I should be rtrj
glad to comply with your lordship's desires ;
out truly I have considered it, and do doubt
whether I can by law do it: In full parliament
it is clear it may be done, but upon this pom-
mission, after my lords the peers are once
charged, and the evidence partly given, wbe<
therl can then adjourn them till another day,
is with me a doi:bt. M v lords, if your Imd-
sliips please, before such time as my lord, fh^
prisoner at the bar, enters U|ion his defence, I
will, with your leave, pro|H>und tlie question n
my lords the judges, and hear their opinion
what the law is.
L. Delamere. My lord, I shall hardly bo
able to tiiiish all I have to say in any convenient
time this day.
L. H. Stricard. Put, my lord, if an adjooni-
meut cannot be by law, I cannot Help it.
L. Delamere, There has a great deal been
said, and it will require a great denl of tima
to give it an answer.
L. II. Steward. Ay, bnt if it cannot be doof
as you would luive it, we must be contented to
stay the longer together; for I would not
abridge you of your defence: therefore, my
lords the judges, if you will please to go toge-
ther and consider of it, and report your opi-
nions, what the law is in this case, we wfll stay
till you come again.
Then the Judges withdrew into the Exche-
quer Chamber.
E. of Nottingham. My Lord High Steward,
I do humbly conceive this is a matter that
concerns the privilege of the peers ; and because
it is a matter that doth so much concern the
whole peerage, I think my lords here ought in
some measure to concern themselves about it.
Therefore, my lord, I have a short motion to
make to your grace, that, considering the con-
sequence, that the preceilent of this case may
draw with it, since my Iwnis the judges sie
fone together to consult of this point, or\vbicb»
may say, they arc not altogether the sole
judges ; we may also withdraw to consider of
this matter with them, because it may not be
pi*opcr for my lonls in public here, to offer
what they uiay have to say, to incline my
lordsthejudgesintheir judgments one way or
other.
L. Falconberg. My lord, I humbly offer this
to your grace, upon the motion that this imUe
lord has made, That, with submission, I take
this to l>e a thing that concerns the privilege of
peerage only, and 1 conceive tlie judges are
not concerned to make any determination of
that matter. I think, therefore, my lords here
ought to retire with them to consider ol'iC
L. H. Steward. M V lords, 1 think, fn4i fdk^.
mission to your tordsnipsi that th^is n^
m}
Jhr High Treason*
fttuntlly |*roper for my IopIs th4?jui1^e«i to p^c
Hcrr opinJiit»s in, Wfietber this ccnjn, as a
Durt or jiniifMitire tot the IriwI of Ihh nohk-
inny, in the wuUt of the irbl, utfjrmni
other iluy ? AutI the privi\csft* oi the
(ft* i^^ionol ul all come mi i[nesUou here, as
JCOOCCIVP.
f " L. Faicontcrg. My lortl, tb:if we conceive is
poinrof [invileifp^ whi' ! the iofe*
or c^urU <'Ari h-iv*' iin \it,\. i mine,
L, H, Stcb>ard, U your lordiUijis have a
Dind to withdruw, you may.
Lordt, Ay, withdraw, wilhtJraw.
Then the Pfcrs withdrew, a»»I rji\crha!fan
oiir the Jutftfcs retun»eil «iid took their jitiiots
I belVirv, and i*tler about ou Lour the peers re-
nraect to their former pliicx*^.
L. H. Sfaitird. My tord* the Judges, have
on conisidrrtd ihe matter tt at Una heen pro-
osedloyoii, and whit h \ftur opmion ?
L* C. J. Htrhcti. Mny it p lease yotir g-race,
be jiidge$», id obedience loyottr grait'e^s com-
Hftnds, have withdrnwii^ »a«l eotisidered of
Irhat sOMt giacc proposed to thcin, and with
lit table submission they tJike the question to be
II is.
f^oU Whellieryourpraeemfty nJjoiirn yonr
ommiHusioii from one thy to aiioihrr, for that
t clear you may, amJ h&s been practised, for
bat is the ciiite m the earl o4' Somerset and his
tVhe (piestion is, Whether a<>er the pri-
l^^n his triHl, nnd the ei'idco^e for the
■^><Hi, the lonlsheing» aswernftytcrm
^ n1 with the prisoner, the ]\^cni triers
iiay !M paralc for a time, whidi is the coo-
^itenl of an adjournment to another day**
And, my loni, the jufi^es presume to ac-
ninint your ^race, tha^ thi^ ih a matter wholly
tvf to thetui Hud that they know not upon
eeollcctioti of all that they can rpmemlier lo
ftve read, that either this matter tvas done or
jiieistioned, w hether it iftigfhl or w'v^Ut not be
Dne in any caM? 'f
My lord» if the matter bad been formerly
Duc, or l)een bronj^ht into question in any case
^here it had roeciT»l a dcterniiti«tif>n, and re-
I in any of«urbo<jks o( law*, the-n il would
ife becQ our duly to eontrihtite all our read-
; snil PX]>efieni'e* for the satt^taction of this
at court : But beinnf, as it is, a neu question,
I f|iieBtiou that not only concerns tl»e par-
f Ctaeof this noble lonl at the bnr^ but is
precedent in all ca^tea of the hkentitnre
future I Alt wo cau do w, lo acquaint
Dfgtaee and my noble lorib, what the bw
tn tt^ inft^rior eourta in ca>i« ^ of ihe tike
iture^ and ihe nr^mon of the lavr in tb^^se
' ' ' jiiriiiUictiou of i\h9
.11.
ly li'iM. in Mil 114 vk I'utce, wltrre the trial
I by a jury, there the law ia clear, the jury
^o|)erinfir with tb^ J^fy* Aa gtticar is fworu
A* a 16S6. [504
to keep the jury toother without permittinnf
them to {separate, or any one to c" -itli
fhcm; lor no man k no ^vs what i it»
for (I'nu-lt fl>*' hi" V- ,*.ijre3 honesi i.e., .....uUl
he , ancl without il known
ohy ^ ' .^ uimeJ io be pr obi tt tc'*
gtths homifui^ yei) they are weak toon, and
perhaps may Jie w mugb't upon by undue oppli-
caliuna.
This, my lord, it is said, fails in thia c^LSCt
l»c<imnse the lords that are to try a peer, ar«
persons of that grea^ inleB^rity and' honour, that
there is fM>t the least presumption of llieir bein^
to be prevailed upon m any such way : and for
that reason, because of the confidence whicli
the law rpposes(uud justly) in persons of their
quality, ilicy arc not bworu as common ordt-
oar> jurors are, but arc charifed and deliver
their verdict upon honour.
My lord, in the case of a tiinl of a peer in
purliamcDt, a.^ your uraec was pleaded to ob-
serve, and as is" very well known by late ex^>e-
ricnce, there the m.uti?i has been atijourned till
another day, and for divcradaya; tlie evidence
being in several parcels, and there the danger
ia as g"it*t (if any were to be Bupposeth) of lam-
pcrinty : But whether the lords beiuj^ Judges in
that case, and in thi!$ case only io the naiura
of a jury, makes the difference, though in lH)tU
cases it is but like a verdict, for they (^-ive their
opinions ieriatim^ whether the f>eer tried be
tjuilty or not guilty, that they submit to your
grace's CAjn^ideration.
Upon tlie w hole matter, my lord, wlietlier
their beiii^ induces in the one, artd notiutho
ottier inslance, alters the case, or w hether tho
reason of law in inferior courts, why the jury
are not permitted to separate till they have dis-
charge d themselves by tlieir verdict, may have
any mUnence \ipon tliis case, where that reason
Keems to tail, the prisoner being to lie tried by
his peers, that are men of unquestionable un-
suspected integrity and honour, we cannot pre-
sume 80 far as to make any detrrrniniition in a
point that is both new to us, and of gretit con-
aequence in itself ; but tiiiiik it the propeiest
way for «<*, havint; laid matters as we conceive
them before your grace and my lords, to sub-
mit the jurisdiction of your own court to your
o^m determination.
L. If. Sttward, My lords, 1 confess I would
always be very tender of the privilege of the
peers wherever I find them concerned; but
truly I apprehend, accordinpr to the best of ray
undcretandini^, that this court is held before
me. It is my yvarrant that convencji the pri-
soner to ibis bar. It is my summons that
bring)* the [>eers together to try him, aud so I
lake myself to W judge of the court.
My fordi*, it IS true, may withdraw, and they
may call the judges to them to a^nst them,
whicli Hhews they have an extraordinary pri-
vilcg^e in some cases more before the liij^h*
ftlewanly than juries have rn inferior cmirts in
caaeft vl* common pcrsomi : For» if it be in a
OQimDOiioaee no jury can ci^U either counsel or
judge* to aMtft tb«ai, in ih« »N«ioe ©f ttit
2 a
ses]
IJAMES II.
Trial ^ Henry Lord Dtlamere,
[<64
priaoDer ; but if tbey will baTe advice, it most
be a«ked in open court, in tiie presence •!' tbe
party accused.
Hut now, ray lords, if you bave a mind to
consult witli me in private, as I now sit by
\rirlue of tbis commission, wbicb. is bis majes-
ty's warrant for me to bolcT this court, I could
not withdraw with you ; but you must ask all
your questions of me, in tlic presence of the
prisoner in open court : whereas if it were in
full parlidmeut, as were the cases of my lord
Stafford,* and my lord of Pembroke,f then he
that was the high-steward might go along
with you when you withdrew, and consult with
you, and give bis opinion, which I cannot do
m this case ; for I am bound to sit in court,
whileyou withdraw to consider of the evidence,
and am not to hear any thing said to me,* but
what is said in open court in the presence of
the prisoner ; except it be when you deliver
your verdict.
This I confess, my lord, has a great weight
with me, and I know your lordsniits will be
very tender of proceeding in such a case any
way but according to law : For though you
are judgri of your own privUegcs, yet, with
aubmission, you are not judges of the law of
this court ; ior that 1 take to be my province. :j;
Why tlien, 8up|iose, my lords, 1 should take
upon me to do as my lord Delamere desires,
and adjourn this court ; and suppose the law
should tall out to be that indeed 1 ought not so
to have done ; would it be any advantage to this
noble peer if be should be acquitted by your
lordships afler such an adjournment ? Alight
not the evil consequence of that be, tliat he
might be indicted for the same crime, and tried
again ? For all tbe proceeding's ader that
would be void, and liable to be reversed.
Anfl if, on the other side, yaur lt>i*dshi|is
ahouki think tit, upon the evidence you lm\e
now heard, and what he shall say for himself,
to convict Iiim, after I have adjuurned as is de-
fiirc-d, and I pass judgment upon him, us it will
be a duty incumbent upon me to pass sentence
on him, if you convict him ; \ihat uiil become
of the ea:»e Uieu ? and how shall I be able to
answer it, as having done my duty, whea I
prououiire a jiidu-nient notoriously em»neous
and illegal ? iur so it will be, if the law prove
to be against my adjourning. This, my lords,
is a matter of great moment, and \iurth the
i-onsKleration.
* See the Case, vol. 7, p. 1^93> of this Col-
lection.
t See tlie Case, vol. C, p. 1239, of this Col-
lection.
X See 4 Ulackst. Comm. 2(33. Concerning
(hcljex Pnrliamcnii ami the Privilege of Par-
liament, see something in the Cases of Skinner
r. The East- India Company, vol. 6, p. 709 ;
Barnardistoii v. Soamc, vol. 6, 1060 ; Shirley
.V. Fagg, vol. Oj p. IISI ; loni Shallsbdry's
Case, yui. 0, p. 1369; Richard Thompson's
Case. vol. 8, p. 1, FitaKhanisW Cue, ?ol. 8,
But in the other case of a trial in full pariia*
ment, the k>rd that sits where I do, ia only at
tbe chairman of the court rather than judge,
he gives a vote in such proceedings ; and there-
fore, my lord, the prisoner did very wdU at the
beginning to ask tbe question^ whether I bad
any vote in his trial, as a peer, jointly with
your lordships ? If I sat in full {Murliament, I
should without all qnaation give my vote as
well as any other peer ; but aitting here by
immediate commission from tbe king pro hoc
vice^ high -steward; I acquaint yoo as I U
him, I nave no authority to give si^ vote :
m V business is to see tbe law observed and ful-
6Iied as judge.*
Certainly, my lords, your lordahiM and I,
and all mankind ought to be tender or oomtnit*
ting anv errors in cases of life add death, and I
would be loth, I will assure you, to be reisorded
for giving an erroneous judgment in • oaae of
blood, and as the first man that should brina '
an illegal precedent, the conaequence of wb
may extend I know not how ftur.
Ati, Gen. Will vour grace give directioo ior
my lonl to proceed ?
£. H, Steward. Tea; he amst pnNseed, 1
think.
L. Delamere. May it please year grace, aid
you, my lords, it ia an oflfence of • veiy bigli
nature, for which I am tbia day to anawer he-
fore your lordships ; yet, I thank God, I am
not afraid to speak in this place, becauae 1 am
not only certain and well aaaured of ny own
innocency, no such thouglit having m yet
entered into my heart ; but I am abo wdl u*
sured of your lordships wisdom and Jutioc^
which caiinot be imposed upon or surpnaed by
insinuations and florid harangues, nor govern^
by anything but the justice of the cauae.
My lords, I can with a great deal of eomfeit
and satisfaction say, that these crimee where*
with I am charged are not only straagen tt
niy thoughts, but also to what baa been nv
constant principle and practioe ; for I thiok
that in matters relating to the church, and tbe
things enjoined therein, few have confoimaJ
more in practice than I have done, and jeC do I
confess, and am not ashamed to aay it, that I
have always had a tenderness for all iboee wke
could not keep pace with me, and eband[ ler
those that have outgone me, and differed mm
me, though never so far; nay, though of a
different religion : Vnr I always thought l«li*
gion lay more in charity than peraeoutioB.
^Vhile 1 had the honour to be a magialralt
in my country, I did constantly, duly, aad mb* .
partially execute the laws, and in every piMM
trust I was «ery faithful in the discbaige of it;
for I never voted nor spoke in any inaniMr bul
as my conscieiice and judgment did dictMe H
me. 1 ha\ e always made Uie laws tbe leaaura
of my loyalty, and have still bee* aa aealoM
and careful to give tjie king hia pieregrtifg, aa
to preserve to the people tlieir propeitieai m4
* See 4£l«ck«Uiiie'a Gettoi. M8.
865] >r High Trmott.
hvre end^rourcdf as fir as in roe hy, to live
peaceably H^itt* all men.
Tbis, my lords, wm* out only the cfltiates of
Bj own inctmations, but it was tbe (irinriple of
my fkther, and the lesion that he taught me :
1 lay my father, who was so greally instrn-
-Vecilij 111 ftriatchini^r thi^ nttion out ot it» con<>
D, and re'^toriocf U to its anclont goFern-
Uy ■ettliiig' hifi late tnujesty upon hts
i^ lod consequeiftly was tht: means of his
Ht majesty, thai now i«, bis cotninf^ so
pemixably to the ciy>wu. And this I may the
.m^H boldly speak, bficmiae I speak it by good
authority ;'b<Mause in the paleotthal created
my Tailier a pe«f, his h'r tt - -ty is pleated to
^y, hii fining was m.n iDoentaJ in hit
reslauratron. I he^ il,< /»,^ ..i of your gfrace
4Mld my Jords, th&C I may read yoirthat cUuse
ia the preamble of the patent,' which 1 Uaie
Jiere reedy to |iroduce.
[Which was read, and then my lord pro-
ceeded as follows, vi/.]
My lordsf I suppose most of your lordships
^id know lum ; nod whueoever did so, I dare
say, did U^lievc hitH to he a good man ; For
nay port, I did not know a b«ttcr copy to write
atfer than Uh (!xample, which I endeevouretl
always to imitate^ and ihat I hope will go very
far to vindicate me from the rmputalion of
beiu|f inclined to any such crime as I stand
charged with.
My Icirds, It is now late, and therefore I
ibaJI cutotf a great deal of what I had in>
tended to say lo yoor lordships* that f may
oottake up Uio much of your time, and come
tmniediately k» my defence, as to what I stand
aeeneedot
And first* ray lords, I shall observe, that
liere have been a great many witnesses pro-
duced, and a {^eiil deal of swearing, but litUe
nr nothing of legal evidence to alfect roc ; for
tbef« ts but one man that saith any ihing' home
Mid ptaitivciy against me (and whom I sljall
anewff by and by); all the rest arc but bear-
■nys, and mucIi remote circumstanoeSi as may
be taeked to any criileiice against any oilier
^piMio, but are uigrd against me for want of
^veiler matters lo eluLige ma with ; and
Iheicfore I hope tlie producing lad pressing
ol* these things against nti*, is nukmr % strong
argument that 1 ssn innocent, afid that there
>are been mischievoiM and ill designs of Home
against met than that 1 am guiity ; for if thcfv
mid had other and greater mattera, your lorJ-
ahipa would have been aure lo bave heard
of thCTD.
H tth yovr lardships leave^ 1 cannot bol ob-
•rrve to your lordabipe an eiceUeol Mykig af
that great nan my ktd of Notiinirhnm, (whrme
name will eter lie nimemlM*rctl with h«»nuur
in ouf Engliati nation) when he «at in ih^'
aarue place thai your gnu e doett now, at tlie
I trml ol uiv lord Ijornwiilliii, whieh 1 will read
lo \oiir iurdalMpa. t^jficakiug lo the peer»,
he liua this paiiUge.
** I kaov yitiir haiahipi will wtigk the
A. D. I6Sa.
fact, with all its circumstanoes, from which it
is ttt receire its true and its proper doom.
Your bnUhips are too just to let pity ma'
an abatement for the crime, and too w i»e lo ^u$
fev rlieioiic to make any improvement of it!
This only will be necessary to he ob&errcd b^
all your lordships^ that the fouler the crime ii^
the clearer and the plainer oiigUi the proof of
it to be \ there is no other good reason cjtn ha
given, why tlie law refuses to allow the nri*
atfuer st tlie bar coonsel in inatt«r of fsirt wlic
life i!i concernod, hut only this, because t
eridenot^by which h( ' mneil ouglittobt
so very evident and ^U all the oona-
sel in ttie world lehmilii mn ur luiletoattswerit,"^
My lord*, J think that the evidenoc/thftt has
been ^ivro ng^aiust me this day floea not romo
up to this. And 1 hope yoiir lord^^hipa will
regard this saying of my lord Nottingham']^
as nore worthy of your consideraiion, thati
the fine flourisihings and instouations of the
king's cottnsef, n hich tend (il* it be not so de-
signed) rather to misguide your lordships, than
to lead you to tind out the truth.
My lords, 1 shall now tell you the m«ll|<
that 1 shall proceed in, in making my defence ;
and J begin with >Jaxon ; for he, 1 pertH.>ife, h
the great Goliah, whose evidence is lo maio^
tain this accusation, and if 1 cut him down, 1
suppose I shall be thought to hove done my
own business : therefore to that I shall apply
myself tirst, ami do if 1 can; and will in ttws
first plac^e examine several persons that are hie
neighbours, aod have coovemed with hiiDp
what they have heard and know of him : and
lirst 1 desire Richard Hall may be called,
L. U Steward, My Innl Uebmere, if yon
be^in that way to call witnesses against Haxoit,
it IS fit he should be here Co know what is aai4
against him.
L, Dtlumen, Ay, with all my heart, mj
lord,
L, H. Stcteard. Then call «aron agaia.—
[Tlien Saxon and ilall came lH>th in.]
L. Dclamere, l*ray Mr. Hall, Ufll my lords
here what you know of Thomas Kaxon }
L,H.SUward. What is it you uak of thia
witness ?
L. Dchmere, My lord, I desire him to give
att account what lie knows oC a Utter, that
was Ibrged by HaKon, in the oaina of oae
Hildsge ? . ,
Hall. About the 19«h of Deoerober, m Uie
year 160^, I retxnv«l a letter by Tb<«J^
Nnxim. from llichard Hildage, wherain be m--
aired me to send him the sum of 61, odd
money which I owed him t 1 received the
letter and tmuX the money, and to ^ l>eator
my knowledge, some little Imiia allaf 1 met
viiiU the said Hddaife at Now«MUe, wlw
asked me to pay him the money I owed hiin.
I replied I h»dV«i<* ^^^ "*^"**> aocord»g4li
bis note , hut he t^ai«l lie m^vr ga%e atiy aucU
note, find threaU'oed t« »ue mr ? fheieiip-m I
sent cue Li*rd i*. HdcUge, that w here iivw in
■ --r
♦ Sec ToU T, p. 1«
567] 1 JAMES n.
thecoart, and desired Hildage's forbearance
tor a while, till I could get the money from
8axon back again, and afterwards he sent
again for his money, and 1 sent to Saxon for it,
but still the money did not come.
L. H. Steward, Did you ever speak with
Saxon himself?
Hall. No, but with bis wife, who came to
me about it ; but he acknowledged he wrote
t|ie letter before John Lord.
Saxon. Did not my wife tell you that
Richard Hildage lent me the money ?
L. H. 6Vevar(/. Nay, you must not dialogue
with one another, but ir you hare any ques-
tions, you must propound them to the court :
jl^Iy lonl Delamere, ha?e you any questions to
ask him P— L. Delamere. No, my lord.
L. H. Sictrard. Then what is it you would
have him asked, Saxon ?
Saxon. I desire you would please to ask him,
whether or no he did not lend me the money ?
L. H. Steuard, Ue\ who do you mean ?
Saxon, liichard Hiidage did.
X. ti. Steward. What say you, did Richard
Hildage lend him the money ?
Hull. No, my lord.
X. //. Steward. Look you, my lord Dela-
mere, the objection carries a great deal f)f
weight in it, to prove him a very ill man, if it
be fully made out.
L. Delameic. My lord, if your grace please,
I can prove that he owned the writing of the
letter to anotlier man.
X. H. Steward. My lord, he does own here,
that he wrote a letter, and that he wrote it in
llildage's name, but hesaitb, the letter he so
wrote in Uiidage's name, was by Hiidage^s
direction ; and it so, tliat takes ofi'tke objection
inade against him.
L. Delamere. 1 must submit that to your
grace, whether what he says in that matter be
evidence ?
X. if. Steward. What Hildage did, or did
not, is the main turn of the question in this
case ; for he might lend him the money, and
yet silerwards might say, when he thought he
might lose it, that he did nut send any such
letter, and all this be true, and Saxon in no
fault: 1 must confess, if Hildage were here
himself, and should deny the lending of the
money, or the giving him directions to receive
it, you would liuve fixed a shrewd objection
upon him ; but otherwise hear-says and dis-
courses at second hand ai*e not to take otf the
credit of any man't» testimony.
L. Delamere. But Hall says Hildage denied
the receipt of the money, or any order for re-
ceiving of it.
X. H. Steward. That signitics nothing, being
but by second- hand.
S<ixon. If it please your grace, here is my
brother in court will give you an account of it.
X. H. Steward. Well, well, hold your
tongue ; will your lordship please to go un P
L. Delamere, The next witness, my lord,
AatlshaUcaUiBhallbeFraod&LiDg, [Who
weiBul
Trials of Henri/ Lard Delamere^ [668
X. H. Steward, What do yoa aik this wit*
ness?
L. Delamere. Mr. Ling, pray will yoa tell
his ^race, and my lords, what you know con-
cerning Saxon's receiving any money in the
name of Mrs. Wilbraham, without her order.
Lang. He called at this same Hilda^'s at
Newcastle, and received twenty five ahillings,
and 8ai<l it was for Mrs. Wilbraham, in Enr
name ; but she never received a pemiy of the
money, nor knew of his having ccceived it, till
he came to pay another quarter.
X. H. Steward. Where is that Mra. WUbn-
ham ? Is she here ?
Idng. No, my lord, she b a neighbour of
ours, an ancient woman, fourscore yean ef age,
and cannot come so far.
X. H. Steward. This is the same case with
the other, you can never think to take off the
credibility of witnesses by such testimony ; hi^
this is only a tale out of an old woman's
mouth : W' hat if that old woman told him a
false story ?
Ling. She said
X H. Steward. I care not what the said.
tt H
this is no evidence at all.
L. Delamere. Then pray call Richard Shaw.
[Who came in.]
X. H Sleicard. ^\ ell, what aayi this wit-
ness.^
Ij. Delamere. Shaw, can you tell any thing
of Thomas Saxon's writing a letter, and send-
ing it in the name of one PangstoD a baylifT?
Shaw. He writ a letter, as I understand,
coucerriiiig some money that 1 owed him; for
I owed liiin a liitle money, and being i did not
pay ir, he does forge a letter and puts William
Pangstuij's name to it, so I got up the other
morning
X. JE£. Steward, Where is Pangston ? Is he
here?
Shaw. No, my lord, he is not, but he told
me he (Ji<l not write tlie letter.
X. H. Steioard. Why, tliis is just the t
again, and we all know* how easy a tiling
to hear a baylifT tell a lye.
Shaw. I cannot tell, but 1 called—
X. H. Steward. All that is nothing. It if a
difficulter matter to bear snob fellows speak
truth, than any thing else, I am sure.
L. Delamere. The next witness that I shaH
call is Peter Hough. [Who appeared.]
X. H. Steward. There is your wbnca.
What say you to him ?
L. Delamere. Pray acquaint his ffraooy aod
my lords, what you know of Saxon s cheating
yuu in the making of a bond.
Hough. My lord, he had six pound ten shil-
lings in money, and ten shillings in work doo^,
for which he was to give me a bond, and here-
of he made the bond himself. 1 thought it had
been right, and took it; but about the tiMe
when the money was become due, 1
upon it, and it proved to be but for 6L -
X. H. Steward. What shoukl it hmre
for?
Hough. It sliould hare been fiiri
sty tlie bond
ten jibilUfigfl in inotiey« tud tru shiUin^ in
i/vork.
L. IL Stcttarti, Did not be git e Uiee & htmd
ihiu^h, li should linvc heeti to, biU I never
i^^L if. StetparJ, Hail ^«iu ncv€7 the moue^ ?
^^fityf^h. N(i, I beuT hud iht; money.
* L. i/. Ste**.orti. What did he wy tl
tfhoitlt) be inailr for P
^E. li. .S/mvfrc/. U hat stiy you to it, Saxon ?
^oaion. ftly lord, thtn\ h'vc ptjundft ten shd-
lingn ni' him, and ten shilhDg^ in work, for
^^-*^ ' gnve hitii ttotid ; there were the wil-
Jftniesv at it, the bond was fairly read,
li«(J it, nhd he took it with biru.
L. H. SUtiard. Ay, but he snys it was to be
for scft'it poittMls.
• Smm. I net or hud any mort* of him than
Kitinds, nnd Ibr thftt f cfiive him Umd.
W* Sfen^rd. AVmi the bond read to you?
't'^'A. Me reud il himself, and he mude it
himsHt.
. t. H. Siiuttfd. llow did he rend it? What
fhd you a^piriiend by hiA readings it was made
tor?
//"i'^ A. I took il HH he reud it to be maide for
ttcvcn pt»niid<T.
^nion. Ue miiv sny what he |ilea«cs, hut I
had no moro of him but six pounds; I wan to
^i^f btmti tor oo more,
/,. 11, Struard. iNow the Mrilnes«es to thi«
bond ivonid he vory pojier U* ba |inKluced
hvTc : i^or^ If br Hid mukr the Inind l»ul far m\
poitml't, wlien tl)e dc lit I lint vtna to be secured
wa« ^ven fiouiuU, that it a !iign ibat he hmJ
fto intention to ebeat him of the twenty abit-
HE* Delamfre. That abews what a kind of
man he is.
L, H. Steward. Eat this ia but witness
a^tfio^t wiinetts, for he taty*, he owrd no more,
und wa* to make ifie bond for tio more.
iiott^h. It was aji I tell you, I aasitrt ymt,
Wg Wd.
So ton. i had no more of him than six CKiund*
i Honi^fK l>ol not I ask you afkrwards one
l|ii^tifMi irini.., ami tnhl you it was a cheat, and
ycjLj 'uhl b«^^ mcndal?
/ tird, >Veli, my lords bore heard
ila they will ^MtMat what weight to lay
vpm ft.
L. Ddmttrre, Pray call Edward Wilkinson,
[WIk» ap^n'MrcHl.]
X< //. Sictpard, W hat do you ask him ?
L* Delamtrr, Wdkmmm^ pray tell my lords,
! ' \(in dialt witli \ou ulmui )our horse?
'^^m. Hs lord, he biroil a horse of me
lur lUMi ' ijiil was to g^ivc me twelve*
nee u > ne¥er <*ame a|pim, nor had
^' ' >^-'> ior my horse; hut I lust uiy
hoi ^irg^aitK antl my money tiio.
i 11 d. How lou|^ a^ was it since
he ! Iiorsef
\t My lord,itwi»llie33dof Junr,
to llui beat ui my
X, ir Stemard* Did he not ap^e with yoo
for Md. u day as toiii^ »s he used your horse f
WiUUnson' I expected to haie my horst ia
three days time.
X. //. Steteard, Btrt mind my question, did
you a^ree that he should have him hut three
days P Or, was he to give you 12d, a daj far
so loni;; as he kept him out ?
WUkihion. 1 was to have 1«i. a day for htm.
X. If, Stradrd, What ! as longf as he used
him, or only tor three days ?
Wilfdnsim. He did agree with roe to briti^
him ajfain in Uiree days.
L, JL Steward. 1 perceive by the time, he
rid into the rebellion with his horse, and he
was a very knave lor so doing, upon my con*
science.
L. Delamere, Call William Writrht, f^^bo
came iu.] l*r;iy will you give my Unlit, an
acciuiut what reputation this Thomas 8ajcon is
of in his cnunlry ?
Wright. My brd, this Thomas Ssi-Ton came
to live at Haiitbige, and 1 had some dealings
with him a^ well as other men, and 1 tiever
found him to prrlect his word in any thini^.
X. if. Uttward, W hat didst tiiou never find
him?
Wright. To perfect his word in any thing,
my lonl.
X. //. Steward. That is, make good his
word, ] suppose ; but that is yot»r Cheshire
phnise,
Wright* Whereupon I met with him one
evi«ni»i;jf nfterevening-prayt^r, aud *iaid hj liiin,
Tliomzis Saxou, if 1 cured tin more tor kee|nng
n»y word than ihou doat, it were no utaiter if I
were hauled ; for to be sure if thy mouth
open, ihy tongue lyes : and he turned away
frotn me,' aud would not answer me a wonl ;
tmd since that he owed me some money, and
ivheu I asked him for it, he told me it t did
trouble him for the moury, it should be the
worse forme; w hereof ah the tow o kuoMrg as
well a« f , that I cannot set him forth iu words
as b;iil as he is.
L, IL Steward, Can you instance in parti-
cular, friend, of any fmud, chent, or co^niage,
that he has been guilty of ? For it is not wjiat
the (own sayn, hut what can be proved, that
we must take for evidence ; the town that thou
livesl in ntay reckon thee but an idle iellow^
and vet thou mayest be a very honest man fur
all tiiat.
Wrigkt. t trust, my lord, I am an, and thalt
alw»yj« prove so.
L' H, Sittturd. Well, wbat dost thon kiiow
ill of him?
Wri^/tt, lie did not keep his word with me.
X. //, Steward. WhiTem dost thou meau P
Wright. As to uiim^y he owed me*
X. h, Sttoitrd, How mur b money did he
owe ihee ?^ Wrtfihi He owed me a deal,
X. il. Stca-urd. How much do'st thou call
a deal 7
Wnftftt, I can tint tell how much exactly.
X, H. Sit ward, Do€shto\^etheeauv tiiini^
now f
M
snj
IJAMES 11.
Trial, qf Henry l,ord Delameret
iSTf
Wright, YeS) bat I cannot justly tdl how
much.
X. if. Stewards My lord Delaoiere, T wonld
be very unwilling^ to interrupt the method of
vour defence, or abiidge you in your evidence ;
but really this objection that you endea? our to
prove by this witness, is not at all, as I con-
ceive, tor your lordship's serrice : for it is a
Tery hard case, if any one that owes money
and does not pay it, snail for that very reason
lose the credit of bis testimony ; this rather
fives a countenance to what be says, that you
now no other objections but auch trivial ones
to make against him.
L. DeUmert. Then, if your gfrace please, I
will make short work of it, and spare your
time ; I shall pass ovei* this part of my evi-
dence, though I have more witnesses to this
soint, and come to other matters, to matter of
h^ to encounter this positive proof that has
been s^ven against me. Your grace and my
lords 00 obse^e, that this man &zon has tes-
tified, that about the third or fourth of June
last (for there he fixed the time) this man, as an
extraordinary person that was fit to be trusted
in an affair of this nature, being confided in,
and recommended by my lord Brandon, was
sent for by me to ^Icre, where he found me
and sir Robert Cotton and Mr. OfHey, who did
employ him to transact th^ matter of stirring
up the country in order to a rising and joining
with the late duke of Monmouth : now I wm
first prove to your lordship in general, that sir
Kobert Cotton was not in Cheshire for many
weeks, nay, several months both before and
afler the time he speaks of: and next in par-
ticular I shall prove as to the time that he has
pitched upon, by divers persons that saw sir
Kobert Cotton here then in London, and give
you particular reasons for it. First to prove,
that he was here in town so long in general, I
shall produce his servants that saw him every
[Who appeared.]
day : call
Billing.
Pray Sir, will you give an account what time
air Kobert Cotton came to London, when he
went out of London, and whether you were
frequently in his company and saw him here ?
Billing, My lord, to the best of my remem-
brance, sir Itobert Cotton came to town the
lOtb of April last, and I was with him here in
town ; at his house at the Horse-ferry, till the
latter end of July, and saw him constantly
more than once or twice every day for that
time : 1 used to come into his chamber most
mornings before he was up ; I used to buy in
bis provision for his house, 1 saw him a-bed,
or heani he was in bed every night.
X. tf . Steward, Did you belong to him ?
BUlinf(. 1 am his servant.
L. Ddamere. He lived with him in the house
all the while, he says.
Billing, Then about the latter end of July
%e went out of town for three days to Epsum,
and then he came to town again, and con-
tinued liero till the time be was committed to
4be Tower, and never wu in Cheshire since
tbe 6t& of April last.
X. if. Steward. How cam^yoo to remtn*
her so punctually when he came to town, and
that be staid here all the while P
Billing.' I know it li^ my aoeouiits for tbo
journey up, and by the tradesmen's bills for
the provision of the house ever since.
X. U. Steward. In what capacity did yea
serve sir Uobert Cotton ?
Billing, I bongbt in all the prorisioB for his
house, and paid &e tradesmen's bills.
X. H. Stevard, Have you any papen io
your pocket that will point to soy partiGidar
time?
Billing. I have not the tradesmett's Ui
here, my lord, nor my own accounts; but I
have looked upon them, and by that I moi ssn
what I have testified is true.
X. if. Steward. Who do you call nat| my
lord?
L. Delamere, Call Margaret Davis. [Who
appeared.] Pray will you give an nocomt It
my lord, what time sir Rob^ Cotton oune to
town, and to the best of your TomemlmooB
when he went out of town again P
Davis, He came to town upon the taith of
April last, or thereabouts, and he Ims not bses
out of town any night smce, except it were is
August
X. H, Steward. What day did lie come is
town, do you say ?
Davis. About the tenth of April.
X. H. Steward, And you say be did not go
out of town till August ?^^Davu. No, ny lonL
X. H. Steward. ' ^
Davis, I was (
him.
X. If. Steward. But bow came 3roa to be
so exact as to the time ?
Davis. 1 saw him continually every day. .
X. H. Steward. How came yon to see him ?
Davis. I live with him in the house.
X. H. Steward. Pray recollect yoursdf ai
to the time he went out of town, for I peroepie
the other man says it was the latter sod of
July.
Davis. It was in Angnst certainly, my lord.
L. Delamere. My lord, the otiMT witness
saith it was the latter end of July, nod that
may be very well consistent, neither of Iheai
speaking to a day.
X. H. Steward. Well, are you sore he was
in town all the month of June ?
Davis. Yes, he was.
X. U. Steward, Well, who do yon call next?
L. Delamere, Mrs. Sidney Lane. [Wbp
apiieared.]
X. If Steward. What do you ask this gen-
tlewoman ?
L. Delamere. I examine her to the same
point : and I question not but I shall make H
out to your grace, and my kirds, none of us afl
three that he has named were there at that
time.
X. H, Steward, I shall be very glad of it,
my lonl.
. li. Delamere, Pray, Mrs. Lane, will jom giro
an account when it was sir. Rebsfff Oetf ^
came to town, and how long he staid Imr?
J mykM
d. How do you know tha?
I constantly m the house wiA
^79} ^^^H Jbr High Trtmm
. MfS* Jamm, fle came to town the K^n\
before the oorountioo* and never by out of
town 1 mto ftiire alt thoso thret; mODths of April,
May» and June, alier he cauve la town.
L. fytiitmtre. This gcaUewowaa, my lord,
Ii%*ed in the Bojtie bouse with hitn.
Mre. Ztfiie. I did Eo, my lord, niid saw him
«T«ry night and n^on»ui|f.
Lr DeUtmerc, If jour grace please, I have
two or three more witnesses to tlie ianjc ptir-
pose ; but 1 w otdd spare their lordaiiips Ume^
iflhb miiotbe tully cleared.
L. JJ* SieitMrtt Pray, my lord, do ttol
abri<1g« yourself, for I know my h>rd5 wtU not
giud^ the time, but are very iiesirous you
•linuhi hate full liberty in what is fiertirteuL
L* DtlaMcre. Then I desire Charles Reeres
may be called. [Who appeared.] 1 pray,
iliy lord, that this man may give an account
ivhat lime it was air Robert Cotton came lo
U)wa, and how long he staid here ?
Reeves, If it please your lord§hjj», he was
in town before the coronation, and I &aw him
here every day from that time till ailer July
«)nceor twice every day.
L. if, Sienard, Did yon belong to him ?
Kerpet, Yes^ and I do now.
X^ H. Suwitrti, In what capacity, friend f
Jleevct, My lord, I am bis footiuan.
L. Dclamerc. May it pleaiie ycur g^race, the
next wiineat I have to prodnce ii Mr. A&b-
humham ; bein^ he cannot eaaily remove, I
bOff be may be beard In ibe place where he is.
Z. if, SUward. Ay, let liims|)eak wh^n* he
11, and let bim speak out.
L. Deiumere. Pray Sir, will 3'oti please to
reooDeet yourself what time you saw sir Robert
Cotton t and u here, the last summer ?
' AMtirtifmm, Mv lord, I bring at air Robert
Cotton^s house at \\ cstminstt,r, he desired me
to present a petition olhis to the House of Com-
mons for him, and it was about the latter end of
the lime allotted for petitions, I cannot exactly
kdl )vbat duy of the week or month it was, but
i saw bim that day 1 presented his petition, and
I aaw him at the Committee of Elections iw 0
f»r three days after.
¥ L. Delamerc, ^ir Willium Twisden, I desire
nay be alao l>eard what be has to say to the
aome jK)int? [\\ ho Jinswi. r» «l U* the sftne cHed.]
Lw Jhlamert. Mv. Hc^eniiJ|;;ham b» my next
witneaa, my lord ; who I desire tlmt heVouhl
ylcaaa In give yonr grmea and my lords an ar-
i^ount, when Be remembers la hare seen sir
Hobcrt Cotton in tonu.
Mr. Mev^mngknm, My lord, it was a more
tbmii oniiMry oecssion that makes me r»-
msiber tiM thing aad the time so particu-
lar. I «*•■ cngafad in m dispute in the tioiiiie
III' CooMBfUit BMfit my own vleotion, and
ilMi was tijpoti tke !2ad of June ; then was a
oat ddbaled hi tbii House, whcUser a mayor
that waa rbded a b«irgesai Ihr any town
could sit U|Kia his own return? It wan then
famied be should niiL Aftd lh« next diy,
frhicli waa the 3rd ni' Jtine« anolbv qnestion
c«oi« 00, whtthcr sir J^jmyk VfJ"
A. D. 1686; i
1157*
duly elected and return t'd ? And T rcmemb
at that time 1 was walking with sir Robert Co
(on in Ibe Court of Ue<jui«ta, and Mr. Nea
came out of the bouse and told me, that it w^
ouTied by five, that be was not ; and then
Robert Cotton was with me.
X, If. Sieuard* So you speak as U> the Undu '
mid 3rfl of Juiie f
ITc .. My lord, had it not beeorj
npon I ;lar occasion, I could not haiM
remen i i ^ 1 » u 1 1 1 1* li me so exactly .
L, H. Sicu:ard. Vou give a very poo<l toke
for your remembraDce, and my lords hea;
what you have saiil.
L. Dektmcre. Will your grace please tha
the clerk of the House of Commons may f
called, and examined to the Journal of C
House, w hen it was sir Robert Cotton pf>
hts [)etition, and that will tix the time aa
what Mn Ashburnham and sir William Tm
den have said ?
L. H, SlewArd, Call whom yoti please, mt
lord.
L. jyehtmtrt. It %tem^ he is not ready, btlll
I hope I have given yonr grace and my lordtfl
suthcicnt aatislaction, that sir Robert Co"
was not there at that time tlmt this fellow sp
of* 1 will now go on, and prove Mr, i
was not there neither ; and the Or$t witiie
call to that, shall be sir Willoughby Asioa
whom I desire yonr grace will be pleased
hear s|teak in his place.
L. IL Steward, Well, what do yoo aay, i
Willoughby ?
Sir IrV Aston. My lord, I desire to be guided
in what account 1 shall give by the questiooa
that shall be asked.
X. if. Steward, What is it you ask iur WU-
lougbby Aston ?
L, liehimere. Pray can yon remember, 1
Winou;?hby, what tune it was, «nd whetha
about the latter end of Nay last, or when, thii
3'ou know of Mr. Offiey'sWngatyonr bou
and bow long he tt&id there?
8ir If. Aston* I can gire an account of lii
motion for ten days together, but that perliafi
may be more than is necessarv.
X, H, Steward, It will uotl>e improper, Sir,]
for yon to give as exiKTt and particular acooun'
as YOU can of the times.
Sir W, Alton* If your grace please, I wU
doit
L. B. Steward, Pray do, Sir.
Sir W^Aitom, Upon iheSGih of Ma¥,wbic
was Tuesday, at nighl, Mr. Oifley and hisladj
and some of their reJatiomik, cotuc to my boose ;
upon Wvdoe«lay the 37th of ftlay Mr, OWej
was m lick tliat be kept iiin elLambtr and hii
bed ail day ; tipon ibc f«h of May, which was
Thurs<liiy, he wn« so ill tlmt he kipl his cham*
ber all day, end rose about fivo at uttrht, and I
then waited upon him, and sat wiiii him three
hours in his dressing roi»m. On Friday ttm
f9th of May he wept to cburdi, that itey was
employed u great part in devotion* U|}Ob lh#
SOtb of May, which was Ssaimky, Mr. <M«y
nod his hidy went, and a great pari of my h*
676]
r JAMES 11.
Trial of Henry L .rd Ddamere^
[576
mily went with them, to one Mr. Pickering's
six miles off my house, there thev dined, and
returned at night to my house. Upon Sunday
Uie 3l8t of May, I have a particular remark
whereby I remember that Mr. Offley went to
risit Mr. Needham. Upon Monday the 1st of
June, Mi's. Offley and the women of my family
went to visit my lady Brooks, but Mr. Offley
not being well, staid* at h<mie. On Tuesday
thci^ud of June he was still at my house, there
was a great deal of company there, and he was
in the company all the day Ivng. On \Ved'«
nesday the :5rd i tell »\ek in the morning about
four of the clock, but Mr. Offley was in the
house all the morning ; hut in the afternoon
he went to make a visit two miles from my
house, at a place called the Ware- house, where
the ships ride at anchor: and upon Thursday
uiomiog, which was the 4th of June, he went
IJrom my house. Now, if your lordship desires
to know any thing about any particular time
about this compass, I'll give you the best ac-
count 1 can.
X. H. Steward, Can you tell me where he
went wlien he went fiH>m your house ?
Sir IF. Aston, He went directly home, as he
said.
X. H. Steward, Did you hear at any time
that he staid by the way, between his going
from you and coming to his own house ?
Sir W. Aston, My son went with him two or
three miles of his way, and I heard that at
Middlewich he staid to speak with some of the
Militia officers that he met with by the way
there at a muster, and afterwards went directly
borne.
L, H, Steward, Pray is the usual way from
his house to your's by my lord Delamere's ?
Sir W, Aston, No, my lord, directly another
wav.
L, H, Steward, Will yonasksir Willonghby
Aston any more questions ?
li. Delamcre, No, my lord.
Att, Gen, If your grace please, I would ask
sir Willoughby Aston one question. Sir, I desire
to know how far it is from your house to my
lord Delamere's?
Sir W, Aston, Sir, it is about eleven miles.
L, H. Steward Eleven miles you say. Sir ?
Sir ]V. Aston, Yes, my lord, eleven of those
northern miles.
L. Dclamerc, My lord, I have some more
witnesses to examine to this point.
/i. //. Steward, Call whom you please, my
lord ?
L. Delamcre, I call Mr. Gregory next, my
lord. [Who appeared.] Pray give my lord an
account, when Mr. Offley went from sir Wil-
loughby Aston's last summer, and whither he
went?
Gregory, My lord, my master went from sir
W. Aston *s house —
Z. H. Steward, Who is your master ?
Gregory. Mr. Offley, my lord. It was upon
the 4th of June at nme of tne clock in the
morning, and went from thence to Middlewich,
u4 wm at home at his own houM about fire
of the clock in the evening, as I was told, for I
did not go directly home with him.
L. H, Steward, Was he at Mere that day at
my lord Delamere's?
Gregory, No, not that I know of, I was not
with him.
L. Delamere, Then pray call Thomas Ridd.
tWhn appeared.] Pray were yoa that day with
Ir. Offley when he went from air Wiliongfaby
Aston's?
Kidd, Yes, my lord, I was.
L. Delamere, What day was itf
Kidd. The 4ai of June.
L. Delamere, Then whither went he ?
Kidd, He went the direct road to hit own
house, I never parted from him, nor did he
stop any where till he came to Middlewidi,
where uie country Militia were exerciaing ; aad
he just alighted off his horse, and spoke with
major Miiu^aw and some of the ofiiccrs,- but
never so much as drank by the way till he
came to his own house.
L, H, Steward, What! To his house io
Staffordshire.^
Kidd, No, but to Crew-hall in Clieshire.
L. H, Steward, Does Mere lie in the road
between sir Willonghby A^n'a and Crew-
hall, so that your master might be there withio
that timeP
Kidd. No, that he could not do.
L, H, Steward. Were you with BIr. Offley
the whole journey home ?
Kidd, Yes, my lord, I was.
L. U, Steward. Were you no time fton
him ?
Kidd. No, my lord, I was not.
L, li. Sletcard, What time did he oome
home?
Kidd, He came to his own bouse about four
or live o'clock at night.
L. H, Steward. Aud did not he go ftom
thence that night ?
Kidd, No, my lord.
L. Delamere, Now, my lord, I will prove ai
to myself tliat I was in London at the time be
speaks of. Aud first, I desire sir Jamea Lang-
ham may be heard to that. [He appeared, iMt
grave no evidence.]
L. Dclamerc, Pray call Booth, [who
appeared.]
L, H, St
nameP
'teward, >Vhat is this gentleman's
L. Delamere, He is my brother, my lonl, his
name is Booth.
L. H, Steward, What do you ask him ?
L. Delamere, Vr2Ly can 3'ou remember what
tiroc iu June you saw mc in town hereP
I 3Ir. Booth. My lord, 1 saw my brother here
i in town the ;ird, 4tli, 5th, aud 6tb, and soonta
the 10th of June, and the lOtli of June I went
out of town myself; I saw him sooietimci
tvi ice or thrice a day in that time, ibr I did Ml
lodcce above half a score doors from liun«
L, H, Steward. Where was that ?
Booth. In Great Uussul-street.
L, H. Stcwttrd, How come you loi
the time so particularly ?
Mr. Bo^th, It inui tfiM day H«f^mii;Ut iK'lat*^
1 ,.,-.,» .,, ,.i' *,... r. vvliich MH» Wt'iliif-nday the*
') it ntft nt^n li»r tli»t imr
:, I .... i..,,, • t ^i?*'! nil* T* m,.T L*'i! |t ftii
inch aii to hr able |i >> r it
An. Oen, Pniy* i . i koww
F yoiir brotber*s going owt of towp t»\e se?th at'
lay?
Jlr. Ba()(*. I 1»car«1 He wft«< gone out of town
out that ttine.
** f^ H. Stfhtird Why th«i, when came he
bilMrr toitmti n^iiin i^
Ml*. litMtth \ v^uwii tf'll, hut 1 84%? biro uiion
• 3rf| ot Juor in the eveoiii^.
Ait Gtti, My htrd, tt is ut)t (lossible for him
jta dr> in thai time, if lif nwJe jwsL
X. H. Strn/inl, l]ir (hd iimkf a ^Tt^l it(?fil of
r hnrkvtnrcl and forward, that is ceiUin.
L. iJrianuTf \\\' liintlu r t\nf< ^ot ktlOW
I h«*n I t^ . s,
t. U Sf, ... '. luiudlhe
p(»jertiotJ that hn^ ii)ef*ii fnadt*, tor it carries a
at dcnl of we»|jht in it. It is ptainly pru^eil
IMO \«itiieii&«^, that yi^^Hi went oiU<>f to\\ri
lie 27ih of May at nine of the flock at night,
pel rode to F^omlcstlrm, nod the nr%t i\iLy came
I Hik'hin 3il>ottt noon ; ihtTi they Irfl you and
eiunied h»ick nj^ain t'» Lnudtici ihat ni)4:ht» and
^ riti loh! thcni yoa wen^ ^oiug to aee a iick
fehitd of your*s io lUieshire ; liovir catue yoo to
Hake ttuch |iost haste hack again, that ho
boa Id K'C you here in London the 3rd of
uueP
^ Mr. Bnoth* My lord, I am evrtaio I «aw
him that dny in the e^aoiiig^ and so on to the
' nth.
L. H, Slewani^ Did iny lord then tell you
bow your friends did in C(u*sliirt! ?
Mr Bnolh. t ran not remember the [lajrticu*
[lir di«co:ir«e wc had.
Att Got. Pray, Hir, v^ hen did he tell yoa
Llie came Ut to^t n f
L, R, Steward. You say yon used to sec
bim e^er^ day once or twice adwy P
Mr. Bmih. Vi^ 1 did so.
L, H. Steward, Fray where was he the Umi
^%fJttn«?
Mr. Booth, He wa« not come to town*
i* H, Stntard. Hm¥ long lime waa it before
Ikat^ ) on had not s«?en him f
Mr. Boath, 1 bad not seen bim of sereral
ya before.
IMimere, Tf it \}}pi\^^ p>«r grace, here in
DOther hi-otUtT of i ntw me at the
imetime; and thi ^^ tny t»rotber, 1
c^pe bff !!» a irof>d witucbu.
L. H, HtnourJ. Ay, God fbrbiil elae ; wtiat
» fda name ?
L Dfiamtft, Oenr^e Booth.
X. H, Stettard, W<»|l, what v^iy v
Mr. 0» Bool A. Mv lm\, I *a't» i
I haunt ypm tfa« apfiaii vJ Mr. I*^tttta ; and my
' XI.
brother waa in the hottse of kirda at that tinre^
\%hi('b wtL% the 5th of June.
L. if. ^i€irord. My lord Di lamere, T think it
OOtalll ** to J'iil \ '»tt ''» rtiitiil ot i(n«- iMnir whicH
It \% tU y<'tii I >inswer
to: does v<**" ^ \. Vfjitoiil
of Ifiwn ifie 3?ih «>t iMny P
L. Drlamrrf, No« my lord, I do not ; 1 ac-
knowledge I difl uto.
I. B Siemard, Then it wil! be fU for yoa
Ui give an actimni ivbere yen were the Sititb
day of May , Hod no ail ali/ng til} tiie ^rd of
June?
L, Delumrre. If yotir umre please, 1 hopa J
shall give you fnM aiti t" ' i '' " ' 'd
bv ; Hit I bine «he wf H
ot'iny bc-in^ in town, at ^ui •' •> um^ ,<.... t « vuld
not be ill Cheshire, wlicn thi«t fellow wayn f
WHS ; and ihMl is my hiril Li»vebce.
I iL S/ia«rrf. '[here i* my lord Lovelacf:*
wimt woukl yon a!.k him ?
L. Deiumt^e. Whether he did not jsee me at
lite trial of toy lortl Mactiesfield iti the houst
otlordjt?
L. Liftthct, \ was in the hotiae of lord^thai
day that my lord Maeeleafield'S trial wn9. and I
remember 1 did sec my lord Dclamere there.
L, 1i, Sfea ard. But we are as much at a
loss* now as ever we were, for what day that
trial was docs not appear* what day was my
lord Mncclesfield'B trial ?
h. Dclajntre. The JotnoJil of the House of
Lords proves that lo be thi* 6th ol June.
L. Lf/pehce. My lord sloo(i just by the bar,
and if 1 am not mistaken took notes.
L, i}efamrre. My lord, 1 hope now 1 liafe
flatiiitied your grace, and the rcsitof ray lorda,
thut none of us three whom this fellow haa
mentioned were there at that rime at Merip,
when he s^yfi v>c were : For uy^' own part, I
do positively afiirm, and I speak it as m the
preseote of Almighiy God, that I hai^e not
Keen sir llohei t CottotI at my hou>»e that I know
of thcie matty yearn; and 1 believe Mr. Of-
fley Wfts tierer in r ' since l was nitt^tcT
of it : and 1 do I roiest^ that to mj
knowledge, 1 iie%ir c.,,.. *. ■ iace of llus iiia'*
till now iUiii he ih produced a.s a witness wgain*t
me 3 I am «ure 1 nei'er 8p(»ke w iih liim m all
my life, nor never sent tor him to come to mJT
houjse : iind if yotjr lordiihip please to conBideff
the story that tie tells, it will e«ii<ily apuear to
bcrery improlmhh% for l»e nciihtr tells yoU
who the messenger waa Ihut wr?* »ent lor Inm,
nor the %ray that he rsittt? into the Viouso |
hich anv body thai 1
could iioft mtstttki^. i
htnn
liiin
this
„ gliTiC B.
. in i\t the
frtr i have hot on«
LJiat by the stable*,
uti iho iiuiiac. And it
of the year, if it wer©
ivrlotk ID the evemog he mw«»t
u which way he came iw. And,
br«ide», my lonla^ ia it prob«bl« wiMtt ba aaya^
8P
ate^
J
579]
1 JAMES II.
Trial of Henry Lord Delamere,
[589
that he should see nobody stirrinnr ahoul the
Jiouso except it were this man without a hand,
that he says was sent for him ? 1 assure your
lordships, *I have not, nor had my father ever
tliat [ know of, any servant or tenant that was
maimed in that manner that he speaks of. He
saiih, he was rt-connncndrd to us by my lord
lir:.ii(!on : hut ho cannot tell your lordship any
thiiir^- that ever he hail d<in*e to recommend
him either to him or us. I did ask him what
important service; he had ever done for me, that
inijfht pivo a crtdibility to isiy r :»jploying; him
in sufrh u husinrss us this. My lord, I eannot
Jielp it if people will tell false sfories of me,b!'.t
I li(»|>e your lordships will consider the credi-
bility of it ; is it to be ima^^nrd that I would
take a man 1 knew nothing of, wyow another
man's word, into so great ii confidence as to
«!urphiY him about a business of this naturel-* I
ant ^lad that he was culled in here apfain for
your lordships to view him. I heset^ch your
lordships to look at him ; is this fellow a likely
fellnw to be used in such an afluir ? Does Xia
look as if he were fit to be employed for the
raisings of 10,000 men P Does he seem to be a
man of such considerable interest iii^his coun-
try ? A fellow, that though it lie not' direct evi-
dence, yet by several witnesses 1 have shewn
ti> l>e a man of no reputation in his country^
nay, of a very ill one ; and could we have
none else to employ in a matter of this mo-
ment, but such a fellow as liis neit^hhours
would not take his word lor any thin^ ? It is
an improbable sU)ry upon these accounts, if 1
should sav no more. Your lonlships likewise
see, that he is so well thougrht of, that he dare
not l)e trusted out of Newgate, but is kept $till
a prisoner, and as such ufives evidence here .
and I know your lordships will not for<;fct that
he swears tu save himself, havinsf been a rebel
bv his own confession, and he would fain ex-
chansre his life for mine ; till he has a pardon,
which as yet, as 1 am informed, he has not.
The objection will still lie upon him, that he
swears to save himself, which will render his
testimony not cre<Iible, .and the law requires
the witnesses in treason, to be credible ones :
and yi t, forsooth ! this man, that nobody that
knows him uill believe a word he savs, must
he taken to lio a iiian of iiittrOfrity, zeaf, and in-
fluslry ; the man of nianapfement and dis-
p'*itch ; the man of interest and authority in his
L-miitry ; that m thinff can l)e done, "but he
nui>L have a hand iu it. My lord.^, I think I
need say no more of him ; your lordships lime
is precious, too precious mdeed to be spent
upon such a subjert, and so I set him aside.
>ly lonU', there is a thing that f perceive the
kin^^'s counsel lay a ipreat weight upon ; and
that is my goin*; down Ufton the 27th day of
l^Iay. and my r'i-e(|uent riding post to and fro.
I shail now satisfy your lordships of the rea-
sons of my journies. The first time, which
was betwixt the coronation and the sittinqf of
the parliament, was upon this rtasun ; 1 went
.down to take possession iijion a lease of a con-
•;j««.l,[g Talvt wliich wat rcnevicd to me by
the bishop. I did not think of gom^ down at
that lime so soon ; but 1 had word wrote me
out of the country that the bishop was ill, am)
that obliged me in point of interest to make
haste down. And tuis 1 shall prove by one
that was attorney for me, and another that wa4
a witness of my taking possession : and for
this, I first call Mr. John Edmonds. [Yiho
came in.] Pray, Sir, tvill you tell his g^^^ce
and my lords, what you know of a>y conung
down "into the country in the beginning of
May, and u^xm what account, and what time it
was ?
lldmnnch. l^Iay it please yoar lordship,
upon the fiUh of May my lord Delamere did
me the honour to come to my honse, and he
staid th.ere a little while, and desired me to be
a witne^ss of his taking possession upon lease
of my lurd bishop of Chester's, and wc went
into tlie house that was next to mine, which
was and there did take possession.
L. II. Steward. "Where is your bouse?
Edwnnds, At Boden, in Cneshire.
L. H. Stcu'ard. When was this, do you say f
Kdmovds. The fifth of May.
L. JJelamerc. Pray« ^r, will yoa satisfy
my lord, whether the bishop was not ill at that
time?
Edmnmh, My lord, I had been a little be-
fore at Chester, and hearing my lord bishop
was not very well, I went to Mr. Allen, and
told hi in I was desirous to see my- lord, and
speak with him, if I might ; he told me my
lord was so ill, that he would speak with no-
body.
/. H. Steward. Was it a lease for yean, or
a lease for lives ?
Edtnonds. It was a lease for lives.
L. H. Steward. Then that might require
my lord's taking possessioa. Who do you call
next, my lonl ?
L. Delamere. Mr. Henry.
X. H. Steward, What do you ask this man,
my lord ?
X«. Delamere. Pray will you givebis grace anil
ray lords an account whether you were not at-
torney, and delivered me fiossession upon the
lease of my lord bishop of Chester ?
Henry. My lord, 1 was attorney by appoint-
ment, and the 5th of May last 1 delivered pos-
session to my lord Delamere at one of the most
resnarkable places of the land that belonged ta
that lease of the bishop.
L. Deltimert. My lonis, I hope this is a
satisfactory reason tor my goiniy down at that
time, the bishop being ill, and the lease bein^
worth 6 or 7,000/. The next time that I have
to si»eak to, is, that of my going the S7th of
May, and ibr that I give this answer; I did
go out of town the *i?th of ATay, the occasion
of my going was, 1 had taken up a resolution
before to go see my child that was not wcUt
but 1 had not taken my journey so soon, net
with such privacy, but tiiatl bad notice, tbcra
was a warrant out to apprehend me ; and knon^
ing the inconyenirnces of lying in priiBO, I
was rery wiiliny to keep at longonloriiMliaHy
Ml]
^/Ir High Ttimon.
r ^»'
I
I'- . -- , ^^ S
HluJr I WAA tilt ic%unU 1 «>uv lUheiii;
bui ^hitc I wiiw Uit're, mv t^ i* im fex-
{ifcais, tttdt aa tu I tit; vviiiTaiit s'nv liotu'd it wik%
m nit<«tnk' . and lliore wrr; no s'ii'Ij ilkias;' ^ l>ut
iN^ rj W1I8 vci^ ' 1 iiileiided lo
K I nuM r ||}»; ihU WHS
li i, and i fcbAll
» ! % (li;&l ] cuine
ftud fpr DO n ),
L. /i. ^'^/^f.;u, 1 riii say you went to see a
sick cliitd ID lUc cvjutitiy,
I. }}.^>.:Tu»^re. May it please your grace^ my
»• in i*€re, Hrulw ixie word thiit tny
L. H^ Steward* Pray whtit made you come
Lack su hoou f
L. Dclutftrre. Bf-cause I bad an express sent
me by iity wife that my olber ncm wat tike to
die,
X. f/. Sifmurd. Call your witness, my lord.
L. Diiiumre, Mrs, Krli*ey, [who came in^
I^ray will you >^ite ao account what 1 fcatd,
*V' ' ■ vn^ wjw liie occa&ion ot" my
t' ly and chatif^uibf my name i*
-'*^ ■ ' f ' ' ' nrd, [je 6aid| liiere
was a ^ t tiim up» atid Uc
gate ii4i i..». .^. » «..»,^.a j bebides Itii httle
■on iu the couutry was i)l,
L. n ;v r ^. J. What, fihe lived io the
^ ^ly lord, 1 was iu the house
with him.
L, DeiQwere* If your loiilshipf plcaie, my
matber mxiy lie CKaniined?
L. H. i^iewariL Ves» wtih alt my heart.
£She nat hy hitii at the t)at .]
L. ii. Steward. IVav, ntailain, will you liA
ii|i your f oke, that my lordj may hear wliat
you mky,
\My Dthr-— ^*^' lords, this child of his
ilmt \\usi m ) , wus more tliaa ordiou*
fiiy prcciyii- u, »..»>,,*" r«;jjard it wuti hyro lo
iiim Mt ih.it tirnCf whcu he wua an iiHmeeot
)i4»ip h1 in:ni.(:i'i he 18 HOW), ti Mi'i'^^iucr in tho
ail creased Im n to the
chiidt UtuI ij'xi iitid given it to him when he
wiM) HI thai affiiciioQ. My lonl, t ktinwiiij^^ ilte
afiWatioti thai the IuUkt uftfl 'Miih had
t«» tfict chihl, m)' caic in Uii j . ihooght
4>iJ ' ' ' luorc exj(*rciM:d ^huuL haii : Uie
cl' 1 1 hut I saw tJic chdd decNne, and
lhi'*tr;r^ t ivu» of 0|ii ' ' ' " ' '
wtraiir^t, and 1 umt U|)
€iik' -M I
I
ijMle>ed, bccauM» ha waa very phvute alt thf
whilL' tif VV31H iu thu' cuimti V * hiit v^liite he
.W ' OU
Wii ; , my
^au^hicr avitUvr hiui |>opt, li he iuirud«U l9,»«e
aiption*
him not
A. D- IG86. [582
hu fon alive. And tlieixfupnti 1 think be snada
what husie hack u^'aiu ht^cuutd. ^^
L. h. isi€wurH, Were you ia thti same hoc
wiih hini| Mndain t
iAi\y D^h:mrre iVfy lord, f riy, I did not
see him *Lii tue nine be vra^ ihrrrv, 1 oul^ tell
you what I ht-aril.
L, H. atcwurd* How long was he in the
country r ,
Lady Dtiumert. 1 cannot exactly tell that, ]
think he was not above tu o dayh.
L. H. Sfcunrd. lie mu^t he hut one da? 1
comfHitation ot umc 'f
h, Dciametf. Pray, my lord, I witl satisfy
you in that pomt presently : Mrs. Kel«iey will
t^wc un acoount ivimi tiuir' it hus Utat I C4tm«
down, auit when I wcntuwuy.
Mi's. Kchctf. My hud t^arne do^n on the
8;iijbttih-day nii^ht, und staid there Moudayi
and went away the Tuesitiiy morumg.
L, H. Sti:wiird. Look you, my lord, the 27th
of May wan iiiion a Wo*lnet*day, thai ni^ht
ytpu %vent out ot town« sind went to lioddcsdiin.
Thursday, ^vhich wan the 2Bih, you came to
Hitchni at ni»oii. Friday was the !29th. Sa-
turday the 3Qth. Sunday wns liie Slst, then
ym\ came la yH»nr housf ; 3louday the Isl of
June, Tues^lav ilie 2od, then you came away,
and upon Wednesday the 3d you weio in town,
MO says your bmther,
L. J/ehmcre, It was so, my lord.
X. U. HUward. Which ^$ay did you con
back?
L. Ddmnvt. I came post tbroiivfh Corentryi"
my hnd, uud that was the time that Hope speaks
%}\\ that 1 told him J tmd come anuttier way into
Cheshirei when 1 came down.
L. i/. Steward, My lord, you say 3*ou went
dowu lobecrete yourself from a wntruut that
yon ap|HihL'i»ded was out against you, and tliat
made you jjo a by-way ; how come you then
to come so public back the ordinary pott- road i^
L. Dciamcre, If your ui ! se, I
t<dd you 1 bud an cjtpres^ .n my wit^ ^
thut I old me it was a mislukc u^ m liie ^^arruut^
but that my chdd w«i» v«ry ill, and 1 mns^t
make Inuite up.
L. M* Steward. Hare you any foore wit-
nesses, my lord ?
L. Vciiim^rt, Yes, my lord, 1 desii-e M
Kelscy may be called. [He came in.]
L, H. Siswunl. Well, what say you ?
Mr. Kvhrjf. My lord came down upon tin
' tn of the clock, and sta
. \ J nod on Tuestlay mora
lu^ at UuLC ol ihL' clock in the mornmgf li|
tuok liorso for Lofidou ; and I have letters I
■ 'm 4tlh of June, which wa
me my lord was come f
L. H> ^ hose are thos^ two telter»j
Ml\ A'ci.r .. . i,ty were Irom my lady an
Mis. Xism liooth, and bnth cunjc by the
po¥t.
L. Dtitiwcrc, 1 shall ciiH oiu; witueaa mori^l
tny hii d, to prove that my chdd W4S !»ick her# i
tu tow o, and tb« Um% \ tod that is sir TUvtmii
683] 1 JAMES II. Trial tf Henry Lard Ddamere^
[Sir
[5M
Millitig^ton, \iho was his physician
Thoinus was culleil, aiid can re in.]
L. Defamere. Pray, sir Thomas, can you
recollect yourself what time my son was ill,
last year Y
8iV 2\ MilUnfiton. My lord, I was sent for
to my lord Delninerc's son upon the 28th of
Nay, and 1 found him then very ill, and he
continued so for two days, insomuch as I told
my lad V Delamere, his mother, that I thought
the child would not escape. I told it like-
wise, to sir James Langham, who is my neigfli-
bour in Lincoln's- Inn-FiHds; what tfaev did
lipon it, whether they sent for my lord l>ela-
tuere to town or no, I cannot tell, but 1 know
to take away the Fnrea, honoufri, ud cttatat
of any of your lordahiM, if it be m proof auffi-
cientto make you guilty of treaaon, lor then
to swear you were intended to be drawn mto
treason.
And, my lords, as to the truth of the thief
itself, that there was any message or corrca-
pondeuce between the late duke of Moomoiitli
and me, I call God to witness I hare neither
wrote nor sent letter or message to him, or re*
ceived letter or message from him this three
vears : I cannot tell what eipectation he might
have concerning me or any body else. It it
rery probable he might bare expectation of afl«
sistance from some bo<ly, ana that without
rmctually this was the time, by reason the bills such expectation he would not have made the
wrote aVe dated on that day, othenvisel coil Id ; attempt he did: but, my lords, all that is
not have remembered the time; but the bills
lieing sent me from the apothecary, I tind that
date to them.
Xr. H. Steward. Pray, Mr. Attorney, will
you call Edlin again, or Vanx, either of them f
Alt. Gen. Here is Edlin, my lord.
L, H. Steward. Where did you part with
my loid Df lamere, and when P
Edlin. Up<in TJmrsday tlie 28th of May at
ffltthin.
L. H. Steward. Wliat time of the day was it
•rheii you parted ?
Edltn. It was about trn of the clock.
L. //. Steward. He went forward post into
Cheshire, did he not?
Edlin. fie did not go post I suppose, for he
went unon his o» n lunrse.
L. H. Sieuard. Did he go upon his own
horse P
Edlin. It was the same horse he went to
■Hitcliin upon.
L. H. Steward. Have you any more wit-
nesses, my lord?
L Delanteie. No, my lord, I hope f have
given their lordships satisfaction in all points,
and need togite no further evidence.
nothing to me ; I hail no correspondence either
by letters or messages with him ; so that aH
that has been said upon that point of hii ex-
pectations, and what he declared, I most give
the same answer to, that I gave to the evidace
about Jones's message, that adniittin||' it to be
true lie diti declare so, yet, no proof being made
of an actual correspondence, it is no more but
only an intention m him to draw men into
commission of treason ; and if that be allowed
for proof of guilt, 1 must repeat it again, ihere^
no man can be innocent
U|M>n the whole matter, mv lords, I most
lea%e my case to the coDsideration of ymir
lordships : I am not master of so much lav
or rhetorick as the kind's counsel, to plead in
my own cause, and I hare had but little time
to recollect and apply my defence to my aeooM*
tion ; but I ho)ie what evidence I haTedfined,
has given your lordships full satisfaction thU
I am not guilty of what I stand charged with.
And aOer all that has been said, my lenK
f would beg your lordships to consider this,
that if in case I were guiltv of theae tbiogf
a d were conscious to m>self of having beoi
engaged in an aflair of this nature, oan aay
L. H. Steward. Have you any thing more ! man imagine 1 could have been so liardj as 6
then to SHV, my lortlP . have surrendered myself umm the king's pio-
L. DcUttner- . My lord.^, 1 acknowledge I clamation : nay, if 1 w ith those other two gen-
did goat tliuttinie privately a by -road, and by "
the name of Brow . ; and as for Jones, who it
is said came from Holland that dav, I a|ipeal to
him li.ms<'li, and I ca'l God to vt irness 1 never
sa\« the man before now in my life ; nay, till
afier I was nuulea prisoner u|K)n this account, 1
tiemen, thai he has named, had had any 1
action*! of this kind, with such a fellow as In
has been made appear to be by hid oeighbouii
(that nuist nee«ls be ihonght a man ot noftilh
because of no reputation, lhou^h he ifives hmh
self a great character as a man ot gveal iil-
nei er so mucii as heard of his name : and your \ tcrest, <»f wonderful dispatch and dexterity in
lori**«hips sec hv the proof<^, that all that has
been said n<rainst me, except what this fellow
Saxon has testified, is but hearsay, nay iud<*ed
but lu.ar^iiy n[M)n hearsay, at tlie third and
tburll> hanJ.
Aiy ioifis, if people will make use of my
nanie, and say tliis, and that, and the other,
and ainou«; themselves talk ot inessai>essent to
me; can 1 or any man in the world help it?
At t'lis rate who can be inmn^ent, if a man
must 1m' ginlty because others intend to draw
him inl«i treason ? For there is no more in the
utmost that this proof can amount unto. It is
milieyleasureof any two men in the world
the management of such matters) so as at mil
sight to put this large confidence in him; cM
it he imagined I so little reganled my own Mb
and all that is dear to me, as to have imimdwei
myself, were it not that f w as certain of my
own innocence and integritv ? Jafe itsrif, mj
lords, is to be preferred above all thinf^M
honour and iinocence ; and Job saith, akra kt
skin, and all that a man hath will be gireferlHi
life : and why should I be presumed to T
so little value' for it, as voluntarily to T
up m^'self to destruction, had I been i
that there was any one, who oouM'flrilJ^
testify any thing that eouki ktiit oMf - - e** '
'. f)cn<trs, tny loriLi, this rcry i\\\Q\v 8axon*
im but onr t?vnl«(nc<?» anil Kiiw tar v<»Q wilt be-
liifve Imid, 1 uii)«t Hi)biii(t it to you : bat surdy
*m€ wilue*ji Will never Ik* jsiiffirienl to eunricl n
inim of treiiKon* th<>U(rh tttouHancis ol' lieai' »aya
And flurh iriviiil circuii»!iUiii^e!i Ik: tacked to it ;
Mfi^ciaity when tliey are tackeii to an evi-
4&iiCf^ ivhicti, I i)oi*e BttVf your toriUhips ore
Rrfrom tliinkini; it fiet»«rves aciy crtHJil*
Aly briJ!!, 1 ilmrc your l«iivi! to ask this ono
|ii}HriOTi ; wo«)til not any of your )ordshi{iii
ink hitnt^lt in a had condiiioti us to his for-
nc, if he coLiM firotJn ' t, *' • ' - -^ *~
j)rt»\e hiw title to his t-^i
ErotJ^cr' "- -f 1 rtif tl*i- M,»v i i ..►.^, o,-,, » ..iT
f«? ai evidence as this woukl not be
wnfilov rt a ihU* ti» an estate, f^rrluin-
h (irticif nt lo deprive
a >•' < ^ aud all.
My loftla, I am not the only loan thitt hu<i
been, or may tie f^ifscly u<Tti»e4l : God ktiuivs
how iimjti the intst'orttint* ot' a tnl^e aci-uiiatiou
ttijiy full U» the lot of any of ymir lor<lshi|»Si 1
1>niy IhkI It iieter may ; but since thiit may
lappen^ ] <]ui »tion not but your lonlyhips wdl
bf- how, by biieaay crevluhty, you
c ' III! o H u r h a w icked nei ; for
ku f' jioM wilt not end in my trials if
til r in their Tillainy ; and iHrhnpjj it
ft) iMtTue to jiortie of ymir lord ship*, if
ail 's be rncouru^eJ, as 1 cannot but
tin. , V tVL- t\\**y «•'! ""♦
My lt»nb, Ihr ■> ihe lalion aff upon
yoyr pnir i^i *1in'? L ^, ; nsy, I may sav,
%i»tir 1 te now jiidjjrni^ tio- cause of
rrciy i; -iitrland* ttmt shall hap|>efi to
eanxe uncier iihe circuinMume s with niysetf at
any Inne lurejitWr ; for wccordi nifty a« you
jiifljyt ot' me novv^ jii»t so m Ul hitenor courts
be diiX'ttefl lo •^ivt;theirjiidi;mttnl«i in hkecaaca
in Ihiie to cooie*
Wntt lordj^hifM rery ivell know, blood nnc«
iniU ctto npvi?r ' ' rtni up ti^^ain ; and
thereibre unle^ i very clear u^ain^t
me, ynu^ f am hu>< , ^^ n not hazard the Khed'
din^ i>( my t>lo(Hl opoo h douUhd i^videner*
Cio<l AlmiifUtv ia a God oflMercv tmd LltpJity :
Our kw» the law ol tCn^itanif, iii a law of
KmhIi V .»oi! >Jt ii'v • :irTl JH»ih f io ' and the low
rt 4 -is in all
€:;■■■; .1 , . ■iiiij bein-
tfl^ticrent, or hot tloohlioi to v<*ur loriUhi[>af
(v'bieh o|tou the prmdk that f have roaile^ I
cannot believe it ran be) wlielher I am inno-
♦ Amonif
the
te«itimonie« of the cmelty of
kwii Jame«»
Ihcr
MMxiiors diif»o!ftition, the foi-
1., . '.,,
1 Saxioh,
>
linsl bird
I)
* pro.
•'
.ny
^
,*.., i ^., ip„ ,.*-.., nt the
T'
r hrin;: with ihc Doke
lit .a^...
!-<," |_rf*ttrr from Kiii>
iMDti $d, t
unjL^^e, Janimiy 15, 1
Afotodtit L
i'jUa'i Mctnuim part i, ,
A.D. 1686.
cent or f^iilty, both God and the law T^uifit>
you to acquit me.
My lords, t leave mysf lf» my cause, and
lhecon.se(]iiericeii ot it, with your lor<J»hips j am
I pray iJie AM -wine, the Almighty God dire
you in your detemii nation.
L, if. iift^!ard. Have you any thin^ mot
to aay^ my loni f — -L, DfUm€rc< No, my loi
L, H, Steward. Then Mr. Aitorne\,andy
Uiat are ot the king^a couui^), what have y
to Ktiy more f
SSL Gin. (Mr. Finch.) May it plAuse yc
. . ..A , . ., jjyy fiQ\)\^ ioriis the pee»> ot ui
. the priaoner at the bar: tli
;.^. ,,,.., u^lh been given rfji'-^* *\'t' fiobl«
lord in of ti% o naturt^s, pari of j i proof
and part ii eiruumstrmtial ; nn : i j^:: tt li«
allowed that there must be two mtnesses in
cases of treasou, and that circumstancea, though
never so «trong^, and Butfieient lo fortify one
positive proof, do not^ tior can make a second
positive viitnefis ; yet I crai'e leave to say, thiA
there may he circwiobtanees 8o Btroni; and co-
gent, $0 viuttnt and necer!(:^ry to furoish a po»
*itiu* testimony^ that will in law amount to
mttke a second witness, such at the law re»
f|uires.
My lords, 1 do not «ay every cifciim»tani
wilt do U, hut ttmli a« \h ne4:es!iiirily and vii
iently tcudifijj to the kame ilmii^ that was p
aitiveJy proved. A* for example :
If a man comes and svienrs ai^atntit anothef'
that he vatd he Will go inimt'diatf !y and kill
the kin)^; and anuihcr man that did not bear
thoMS words, comes and tevtiAeis hw lyini; in
wait, ttiat circumstance ol lying in wait«
that was an aeitou inditferVm in itself;
vet, when a[*pUed to the |K)Mitve proof, will
te a second wiintsa to hati^ly the law, whicll
reoutrea two witnesses in treason,
V niu»«t confess, my lords, when we will
make circumsinnce'v to be a second evidence,
they mu»t be 8ucha6«tr ' t ', ,^
to tortify I lie positive PT 1 1 ij
by the aini^le wiltiess: N^** iwiniirT luji oe
so in thi"* ca*^, 1 umst, as bccomee me, leave
Co your lord>»h»fis coosaieration. It is ntrt niy
buHinesit to carry Ihe c^ idencc further than it
will go, and I am mire ii u not my du*y to let
it io«<; m\y of it* w% ii»ht ; «iod ii tt have not
itiat foree it ou|;ht to tiarc, I «h^ittid be to
blame, ae not having done what bebini;:^ to me
lo do, 1 will ihrrrlore «la'c the fact to your
lonlahips plainly an it fstaiidn tpon the pnicrf,
antl aubmit the vt Itole tn your lord^hip>« 4eier*
oil nation «
My lords, tmv positive proof, wirii which I
crate Wve io Imxi". i« but by out? ^intrlo wit*
fki*a&t and that is Ha)i^on, and hi^ rvmeur^ is
, this, that Ixinif ui <-iir*ihiri\ wheir he lives.
he wa« srnl for about the ihird or ton i-th df
I JufM* last >t» my lord Urlamere's hou<e ft
I M^Te ; that ihrn* he wa* br- ijirtit mio &
i.. ,t toufit v^hrrc he asw m, turd Dcla-
b*Tt Cotton* and Mr, CfcW
) my lord DtInmen*toM hmi he
had reortved a mmmge lately by one S^am^
ioi;^H
4873
1 JAMES II.
Trial fif Hear i^ Lord Belamere^
[388
that vrasiKnt from the duko of Monmouth,
whereby he understood that the duke would
speedily be in Kn<^land, and that they lunst
provide men and arms to assist hini when lie
came ; that he was a man recommende<l to
them by my lord Brandon, and that upon liis
y recommendation they had thoug^ht fit to in-
trust him in the matter, and wiihal told him,
tbev were to raise 40,000/. and 10,000 men
in tliat county : He tells you likewise, these
gentlemen gave him eleven guineas and 6/. in
silver to go of an errand for them to the duke
ef Monmouth, which he undertook to do, and
hired a horse to that purpose.
This, my lords, is the positive proof, and
tliis, I must acknowledge, standing single and
by itself, will niuke but one witness ; but whe-
ther the circumsiances that have been offered
to vour lordships by the other witnesses be
■ucb violent circumstances as necessarily tend
to fortify and supfHtrt that positive evidence,
imd so will supply the defect of a second wit-
ness, is the next question that I come to con-
sider, and I shall take them into consideration
in the same order that the evidence was de-
livered.
The first step, my lords, that was made as
to any evidence that toucheth this noble lord
at the bar, wab what was testified by my lord
Grey ; for as to the otlier part of the evidence
that related to the conspiracy in general, I
need not trouble your lordships with the repe-
tition of it, (that there was such an one, is
notoriously known) but J say that part of the
evidence in his history of the conspiracy,
which my lord Grey brought home to my lord
Delamere, was this :
That upon the first meetings and consnlta-
rions, it was resolved upon, that the duke of
Monmouth should ^o into Cheshire to make
an interest there ; and among the persons Uiat
he was directed to go to, and to apply for ad-
vice there as persons fit to be trusted, this no-
ble lord was one.
That upon the duke of Monmouth's return
out of Cheshire, he did give his confederates
here in town nu account, now well he had been
rrceived, and that he liked all things very well
there. This, my lords, is the first circum-
stance that has been offered to you, to shew
England upon a message, to inform the lords and
others of his party, among whom my lord l>ela-
mere was one, that he would have them betake
themselves into their several countries, aud
nut stay to be taken or clap|ied up here,
liir that, he did understand, was the design :
and Uiis message was dehvered in writing ;
(now that the duke of Monmouth did write a
note, and give it to Jones is verified by my
lonl Grey's testimony too) and this sealed up
and he was not to open it till he came to sea ;
and when he did open it, he found it contained
a signification of the place where he was to land,
,and where he waste rendezvous, wbicb was
Taunton, and who wtre the persons that were
to have notice of it, among whose names ws
find my lord Delamere is to be one : but be
likewise tells you, he was not the man that was
to carry the message to the»e persons, but bs
was to deliver it to Matthews or Wildniaii, and
they were to transmit it tb the oilier ptTSun.
lie tells you likewise that wheu be came to
town which was the 27th of May, he met
neither with Matthews nor major XVildoiau ;
whereujjoii being at a loss what he should do
with his message for want of those other
persons, he acquaintt^l Disney, that was exe-
cuted, with his errand, who promised to lake
care that it should be delivered.
This, my lords, is all Jones's evidence ; lor
Jones does not say that he himself acquainted
or that Disney did acquaint vky lord Ddamers
with the message.
But here, my lords, is the main circum-
stance that renders the matter suspicious;
that very night that Jones came to town, and
Disney being acquain.ed with the message^
had undertaken to get it delivered, does my
lord Delamere at ten of the clock at night
go out of town, ill the company of two frieiuli,
under the disguise of the name of Drown, and
a bye-road, and so goes down to his own house
in Cheshire ; this, I say, is the circnnistancs
that renders the thing suspicious.
Now, my loi*ds, if we do prove by such suffi*
cicnt evidence, as may make the matter mani-
fest to you, that my lonl Delamere had uoCws
of Jones's message, (for upon that point the
case will turn, whether he had notice wfac«
tlif.r such a mcssa;^c was broujgrht, that such
that l;e had a confidence in my lord Delamere, j tliiogs were in agitation, such preparations
as a principLil support of his designs at that ! made, and that they were all to go into thi
very tune.
The ncrjit t!iing that we offer, is this mes-
sage of .Junes 'b-, und, for that, our evidence has
fully and (ilaiiily inudf it out to your lordships,
that Jo.'K 6 did go over iiUo llolland, and his
hu:*iiit'ii.s lIk re \tus an erruud from Disney and
niojor \V:iu;n:in, \aA t!ie couicderates here.
country) then I say, his going down is a
violent presumption he had an intent to com-
ply witii the nie-isuge, and join in the design.
But now, luy lords, conies the question, the
main question, how is it made out that he bad
notice Jones brought such a message ?
Jones indeed, my lords, does not say tliat bo
The lilrot cf his intbhage vtds, that it was I himself imparted it to hiiu, or that Disney
their opiiilxJi, that Hk; iluke of Monmouth
shotud go r<>r ^^cmkUiuI and join with my lord
-Argyh' ; L.'.i ;i{.i;n the receipt of the message
he U icg r.ii^'ry, suill, it was too late for such
a mcijsuge imw, and he uould come into Eng-
land, for he was ready to sail : aud thei'cupon
ha did send this same Jones back again mto
9
him he had communicated it ; but 1 'think
there is another witness, and that is Slonrv,
who sailh, that Brand, one that knew of tfis
message, did acquaint him, that my lord bad
received it at the coffee- house, and' that uigbl
went out of town.
It is true, my lords, this is but a licftr-ngr^
Jnr High Treason,
but tfattt wtiirh followpH bdn^ tiintter of fsct,
For 11 i^oattt giveti
fn .liul loi^Uf it ixn kind
^J" i M>n, timt lip WD** ac-
■Aaj lUc i)H;^«a;r<^t p^ii't ot' wliicli was
BBbt < ^'<* out ot iu«^ n , nm! if sd, it cuti
Tli*c nil nthfi- coii»tmnti<nK witti ^uhmissmn,
than to be in pursimoe*? of, and coniplvin^
witl», the (lire i ' ' a j^t brought
liitti troui Ibc-
My lor«is, i»» i unv hij> .t miu- imthrr, iberc
were two uitnc^scfi^ [irotliiml ihut went out of
towTf " ♦'» ) •'" Miey si^ein itul^ed untvitlingly
to L > *(ri but I i*»li&ll faithfully re-
pern .y they gate: Their uames
wen? V aiujc iind Ediin.
Vaux^ he 9i;iith, he met oty lord flcUmere
M lh« fliifmticr-tJiv^Pni iii Uueen-strert the
Wth day of May, which was the day before
loi)«^ came tn toWn,iind thai then he app«>ititi?d
t«y ifo out of town the next d.iy, which was the
t?lh ; and mnrordiiij^ly lie did efo.
Edlin, Uesnith he met Vnux^at the Custom-
boil I >1h! 27th of Mhj in the inorulog^f
arvl red by him to |4;t* wtlh hifn mil of
Untt}, iir iiiii ^i>, aiitJ there was with littii ai^en-
Iknuin iUiO!»e unme was Brown^ and who now
ap fleam to be n»y lord Delamere ; they went
in trotimany with hirn as faraB Ifitrhio, where
Uiey Imhilri upon Thtii-^day the 2Btli at noon,
Thrs evidence i^ prodmxd la sli^w, that my
lord did i^oout of town at that time, and iutlint
manner as has been alledged, and that these
{icTSons went %v}ih titttt to conduct him to a
private way, ih»t he should not ^o the com*
inon road. Yonr lordtihipif tvill r«io%ider what
I an»wer hath b*rn jjiven to this, and what ac-
iHYunt niv lord Dilaniere has ^-ivcn of himseif.
A, ■,'.'• ■'.:
my ioi
rd«.
T 'rs this
it h.
tn> • '
1 prove that, w
!< the
nar
. .i:
y lord
i4i.MHe|f by»
ry ujscto call
jcv; and to
3*_ed two wit-
tifM.
a their consnlta-
iiy lord Drlaniere,
under the name uf Brown; andoaceal a ta-
vern^ when my loril Jlehimere 'wd^ nuineil by
onem the niiiijjaiiy, lie wa* jtresently catchcil
U|i lot ii» nndrephJd to, you mran >lr. Bruvvn ;
uttii an it *et:n\B that V¥u% tlie milling n^stte
titi*\ifit winch tliey dist-iMirbiMl of luy lord
Ilelamen».
7 lie otlier witness Pauncelbinl, he tc.'li you,
thTit ' - - ^^■'- ^- •--< ■ .!
Wi!
mi''
J)^
ot '
lf<^ rhouKh
[CM I M, SOIU4!
ArD. 1686- 19S9
jH yon hate had no account (Brireii yoa, thtc
there wa* any other Brown in Ch^ <iiWi.\
It is true, indeed « my lords. arv
only things that 1>i!»ney said, nti aid ;
hut*l musiiiake leate to say, it is ^ cry suspi-
cious, ttiat if my bird went out of town iotci
Cheaitire under the name of Brown, tnd ^oine
persons shall, on the behalf of lirown, come
for declarations to l>e sent into Che&hire^ and
my lord commonly in that puny ^o by the
name of Brown, thai those declarations were
for my loni, and that will he a gfrf at evidence
of hia corresnondence with I^lonmoiJih.
Bnt I confess, my lord!*, all iliia while ouP
proof is circnmstanttal, and indeed there i« ni>
pohilive proof but that of Saxon, an<l in hiirk
our proof mnait center ; for u ithout him, 1 muxt
acknowledge, uothint; that has been offereti
will tui proof ajjraittst my lord upon this indict-
ment ; tor hare circumsUnces, and hare suspi-
cions will he uo proof a^^ainst any man, but
hiicU as are violent and necessary , and those
joined to a positive proof, such as tlic law re-
quires.
Now, then, my lonis, I come to the ooosi*
deration, of what vr^tght and stress is to he laid
upon lhL% positive evidence ofSajcon ; and her«
I must confers there are objections made to
this testimony, to which I cannot readily j^tvc:
sn answer ; for Saxon has sworn, thut he waa
there atstich a time, and lluit be wan ^ei-t ihtp
and enlfrtained as a |»er?.on re«x'5^»Jiu ■,.:*(! hy
my lord Brandon, as tit to he cni i th# •
secret, and capable of licin^CTUi itir
up the country, io onlerto tlie prosecution of •
deslsrn they had on foot to raise a rebellion ;, i
and he does chartre ^ir Robert Cotton and Mr.r
C*rcw Ofiley to m\c been there at the ttame
time.
The evidence, my lonk, ihal has l>eeii pro-
duced to fuKify this positive witness, io th*
point of sir Bobert Coiton^s being there, ban
neen by live or six witnesseg^ who testify sif
Itobert Cotton's beini; tn town, and not elue-
where, frofn the 10th of April to the latter end
of July ; imd I do n^t see what we have to ua^^
in answer to therr ic^tiinony. I must u^rte
the proof to be loll iti thiit point ; and if the
evidence they give be true, I cannot say that
iSaJcou's evidence can he true in thnt point.
Likewise i\% to ^Ir. Otiley, air VVilloughby
Aston and others! hare testihed that he was nut
at my lord Delamere'n Dt the time baxoa
Kpeak-M of : For he t^ives you an acciMint whero
he was every day Irom the '2i>\h of May to th#
'Bh of June; aud his own Mriaul^ hiing^ him*
in his own house upon the 4th of June m th« <
■ anoUier way Ihaa*
Ml*** lo my lord l>e«
'" -'" ' i, ..M^*...^>,.., ^'-^--^ ^-bit««uo«-'
I be true, I nui t.
vitiiiiln J iliiir rA oil my
If in
Mere; fit > cuw to I
a little tntiii .1 my lor4'
ahoulU make no lua^U ha^ta dowM; 4M tu go ttnt
evenmg-, ^^
Iroin 8ir \\
991]
1 JAMES U.
Trial of Henry Lord Delamertf
[59ff
kte at night, and so cautiously, as to go by a
wrong name, ami yet to ride to town again the
post -way, to be here just the third or June,
when Saxou swears he was in Cheshire.
I must confess there is the proof of his two
brothers, that say, they saw him in town the
third and fourth of June: There is likewise
■ome account givtn of his going nut of town,
that it was npon a message received from his
mother, thst his child in the country was sick ;
atad indeed he did go a bye- way, and change
his name foi fear or a warrant in a messenger's
hands that was out against him to apprehend
him.
Now, my lords, I do not hear any thing that
has been oflered, that there was any such war-
rant, or any discourse to ground that apprehen-
sion upon : My lord had the first and only ap-
prehension of a warrant ; hut upon what rea-
sons he himself best knows : This apprehen-
sion maile him go out of town so privately, lie
■ays, because he would not be prevented of
teeing his sick child.
But how comes it to pass, that my lord
makes such a speedy retnm ? By the proofs,
it ap|iears he did not get there till Siunlay
jiight, and upon the Tuesday morning comes
post for London.
The account that he gives of that, is this,
his.haste was to see another child that was
here sick in town : For he bad received an
express from his wife upon the Monday, to ac-
quaint him, that the coast was clear, and there
was no warrant out agamst him ; but if he in-
tended to see his cliiki alive, he must make
haste up to town ; snd accordingly, upon the
Tuesday morning early, he sets out, and u|>on
Wednesday in the evenmg is hero in town again
L. H. Steward, You do not eall wnj mom
witnesses then, I perceive.
Sol, Gen, No, my kird.
X. H. Steward, My k>rds, it has not been
usual of late, for those who have sat in tbs
place where I now am, upon those occasions
to give your lordships any trouble in repeating
or observing upon the evidence- In this c&se
the evidence that hath been given has been
very long, and it wouki be too great a presump-
tion in me, should I have any manner of doubt
in the least, that either your lordships hare not
well observed it, or the learned counsel lor the
king have been defective in collecting or re-
marking upon it, so as to need my assistance.
But, my lords, 1 confieas there is something
I cannot omit takinir notice of, not for your
lordships snkcs, but for the sake of this nume-
rous and great autiitory, that one mistake in
point of law might not go unrectitied, wbirb
seemed to lie urged with some earnestness by
the noble loni at the bar, That there is a ne-
cessity in point of law, that tliere shoold be
two positive witnesses to convict a man of
treason.
He seemed to lay a great stress upon that;
but certainly his lordship is under a great mis-
take as to the law, in that point ; for without
all doubt, what was urged in answer to this ob-
jectiou by that learnni gentleman that ooo<
eluded for the king, is true, there may ba sncb
other substantial circumstances joine<l to one
positive testimony, that, by the opinion of all
the judges of England, sevenl times has
been adjudged and held to be a sufficient proof.
As for the pur|M)se, in this caae^ snpposs
your lordships, upon the evidence thst has been
given here this day, should believe Saxos
But, with submission, my lords, there is no j swear; true, who is a [lositive wimess, andshall
good account given by this noble lord, what ; then likewise believe that there was that cir^
reason there was for so many |M»st-journies stance of Jones's coming over fnim Hdland
backward and forward, as, has been testiHed,
he made within a very little compnss of time ;
for l>CKides this of his rc^turn post upon the
second of June, there is only an answer ufiven
to one of the rest, which is that of the fifth of
May, when he saith he went to take [KMsession
of tl»e land that he held by a K*u<>c then re-
newed to htm by the hishop, which l>eing of
some value and consideration to his lordship,
and the hishop beint; sick, he thou;;ht it neces-
sary to go down post himself, and would not
be content to receive li\ery hy uttornment.
This is the only answer that is gi%en to ail those
times of his riding [>ost that have been given in
evidence.
These are matters of suspicion that an* of-
fered to your lorilsliips ; hut 1 confess, mat-
ters of suspicion only, unii'ss clear, positive,
probuble pnwf be junu*d with ihem, will not
weigh with your lordships to convict u man of
high- treason, where two wituchses are re-
quiretl. But whetlier these matters of sus-
picion \\e such violent and necessary presump-
tions as tend to fortify the {Misitivc testimony, I
must leave that to tiis coDuderatioo of your
innktiipt.
with such a message u|>ou the S7th of May
(which is directly sworn in evidence, you art
thejudj^es of that evidence^, and whstuieotbcr
witnesses have sworn likewise, and is not
denied by my lord, the prisoner at tlie bar, that
he went out of town that night, clianged hit
name, and went in an indirect bye-road ; ecr*
tainly these circumstances, if your lordsbipa
be satisfied he went for that purpose, do ne-
cessarily knit the |M>sitive testinu>ny of 8ssoii»
and amount t<» a second witness.
That is, if Saxon's positive testimony bt
true; then suppose all these circumstsncm
that gave the jealousy, do make up a strong
piesumption to join with the positive evideoci
of Saxon ; then you have two witneust, al
the law requires, es|}ecially , if the answer gives
by ttio prisoner to those circumstances be not
snfficitMit (as the slender a.^conut he givea of
his so trecpieni journies in so short a oompsM
of time), hut that ihere still remains somesos*
picion. I could have wished, indeed, thft
matter mitrht have l>een made somewhatt mora
clear, that no shadow of suspidott nnghl ffi^
main.
Your lordships Bjre judges : And if jo% d»
£SS9
Jir High Treasm^
Iii' U^tiraony ffi" Saxon, whose
ti - ^ a srt I tmi li vi'\y c o» i ittui i ct w I
by *li¥*r» v4iiiM'jii*es of qiixilit^v, tlic prisoner
oui^fit to [>c nvfimiXQd of llits iruricUaciiL If
yoitr lonhhips ;»)tmle, yoti iiia^ go to^'ibcr,
and coruiifer of iL
X/Wi. Ay, withdraw, witlidraw.
Then the pwrs withdraw in their order^ a<?-
cording tr> iheir nreredencyf if lib the Scrjcuiit
St Arm^ UHtbri? tlreni.
L. H, ^teayard. Lieulenaot of the Tower,
take youf ^i i^uncr from l1i« btr.
Tlie Prinoner was rak^n into the little room
appoinied for him at the^ entrmce into the
<rourL
The (lecrs stuid out about half an hour^ and
(hen rctanied hi tht* sHine order that they ^^eiit
dui in, uid sealed Uietnsdve^i ia ihdr p)ace» as
btfforr,
CL C t at Arms, take the ap-
peamt^' Lii*i reiire, i^nrl of Rt>*
chestci, j.-iMu iji^ii i rt^a^^urci" of Knj^lund,
Jlr !itood up uucovcrfdt and an^rcred,
Lftrd Trcfiturer, Hi- re*
And Midirl all the rest.
L, H. SUward. My fords, are yoa agreed
of your terdicl ?
hordi. Ve».
Tlie Lnril il^h Steward took their Terdict
icrialtm^ f>ej^inniog vi^itli tlie puisne pet:r, in
this maoner.
L. U. Suward. How^ way yoM, my Jord
ChunHnll i» H<*ni'y, barun of Dcldn>erp, tr«ihy
of the Hiu'h 'Treason uhireof he jftands indict-
ed, and lioth Ihi'O arraii^ntHt, or Not G^iilty f
Thf lord CfiorohiU Mt*od up uiuH)Vfred, nod
Jay in;; bit* hand on hi* broast»!insvi*tTf d,
' Lord ChurchiU. Not Guilty, upou my ho-
UQtir.
* And fo did the rest of the Peers.*
♦ " Lord Delaraere was tried ycsk^rdiiy
tiid i|urttett by his peers: ho liad ifuod fuck,
Ju well as jnbt jtMbfes^ tltai the onty (lo^livc
^Htfc^ which catne in a^inst him, was
liroven \d fiuvc sworn falisety ; lor thouj;h llw?
rest of the efidence ^^aituit l;iin \\A>i only
licar-!*ayH, yet all the world uhh ?;:itisfiL'd be
did deniif^n to have ri«cn with Lord ^lat-kk-fj-
field and Loni Brandoo/' Lrttcr from King
James Uie Second Xq the Prince of Omtitrc*,
'January 15tii, !68d. Appendix to Dairy mple^s
BfehDoirs^ part L p» lt>(3*
Tbf* Jbllawiug^ Record rettting to SaxDu^s
Caj»e» u If itm by TrraiAiu ;
HftX 9. Saxqti.
HTIL 1 cyr Jaeobi 8ecotidi, Hot 5.
H, tnlorinnn Clood pi^r quahilarn inquisition^
A. D. 1686. [fi
X. fJ. Steward* Li cut am nl of tbii Towcfi
bring" your prisoner to the bur.
The Prisoner was brought ajfujn to the bar.
*' Ii. H, Sitward. My lord Delamere, I am t©.l
actpiaial you.^ that my noble !orl¥, )Our peerstl
Dom' Regis ad Legem ac Just fc* Ccstr* JowJ
hanno WaVre Ar* alrcr(» Juntju* Cc>»tr* Pbi-I
lippo Ej^-erton Mil* et Pctro Slmkerley Ar' p«r. 1
blerns Falcn* ejuudnn bonani Itcei^eis ct uUii'i
tt ipjdiM^ruuq; tril>' vel pbir* e<ir* luile roufeei*!
ad inrpiirend' prr Siicr'um p'bov* et lej^^alium]
hi>ntiii^ df Com* Ccstr' «c al* lii*? in<^diis cH
tnodis cjuib' melius soivissent aut (>r)tMisii4^r1tJ
tarn iulra liWiial^ quam extra jier ipios iisli
Veritas mebn's sciri pntui^sf^t rt iuqutr^ de qui« 1
buscutiqite prodi<iouib^ miypri^iond/ prodiiioti*'!
insurrvoti^on^ rcMbon* oootrofactur' tonsut'j
lotui' fttlsis fabncttiionib* el aP fuUitai^ monc^ j
hojus Reo^ni Aogf et al' Rcg^jor* sire DoniL-|
iiior' fiuoruiitcMoque :«c dc quiboscunque Mur- J
dns ivton* Uouiidd' interfcction* Burglar'i
rapiib' Bhi'ier' eongrei^ation* et conTeniii.'uP|
JIhrit' trrbnr' prolaliouib' -• '>'^"" ^'jonib' mrg*!
prisiouib' conUikTatiiiiiTb' l jnc' trans* [
Ifr* ri Otis rout is rctentionib - ..^ .:i contempt']
iatiiiial* negli^i^enc' coucelament^ manuteneti*']
o|>pn'Siionib* cnmbipurciis deceptionib* et aPj
maltf^clis offeiis' ct injur' quibuscunque neo«i
non iicc«s«ar* eorundvm inira Com* Ccfitf*!
pred' tarn intra liberiat* quam extra |>er. quo«^(
conqtie et qualiitTCunque habit' fact* conv»]
miss* sive p^pctrat per qnos vel per queq
cui rcl qnib* qunndo qnutiC et qoomodo
de abis Ariiculis et Circnmslanc* p^misa*"
aut tor* quoilllLict iicn eor* aliquid vel nliqiiik]
qualiicrcimq; concrracn* pleniiHj reritai' illd
«d easdiUi pMittiin' et ai* pr<»mias* audrnd'rj
et terminamr st cundnm lejfcin ct eons' Jlegq"
dicti Domini Ilft^is nuuc AtigP Assign' p«
SarVum 12 cUir' probor* r*t legaUum hotnia
Com* C<Mr' pM* tui»c et il>idem Jurat* et on^l
rat* ad inquircnTp pro dido Domino Wige «t|
Corporc i>mv C»sU* p'd' cxisrtt prescntJit'j
QmikI Hennrtts Uaro de Delamere in Coru'l
Ce&tr* itt fabu^ p*ditor contra illustri^simmiil
ct cxceheutissimum principem Dommum Ja,«^|
eobum 8ecutsdMiii Dti Gra' AnjjP Hcolie Franc*!
et Hibernic Uin;r<?m fidei DeliuJior' nntoraleM
f- ' ^em Dei ill Cut ' ;i i
" uno* Ruani pon I ,
i\\\i*\*Xxo\\ et vt r:mi deb»i' et uator
t'nc' qua» Tcrus <'t fider sukbt' «' i]
Rc^^is trj;u ip^iim Dominum ' t j
et ite J wre }j;;erere teiieluitur pern ^ J
ct machinons pmcticans et totjs m
teudeu9 piicem et commuuein tr ,i*]
\iu\\m Rrj^m A»>i;l* inqntrtaie itiuiv^t.u^
fifituibaiv ct ijmrram ct Rebellion* eontu
dictum Domiiurn 1^ i;;" fu irifiTi litH; Kij;i|*"
AhJi'l' su»c$t'H<* innvrTi^ ft tvpfHionint' 1*1 LTiilu'r*^
n* d.cii Domivii " '" t*"
' rlen? in n tare c
sa
595]
1 JAMES II.
Trial of Henry Lord Delanure,
[596
havini; contidered of llie e?i(]ence that liath
heeu ji^iTeu, both a((ainst you and for you, at'tcr
they Here withdrawn, have returned, aj|d
a*;reed on their verdict, and by thai verdict
tern it fii.ar destruction* adduceie et uonere
14 die April' Anno Roy^ni dicti Domini Jacobi
Secunili nunc He^is Angl* &c. Primo ac di-
vers' al* dieb* et vicib* tain antea quam wwtea
apud Mere in Com' Cestr' pM' falso inalitiosc
diabolice et pnutitorie ciiiii divert' at' talsis pro-
dilorib' et llelielhl)' Jur' pred' ii;nf»t' conspira-
vibM't crompassaviscot et imatriuut' fuisset et
intendebat dictum Dominum Kegeni supreinu'
veriim t-t naturalem Doininuni sou' non solum
de lie;>ali Statu titulo potestai' et rei^imine
lirs^ni sui An**!* depri\arc et dejit'eie vcrum
etiam eundein Dominum Ke|(eni interticere et
ad mortem athlucere et ponere et antiqiiam
gfiiberuati(»n' hnjus Ke^ii Angl' mutarealtcrarc
et peniius snbvertere ct strugem misembilem
int' subdit' dicti Domini Reips per totum lU^u'
Anu^r causare et procurare et Insurrection' et
Rebellion' rontra dictum Dominum Re^em infra
hoc Rei2:n' An«^l'procurare et auxiliari et ad eas-
dem nefandissimas nequissimasetdiabolicas pro-
dition' et p'ditor' rompassation' imagination' et
propo^ita sua p'd' p'implend' pTiciend' et ad
efFcctum redig^end' idem H. Baro de D. ut
falsus proditor adtunc et ibidem sciPt dicto t4
die April' Anno 1 suprad' et divers' al' dieb' et
vicib' tarn antea quam postea apud Mere pred'
in Com' pre«l' falso illicite nequissime et p'ditor'
cum Carido Gerard Ar' et al' falsis proditor'
Jur' pred' Ignot' se assemblabat congrei^bat
consultabat et ap^reabat ad suscitand' et p'cu-
rand' divfrs' roagu' denar' sum' et influent'
nniiicru' homin' Arniator' ad ^uorram et Re-
bellion' contra dictum Dominum Regem infra
hoc Resell' Aujirl' levand' et faciend' ac Civil'
Cestr' in Com' ejusdem Civil' necnon Cavtrum
dicti Dom' Regis Cestr' ap\id Crsti' iu Com'
Ostr' pred' el'omnes munitiou" beilicas An-
plicc Vocal' the mut^uzihts in eodem Castro
adtunc existeu' intrure capere sci're ct prendere
^glice to sui prist' et in possession' et potc*tat'
suas^obtinere Ac Jur' pred' uherius snprr Sa-
rr'um siuim pied' tunc dixfr' quinl prtd' II.
hnvo «le Dt'lainere |M>st<>a scil't 27 <lie 3Iaii
Anni) >. supuid' fnlso illicite nequissime et
pMitorie iter fecisset a Ci*il' London' vjsq; ad
Merc; pred* in C«un' Cestr' pred' ad proditoriu
propii^itu sua pred' p'implcnti' ct p^ticicnd' ac
quod idnn If. Haro de Dclamere postea scilicet
4 die Juiiii Anncr t suprad' apud M. jired' in
Com' Cestr' pred* in ulterior' prosccu'.ion' p'd'
illicit' n<'piissinior* ct pMitor' propositor' suor'
divers' li^i'tMts ct subilif dicti Domiui Regis
(,hu' pr*d' Itfnol') cum cMxiem 11. Bnron' de
D. ct jucnT al' falsis proditorib' (Jur' prwl'
lt>'not') tidso illicite nequissime ct pnnlitorie in
guerra el Kcbflliou' prid' et iu pruditoriis pit)-
posif suis |>re(rjung«>reetadlitrcie excita^isscl
aniinavisset et |»ersuusisset contra ligeuncie
sue debit' contra |)acem dicti Domini Regis
nunc Coron' et Dignitat' suas necnon contra
i«ritt3ui :Sitttuti in bujusmodi casu edit' et
have unanimously declared, that yon are Not
Uuilty of the High -Treason, whereof you bars
been indicted, ami this day arraigned, and
therefore I must dischar,;^ you of it.
p'vis' Et ulteriua idem Attorn' dicti Domini
R- gis nunc ^neral' pro eodem Dom' Rege
dat Cur' liic mtelligi & informari qnod postea
s<:ilicet 14 die Mensis J[anuar' Anuo Re^^^ichci'
Domini Re«;is nimc primo suprad'^Geoigius
Doniinus Joifcfvos Raro de ^Veoi^Dominus
Cancel i* Angl' e:i Vice Neneschallus Angk' vir-
tute literar' dicti Dcmiiui Regis Paten' legi-
timo modo fact' & pretat' (icorgio Dom' Jef-
feryes Banm' de W. tunc Domino Can' Angl'
direct' Indictament' pred' coram eo apud
Wesim' in Com' Mitld' in Magna Aula placi-
tor' ibidem die Jovis 14 die Janiiar' Anno
Hegni dicti Domini Regis nunc 1 tnprad*
venir' fecit terminaud', £c. Et quod Ppatea
scilicet dicto die Jovis 14 Janliar' Anno Kegni
dicti D«>mini Regis nunc primo suprad' apud
AVestni' in Com' Midd' in Magna Aula placi-
tor' ibidem coram jtrefat' Georgio Dom' Jef-
feryes Baron' de W. Domino' Cancellar' Angl'
tunc Seneschal lo Angl' ven' p'd' H. Baro da
Delamere sub Custod' Thome Cheek Ar' tans
locumtencn' Turris dicti Douihii Regia Lon-
don' virtute brevis Domini Resis de Habcn
Corpus ad subjiciend' ci inde direct' ad bait'
ibidem duct' in propr' persona sua Et statim de
premiss' sibi superius miposit'allucul'qua1it*ia
velit inde acouietari tunc di^^it quod ipse in
nuUo fuit inde Cul' & inde de bono & malo
tunc posuit se su[>er Pares in qua quidcm
causa talit' p'cess' fuit quod exit' pred' lia
ut preiertur jnnct' postea scilicet dicto die
Jovis 14 die Januar' Anno Rcgni dicti Do-
mini Regis nunc primo suprad' apod
Westm' p'd' in dicto Com' Midd' in Ma^
Aula placitor' ibidem coram p'fat* G. Domino
Jeifercys Ihirnn' de Wem Domino CanceU*
Angl' et ea Vice tunc Sencschallo Angl' per
pares debito modo trial' fuit super quam qui-
dem triation' exit' pred' Mit' partes pred' sic at
prcfertur Junct' quidam Thomas 2!iaxon nuper
de Westm' in Com' Midd' Yeoman pro«luGt* raiC
testis in Causa pred' ex parte dicti Doni'.Regisd
adtunc et ibidem Jural' fuit sup' sacrosanctu Dei
Evangel' ad veritat' tot' veritat' et nihil preter
veritat' de et in premiss' pred' dicend* Et lie
Jurat' existen' idem Thomas Saxon Detim pre
oculissuis non habeus sed instigatiooe diabolica
mot' ct seduct' et leges liujus Regni AngP
par«i pendens nee {M'uas in cisdeni contenlT
aliqualit' verens dicto die Jovis 14 die Januar'
Anno Begni dicti .Domini Regis nunc primi
suprad' coram prcfai' G. Dom' Jeffreys naroa'
de Wem Domino CanceU' Angl' et ea Vice
tunc Scneschailo Angl' apud Westm' pred' in
dicto Cum' Midd' fnlso vuluutkrie et cormjila
per actum et consensuin suu' pronr*. et ax
animo sno nequissimo super Sacr'iOD auu'
pred* dixit deposuit juravit et |>arih' prefat' ll.
de Delamere adtunc et ibidem debito mudo
elect' ad triand' exit' pred' int' dictnm DoaU
nnm Ucgem et prelat' D. Baron' da F
for High Treoitm*
L, Delamere. May it p\et%e yaxn lyrace, 1
■Kail pniy to Almiy^lily Cm], that lie w\i\ |>kasc
ti> give nie a Uart U* he thankrul lo hiai lor
hh niercvi and my lortls tor ihei^ jiislicf ; ami
tnoilu el fiirma prrfi* jnnct' ifi evrdeucc' lU flit
' duod IP initio junii lunc nlC ipse idem Tbo.
SaX(»n atTtfriiitusi iV\t' MiQi'ice trtis sent for m\
Mere (flom^ p;Hii«ionar prfii^K Baixm-deDe-
Ifttnere njnid Merc in Com' Ce^tr' sitiiat' in-
micmlo) uM quan(l<i ipse idenn T. Saxon »r*
f^easii c'oiidticuis futtlti llomeam jnferiaretii iilii
I^aniimis iJeleHiLTe (prcliit* H. fiamri* de D,
ifitiupodu) Hobcrlus Cotton Mil* et Bar* (rjiien*
dam H, Cotlon de Coml>ermere in Com' Cewlr'
|iped* Mil' et Bar* inuueodo) et Ma-^ister Of-
ficy {cjuendam Jolmnnem Crew Offleyde Crew
in Cnm* Cestr* |»red* Ar- innftt^ndo) prcsen*
faer* d pred' Thomas 8axon tutjc 1 1 itnd ad et
Ptipf^r triation* jired* lutermgnC cxisteii* p* pre-
fkV CoorifiU^ IJom ilium jefftiryes Baton* de
Weni DonHnnmCanrell' AngP i-l tunc ea Vice
ScnescliaHo Aoi^l' quo tempore in nieusp Junii
Juii <|uiindo ipse idem T. Haxon fuit npnd Blere
ppvd* ipsepi-ed* T. Saxon tunc et ibidem scilicet
cicto dtp Jovis 14 die Januar* Anno, &c. priino
•Upradict* apud Westm'' pred' in Com' Midd'
pred* faUo voluntarie et corrupte dixit deposnit
juravit respnndit et snper SatT^um tun' p'd' in
evideoc* parib* nretat* H. Baron* de D, nlterius
rn evidcnc* rfedit quod ijise idem T. Saxon ad
diem iiarrare non poiuit quia ill* in Scripiis iinn
posuit f An*^l^r did vnt Kfi it down) sed crede-
imt quod fuit 3 \e\ 4 die Junii Et idem Attorn'
dicti Domini Reikis nunc gpneraP iilterius dnt
Cur' liic inlelii^ et inlbrmari Quml pred' T*
8axoo tunc et ibidem uuper triation* pred' falso
jnjnslc ncqn.it* et otirruptive dixit depijsuit ju-
Tovit et Ktiper Sarr^'um sua* pred* p'd' pjriijus
jirefal' H. Boron* de 1> in evidenc' dedit Qiwd
pred' H, Barn de D, H. Cotton MiP et B^rr*
rX J. Crew Offley Ar* inttrrog^abanl scipfium
T. tSaxon utrum ip^e idem T, 8. suHciperet |K>r-
Care missum Ang^Iice « ii/cjt^/^e ab ipsis pre-
fkV IL Baron' de D, ILV. mV et Bar* et J,
CO. Ar*Duci Monmoutb (Jacobonuper Duci
Monmotith de alta proditione puper atiinct*
ifrnuendo) qimd ipse iiiem T. Saxon facer' sttn-
eipiebat et ibidem recepit uudecim pec' Auri
Guinnen' Anglicc Guirtiy Piect$ of €vld et
miinq? libr' Argttit' p* itinere sno'(iler* p'd*
T. S. ad p*d' Ducem Monraoutli innuendo) et
QQod i|ifle idem T. H. tunc ptstea ei[unm eon-
auxtl Ani^iice hired a korit et deliberat it nitg-
sum Ani^c« the Metuige Duci Monmoutli
(prelat' nuper Ducem W. innuenilo) Et quod
p^d* T S. tunc ct ibitlem sup* triation* pred'
wterro^t' existcu* p' prefai' G. Dommum
Jefrereyi Barun* de VV. Dom' Cancetl* An^rct
tunc Sen eschalliun Ang-P a quo ipeseprefat' T.S.
pred' Monet' re^|ait ipse pred* T, S. tunc et
ibidem fel8*r maliiiose loluniarie et corrnpte
dixit depo<tnit juraifit respondil el sup* eacr'uitj
•uu' parib' p'fal' H, BaroD* de D, in evidence'
ulteriu<« detiit quod ipse idem T. S. recepit de-
•ar' pred* a Domino Delamere (ptetat* H. Ba-
ton* 4« D, iimueodo) ubi ref en «t io facto io
A.D. 1685.
[59»
T prny Hod deliver their lordship^!, and all bo-
ne^i ineiiT from wicked and maliclouf^^ I^in
iinil iaUe lefitiuiony ; ] pray Cod Ijless bis mN
jesty, aod long' may lie reign.
' — — • '■• i-~
inirio Junii time uU* preterit' p'd' T. 8, t»on i
cersit* lint »d Mere Et iibi revera el in lacw
pred' T. H. mm cnudirriUH fuit in Houicam in
tf-riorem opiid MtTff El ubi revera et in fat-to
pred* Dominiif! Debn»ere 11. C Mil' et Buret
Magistr' OfHey ibjdt*m non fn^r' prt^eo* Et
ubi revera e* in faclo pred' Dom' Di^lnm* re R,
C. Mil* et B;ir' et Mapisfr'ClflSey tinninterrft
j^alwini prefet' T. S. iitrum ipwe* pretai* T. T
RtT&ci|H*ret portsire mts'tum ab ipsts 0»»«S
Munntoutb Et ubi revera et in facio prei
T. S. non Muscipiebat il* fucere Et ubt'
rerera et in iacr«> pfe<r T. 8. nunquum recepit
Ufidecim pec' Auri Ouinnen* .^n*;lice YJrren
tf«i*/iffs nee f|uiriq ; Libr* Ardent' pro itinertt
Kuo El iibt re^ini ct in iartu prrd' l\ 8. nuo-
qnam rece|iit denar' pred* a Dm mi no Dehmet«
pront pred* T. S. per I'alsmit et mendiix \vnv\-
mon* suu' pred' talso mntitiose tolnniar'
corrnpte per actum el eon^cen^um suu' p'pH
sup* .sacr^mi sun* i>rei!' ilixit dep^isnit nar^
rar»t et narib' ppefjit' H, Bnrou* de D. in evrf
dene' m\ et sup* tritatimj' pred' deilit El sii
pred' T. N. pred* die JnWs 14 die Janua^
Anno Ri^trni dictJ Doniiui Kei^js ntmc 1 m]^
prad' apud Westiii' pred' in Com' Midd* pre
ct^ram pretut' D. Domino J. Baron* de W*
Domino C«nceir An^r et tunc Heuesc*liallo
Angl* per actum et con»ensnm sun* (I'pi* et ex
animo isuo necpiiBsimo mudo et forma pred'
faUo malitiose vidiintarie ct corrnpte super
sacr'omsnu* pred' commisitvoluntnr' ?i[M)iitau'
et corrupt* perjur' in nKiini* Dei Omnipoten'
displicenc^ m «:ontcnipt* Ic^uni bujn^ rf'^^nl
Afij;l* manifest' in malum et p'niiicisnin exem-'
plum omt^* al' in tali casu dclinqucii* Et contnt
pacem dicti D^'niioi Besris nunc Curon* et
Dig-nitat* suau^ Ax% Und* idem Ait«rn* ilkii
Domini Regis nunc General* pro eoclem Do-
mino Reffe pet' ndvtsament' Cur' tiie in pi*e»
miss* et debit' lejfis procts^s* v ei-sus prelat* T. It
in liac parte Aeii ail re^poudend^ «!ictrj Ooni
W''
Hegi de et in p'miiss', iS;c. Et m'-tlu seiPt die
8abbali p*x* post OcLiib' Sancti if ilia r' isto
eodeni 'IVrmino coram Domino liejje apud
Westm* ven* pretl* T. 8. in propr* p's4.na sua
sub Custod* Willielnd UicbardsoQ gen' cusiwi*
Gaol' Domini Be^sde New^t^ Et hnbitoau •
ditu information* preil' die* ipunl iiise non est
tnde CutpabiP ct de boc ptm' a^ bup* palriam
el R. S Mil* Attorn* Domini Reuis nunc g'e-
neral' qui p* etwlem Domino Mvgv in hac parte
ttequitur similiter, Ace Ideo ven* in^te Jnr*
comm dicto Domino Re^e in Cur* ipsiita Uet^it.
coram tpiio Regfe apud W .-stm* die Luiie prox*
post craslinuni Pur' beate Marie Vir;,hnis p*
quos^ Stc. et qui nec» tkc. a♦^' reLOgti*, ^"tSjj
ijuin t^m, Sec. idem dies dat* e»t Inm pref:
K. S. Mil' qui sequitiir, »!Wc» quum preil* T, ire
Ad queni iiuidem diem Lune pi ox* po9t craa
tinum Pur beate Marie Vinpnis* coram Dq
miuo Reg« apud Westiu* ven^ taui prutat* E. IS
509]
1 JAMES IT. Proceedings agaimt Thomas Eari ofDanhy^ [600'
Z. H. Steward. And I pray God coutiQae to
liiiii liis loyal peers, and all other bis loyal
subjects.
C7. oj'Cr, Serjeant at Arms, moke procla-
luatioiK
Serjeant at Arms. O-ves ! My Lord High
Steward of £iitv-land, bis grace, straigbtly
\t'il!eth and coinmaiideth all manner of persons
here present to dej)urt hence in God's peace.
WiV qui sequitur, <Scc. quain pred' T. S. in
propr' p'sona sua Et vie' retorn* noinina 12
jur' quor' null' Vc. qui nuidem jnr' exact' ven'
8up' quo facta est iiic in Cur' ))ublica p'claniatki
])ro J>ununo llet;e pruut Moris est quod si
atiquissit qui dit-to J)oniino Kegi nunc !>ervien'
]>ouuni iie*/iii ad le^em aut attorn' g^eneral'
ipsius DoiTiini Itvi^'is aut jur' pred' tic infra
content' intbnjKin'. vcUet veniret et audiretur
Ei super hoc T. Joiws Ar' un' de ConciL* dicti
Jjomiui Uvi^h ad hoc faciend' se obtulit sup'
quo proci'ss' est p' Cur' bic ad caption' jar'
})red' p' Jur* pred' inodo coinparcn' qui ad
\eritat''de premiss' prec!' dicend' elect' triat' et
jurat' dicuut sup' sacr'um quod pred' T. 8. est
i-uiirah.l' de premise' iu informatione pred'
incniionat' prout per inforaiatiou' pred' supe-
rius versus eum supponitur sup' quo vis* et p'
Cur' bic intellectis o:nnib' et sin^j^ulis pj-eiiiiss'
cons' est quoil pred' T. S. stabit in et super
J^iliOiiuiii die Sabbati IG die Februar' in Atr'
I'atutii \\ estn^' inter boras deciDiam et duode-
ciuiam ejusdeni diei per spatiu' un' hore cum'
)iapyro sup' caput suu' afFix' mag^is literis
dciiotan' oll'eus' sua' videlicet, ' Tbooias Sasuin
and the kind's ; for bis grace, my Lord Hifcb
Steward ot England, now dtiiiolTei hn €OUi«
minion.
God save the King.
At which ivrmis his grace taking the Wbite-
StafT from the Uslier of the Black- Rod, hekl it
over his own h-jtul, and broke it in two ; there-
by dissolving the Court.
* convicted, u|M>n full evidence, tor horrid per-
' jury' Ac quoil pred' T. S. stabit in et sup'
Pilluriani apud Temple Bar in Fleet-Ktreet die
Lune 15 die Februar' p'd' int' horns duodeci-
roam et secuiulam post meiidiem ejund' diei p'
s|>aciu' p'd' cum papyro p'd' sup' caput suu'
aflixat' Et quod pred' T. 8. Oa^ellabitur p'
communem carniticem a porla Civit' London'
voc' Ludgate usq; ad Aulam Weslm' in Com'
Midd' die Martis 16 die Februar' pred' acquod
pred' T. 8. stabit in et sup' Pillor' apud Coro-
iiill prope Itegal' Excambiuin ibid' die Mereur*
17 die Februar' p'd' int' boras 12 et 9, post
Meridiem p' spaciu' p'd' rum papyr* p'd' sup*
caput suu' attixat' Et quod pred' T. S. flagella-
bitur p' p'd' conimuQcm camificem die Ve-
neris 19 die Februar' p'd' a port' Civit' Lon-
don' vocat' Newgate usq; ad furcas deTybam
in Conk' Midd' p'd' Et quod Vic' London' ct
Midd' erint auxilian' et asaisten' ad aeperal'
locn et tempora ad cxequend' judic' pred' Et
quud pred' T. S. solvat Dommo Regi quin-
gent' Marcas pro Fine suo sup' occasione pred'
imposit' ctquod pred' T. 8. commitlaturCustod'
Gaol' de Newgate quousq; finem pred'aolreiit"
S39. Proceedings in Parliament against Thomas Earl of Danby^
Lord High Treasurer of England, upon an Impeachment of
High Treason, and other High-Crimes and Misdemeanors :
30 CiiAiiLLS II. — 1 James II. 1678 — 1685.
I ITE Papers of Mr. ]\Iontag:i»e, tbe king-s6m-
liissador ill France, beings seized by tlie kind's
order, upon suspicion of bis intriguing witb
tlir Frcncb court, 3Ir. Montague (in bis own
dc-f( nee) acquainted tbe House of Commons, on
the l(3tli of December 1678, that he bad in bis
cuLlndy spheral Pjipei-s ul;irb he coneeivfd
iiii"^bi tfiid very U)ur!i to the safety of bis
majesty's | crson, and the jircservation of his
kint;(l(iin ; \vhrreu[»on two Letters were pro-
du<*''d and read in ilie House, subscribed Dauby :
■which :ire as follow :*
* Of ihf'sc two antfl'^juists Danby washy
Iiinjj \Vilhani created duke of Leeds, and
Moutap^uc wiishy <iue<^n Anne crcaK^d duhe ol
Monta^^nc. Eacli of theni n|i^>('ai-s to have
been disiinf^'.ii bed (that |)i'i-ha|iK is not the pro-
per word) hy ihe laimiroi «.ne of kin;» Charles s
female eor.neaioi:s. Accordini; to Uerekby
(Memoin. IbO) Danby bad au intrigue witii
* 3Iy Lord ; Jan. 17, 1677.
* Yesterday Monsieur Rouvi^y cmme to
* me with Monsieur Bariilon (havin^if g^ven me
* his father's letters tbe day before) and db*
* coursed much upon the confidence his kinp
* hatli of tbe firmness of ours to him, of tbt
^ ^ood opinion bis master batb of ine, amI
'of bis kinf>^'s resolution to condescend to
' any thinj^jr that is not infamous to him, for
' (he satisfaction of onr kin^, bow certainly
' our king* may depend upon all sorts of ss-
' sihtunces and su|>plics from bis msster, ia
the duchess of Portsmouth, wbo seeiiM to
have been a compound of lust and mverieew
and Montague was similarly cifeudtotoneM
with the countess of t»ussex, eldest njputoi
duu;; hter of the kin^ liy the duchess ol CJleve-
laud, whose churacter, if we may believe £teo
and Mrs. Manley, much resemUod that of jM
duchess of Portsmoutb.
601]
fir H^h Trevsi
* ciue ibe frinndshi]! be pr«errcd. — 'tht Difiin
* Qf tlivir ilnfi Wits to fiisn^c tne tu fit«fmil
* ivitli the km;^ la \trtv2il with \hn fxriiice of
B«<HMt^ 1K
* 8(i»rn by the gttieral
fllftUlt^ltlM
risaciiDus imt ot* which
ihiscai^ of J
e, nmch lisjhl is ihronn
Upon l(u«r
.tt^ fjv <!h' ** Ilan»i\'
■kfHfrji/' ti
• Ir'sMr-
Bbirt, the
niid the
■pieces ri
iliiij hia
Bork, Afti
jiit-s/' is
^e folbwittL; 1.) I
VI imni lAMH-Sxli to Chirlcs
, suliciting' t[ie Garter tor Montiigite :
VersuiUci, le 31 Mun, 1672.
[ " Momieur mori Trijrf ; L» contiance i\\\v je
▼^^^(►i- I ra tmu nouv(■lteltmt'lj(ie
k w aiii tiaus uuil, dans le
ti i Je CO lid ij re (Mnir uos
t .M,.^,. i ius la comiuite dii sieur
d ), V()lru aiiibossatlcur, a rt'pnti(iu k
t'l f»t< <leviez oltemlre cJe l%'X<culiciii
ii lis Uii avi^/. iloiuit:ii^ el ^ilus
€/ i.teaceque it^ tioimuii tlesjrcr
dune rntreuiiseausi^i sa^c > > etionu^e
Itiu Ia !>iciiDe ; plus je d qu'il lui
emcure im tcuKiifruaij^e litnior^ljlc du ^raiid
pvraji:e qui? vows avc«')»ien vtiulu lui contier
fe |MiiivuQt y contrihiier par uioi-radme^ je
&(!)• coiijun/ lie »ie nitllre en dXnX de le pouvoir
ire, cui iii'aecurtiant fa faveur que je voufi di^-
fcudepouriui, je sai* cju'elle c!»t considcraldL*,
V ' ,■ '''"■•♦ cii re-
* que p€u
il .luta. - .iFnx jiMii , ..I, i;i tin: y,v%7, .»- i rublfS, qUC
ccitit qui aU'Ucnt a former dtii linisionsi aussi
Snluttfrii et UJi'^M "!ufi«Mi-f- iiMe ii.jHH VCtlOiLS
d*^iablir- ( rai d'au-
tant plu*i «lf iitez bieti
rhtinrrter tl line |^»iiu:f dtuiK i'ortlry iles Cliera*
hiTS dc la Jarn^tierCf et inc i^cuvnyer pour la
Im doiiiit?r, Jc Jic ^ousdirai point que te roi
mori p^ff, confdra uue semhlnltfe^race, dnns
INirdre do iSaiut- Esprit, an
A i'iuiitauc^ du feu roi d* \
' Jill. Voue aiiuUc
iri'i'XtitCe par de«
.11 m It ut rut' jirouielire, quVlle
hcuUt tiiuit-tt ies occasions qui
• ^'"' '' "^" ' n-i'idon plus utile
lo vuu'f ; auMfi
--/^ -.,,., ^^ ;^ue pour VMUS
lWJ»uri?r queje suis, etc.**
iThfl foilawin^ pojo^aifrft in the Memoiri of
'r Julm fUn^by (iviio thwugli related to Woti*
qTi# Chart* « II
4 ri<r, ut^i '
• C*«Hti It* fffKTciml trnit^ d^ilUaiice cotitro la
lukpireinc apf»<*h)it
>i iluddiicult^
<*ux qui
iry» LatH
< uiiuai«ofmeiit
A. p, 1678—1685-
* Ofan^.— Th# ktn^ iniiirt come to s#>me d«-
' HatatiiiU of bis iiitud to ih** partiatfirnt «rb«
• it mt?fris : That which makt^d the hnp^t
Inifuc waft WMich connected with Danhy^ I
%fb()in in»kril he had been Brst introrlucetl
the !: i elatiou to this case :
*v^ (tow seemed to arise between lbs
duke uud ib*^ lord trtaj^iircr. TIte duke thoiigl
hish»rdshi[> w^s uithin himself for bts lear^
iny^tl ' > he img^lit have the kiog''
the I »fi his on u poorer: And
luyloiui'; iielierebe endeafnured
srerve the ' • couKl, though uc» friei
to his reht;i'n.; le- iited the duke's
Much VI a^, $it this tune, done and < I
in disfiivoiiv of the Popish party; -.... ,
c'ularlyit was now that the lords passed tht
j^^reat bill to incapacitate such of the Rom;
Catholic meuihers as should refusp to take t
oatli of alletriatice aud supremacy ; thoui
my loni high treasurer said iu roy hearing
but the ui*:^ht before, be was aure it would
ncferpat^s iu that House.
** The duke of Holstein'g resident bad, it
seems, reported the lord treamrer to be in t1
fiay aud fieusion of Franee. ThuSi at h
lad fi ' ' ' lip been informed, aoU aendii
for Iv it for me also to be present
the t\......,., ..i>M ; but the resident ali^rtlotcfrjf
denied u hnt was laid to his charg-e. To mak«
^ amende for this, T, a fbw days alter, acqutiinted
bis lordship, that the same t;>iitl<'iitaQ bnd im-
sured me^ the CoramonB n ould mo%t cei^ainl
fait upon him^ and that it wa» iu bis power
turn the edge of one that ^vas most violei
agtiinj^t hifti. I told him also, that I had| fiom
otiier hands, been informed* that my coosio
lialpli Montage, sinc4j lonl Monta^ie. latdy
rccallad from being ambassador in France, and
DOW member of our House, would accuse him
there. But my lord gjave no rar to either of
these; nayingt the latter durst not impeach
bun, for Uiat he bad letters to show frtim him,
whilst ambassador, that would prove how uf-
lkiuu£i he was to (icrsuade liiiUt to accept of the
Fretich king'ii money, tbou|fli be absolulelj
refufied it.
^« The Commons toted an Address to the
King, from that Hotistv to rqirfst^rit the ill
Slate of the nation, ami iIm^ dai»}|er it \%\\^ iu, by
bis majesty 'h adheriu*f t4> private councils rather
than lo bis two boiv^s of parliamriit ! this
aimed al my bird treasurer, a h'^ Vttrsof
the cabinet couuciK This v*i< i y two
and twenty totes, and even soiin m mo cour-
ticpf were Itir it ; whence it was by same sar-
miwfd, Ibn '*'■ ■' ■' ■ ^ '- *" - -^ coun-
cils, waH i\ and^
bad am; ^ »»«w
«ajdtbft4< >
that hl» llM . -I ^, : , . : i .. ,![(»
tbe kuig, that tUer<^ was sotnelhmg[ ot probabi-
lity in the accusiauon agamst tite qiiv«o, purely
that be might btvsrktti to a divurv«s and lunrry
atiollisf ttOft tikaly lo U-ii^ cbi^dnm to iIm
crown.
iiA
J
1 JAMES n. Proceedings againH Thomas Earl ofDanhy^ [604
' king than I could' have 'iman^netl ; which
' bein^ added to the French Idol's resolution
' not to part with Totirnay, do, I confess, make
ii
flosj
<. peace yet less probable is, that the duke
' Ifrows every day less inclined to it, and
< has created a greater indifferency in the
" The Commons were now intent upon dis-
handini^ the array, raising of money for that
]mrp()se, and the conviction of Popish recu-
FMnts ; during which the right of the lords to
inlorfcro in a money-bill was warmly con-
tested ; but not to dwell on so nice a subject,
the king caused Air. Montague^s pa|»ers to be
seized, aud acquainted the Houso of Coramons,
that having be^n his ambassador at the French
court, hf had taken on him to treat with the
ope's nuncio, without any commission from
lim for so doing ; aui| that he had seized his
Sapers to come at the purport of the said treaty,
(ut Alontag^e assured the House, that this
was a mere artifice, a contrivance of the trea-
Furer's to save himself ; but that his lordship
had therein faile<i, for that although most of his
letters were seized, he had by good luck saved
the most material. One of them dated the
25th of March 1678, instructed him to acquaint
that court with the great difficulties he met
withal here in the atlair of peace between us
and thcin, and the fear there was the parliament
should discover it : that however he had orders
from the king to bid him treat with them for a
peace, as well between them and the confede-
rates, as ourselves ; upon condition, the French
king would give ours 600,000 [see p. 608] iivres
|)er annum, for 3years,togetiier alter the con-
clusion of the peace ; for that as our king would
thereby disgust the narliament, he could ex-
pect no money from tuem of so long a time :
and finally, that when he wrote back to the
secretary,* concerning this transaction, he
should be silent as to the money, and so on.
Signed, Danby.
*' This put the House into a flame, and a
motion was instantly made, that the treasurer
should be impeached of high treason ; for that
he had endeavoured to est: aoge the king from
his puriiiiinent and make it of no use to him ;
and one jMr. Powel obscrve<l, that this was
usnrpiug a powr'r to the exclusion of other couu-
nellors, who had a right to advise the king as well
as himself; the very treiison that %«as laid to
the charge of tin* Spencers, and the duke of Ire-
land, ill the days of Richard the second. [See
the cast^. Vol. i, pp. 23,89 of this Collection ]
'* But it was auswered, That it was no such
great otfence to write this by the king's own
order, us was rxpresscd in the letter itself, and
would be owned, as supposed, by the king
at this time. That the king had certainly a
Cower to advise with which of his c<mnselfors
e pleased ; and that if his majesty foresaw the
ronfi'derateN would strike up a |>eace, which
we must conijilv with, where was the harm of
making what advantage we could of it to our-
selves, and at the saiue time of sparing the
purses of the subject P
" A second letter was produced, which give
anuranceof indiDatioDs tor a very fair under-
lUnding betweco ut and hif moH christian
majesty ; together with advice to hasten the
peace; because the duke seemed every day
more and more averse to it ; and menti^mf d
some towns to be given up, by the French, as
cautionary, to the confederates, upon the con-
clusion of this peace. Mr. Montague then
declared in the House, that the French king
was willing to deliver up two towns more tlian
he did by tlie former treaty ; but that my lord
treasurer was so earnest and presmng for.
money, that he thereby made the terms much
worse for the confederates ; but at the same
time acknowledged ho could not say he knew
of any money naid either to him or to bis ma-'
jesty. Other things were now laid to the trea-
surer's charge, as the male-administration of
his office, and thelowness of the ezcheviner:'
but to this it was answered, by his lonlship'i
friends, that a debt of 600,000/. bad been paid
off since he had been in .^office, thougti do
money had in all that time been given to the
king, but what had been appropriated to the'
uses designed.
'* He was farther accused (this letter bear-
ing date tlie 25th of March 1678, and the act
which gave moncv to the king to enter into a'
war with France nein^ passed but the 20th) of
deluding the nation, m advising the king to
take money for raising an army for servica'
abroad, and at the same time treating for mo-
ney from France to make a peace, which
looked as if a standing annv waa designed to'
humble England, and not France. In short,
the question being put, it was resolved, that-an
impeachment be drawn up agaiust the lord
treasurer, and a committee was accordingly
appointed for that purpose.
" Mr. Montague was, in this case, justly
censurefl, for disclosing what had passed
through his hands, when a public minister, with-
out the king's leave. Mean while, the trea-
surer endeavoured to destroy the credit of his
accuser and produced some letters, from him/
when in France, which were read in the House,'
and made it appear that Montague bad been
very guilty of the offences he threw upon his
lordship : But his enemies were so many and
so powerful, that the whole edge was bent
againht him ; in a word, the tide was not to be
stemmed, and six articles of im|>eacbmeot
I were drawn up against him.
'* But a debate arose, whether, supposing any
of these articles to be true, they amounted t/k.
high treason, none of theiii being within the
statute of Edward 8. At len^h the question
being put. Whether or no an impeachment of
high treason, founde<l upon the said articles
against his lordship, shoul^l be carried up to
the House of Lords, the Ayes were 179, and
the Noes 130. The impeachment then waa:
carried up to the bar o\' the House of liorda,
where it being[ presently debated, whether:
or 110 hif lordship abouklwitbdnwi it waar'~
liad
'iiKiin;^ the
Irnili witli tbe
til. c lured tliey
Jor High Trimm*
I me cte^puir of ttny sccotnmotlatjon : Nfter*
^Uidiss 1 &m oft^umt, tbat une priudp«l a&u&«
[ in the tieiriilire by 20 voices; anil then
oili i ' i . luvneu lor Chmtinas eve, aotl
*'Tbe JJuu^e^ met, anrt the Commons hen nl
tnue fviikace c*»nrei'nim»' *h«" lU'uih of sir
ilttiuiiijbitry C^otlln'Vt i^<^
nViU nn acrouitt of the n
DsJe in the iimtiey-t)iil t
riiiy. The Mirite day 1 khi
Etn^ and Uic duke, w\\u U
I'otdd adhi'it* tu my lord trensurf r.
*^ The nf XI dtiy lire Lords voted, tlial he
ihuuUl (lot he coitiniitted : aiuj the sime day
he dis)>ii(e h<:lween the tn'O Houges concern-
ttj^ the 3for»ey-Bill, wa» decided l>y a von-
prencef and the bill jiHssed both Houses. And
pro 1 eantii't but mke naUce, thut the kin^ oh-
rvmii the loni I;)tiiiHard to be very violent
the House a)4:;iinsl the lord Danby, {which*
t neeriti, took birth from a peisonai |nqiie to
^ lor obstructing a ]>eu«iou he htid from tlie
ov^n) t«l«l loe, * He wondered at it much,
fing \m father came to the unfortunate end
I did, by the very self same method of pro*
iJure.' '
^* Anil now, when it was leatt expected, the
lin^ pmrogued the parliament to the 4th of
Tf liruary ; iome flaid in Ikvour of tlie papists,
klltrrs of the lord treasurer, and other* aga'iu
\ defiance of UiH prcrojrati^e, which wjh more
hanonrwiiy iiivwdcd by (he CommoDe : But
, at the same tiuie declared he io-
It* li^batitl the army, and prosecute the
UiiiiLs* id rhv Flot. .Moiitat«ue was now dis-
t»vcred in a dix^ui^e at lioier, iu Uia way to
Kmuce,
** My lord treaaurer Mnt for me, and toM me,
b<? kind' l^«*l declttTcd he would dijisolve the
nrhatiieiU, nod advived tue to make iiitere»(
soon fkM I cfudd :»^atn»(t the approHihiiibr
lleciion, for that another par I i an ten t uould
fc't^d'ijv be calUfd. This partametit was, for
1^ 'irl^t'iTV loyal both to thi5 kmg and
[•1 I ; i*bioh mHik*i|j*Hpj' of ad^tTite situ-
Uiieut^ vi'r y def«tro«t9 of its dis^cyUitiou ; and
he wiiy they contrived to hiinc it about, as wu*
ireihbly reported, wa« by persuuding the Irca-
urer to obtii»i» ir i»f ihe km^, nroiui&inf; if he
hould MUi - \a, thut ifiere should hi*
> farther u i^aintt him in the next
Br]mm«*rit \ nm ii'>y deccivcil hmi, at he af*
cr>*ardf f\|ierieii( ed.
'* Mi\TiU W79^ The Commo- ' -— - * ■ t-
tiifry wiih th«? treanurcr, for ri
Uey hud p.<»..«isj *! 1. ..i !,, . n
ih;
Tk.
tnd 1'
■ 4 hua oot to n ua-
r '-of rhitwtnv'thi . but
^|u:%iy iiill >l, Th;it vutliDUl hiji
■lion, til vi of none etfect,
f\\i Iha Bif^^^^Bi^* iu tba baiis« were
A. D. IWS— 1685*
reoe
* of the adjournment f<ir Ihliieen dayi, has been
Mo^eeifuny exjMidient for the peJice could
concerned (hut su< h i>ur»cli|ioa should stand in
the way of b» | mully when husineat
of such high h. . lay before them; hul
the Aogjv parly v«iis deaf to at( remonstrance;
and the ting, by way of rxpedieut, prorogued
the pDrhamtnt 'to the 1 hh instant, and from
Thence to the liih^ when serjeant Grc^orj
being elected, both sides wei*e siitistied.
*• Ihe storm now begins to fall htary upon the
loitl treasurer, insomuch thut lie has thoughii
of delivering up hisi siafl, and ivitli it bis of-
fice, iu hopes by such resignation to allay lhi»
heats agaiust him. I was averse to this step» 1
confess, and would have had lum stood bk
p-round, as long as the kin^; wotdd stand by
him, saying, his resignaiion would but eiposw
him the more to the power of his enemiea ; m
short, that the Lords would fear biiu the hesi|
and the Commons not love bim a bit the belter.
Several persons had ifol possessed of good em-
pbynients, not so much by my lord*8 favour
and kindness, as by giving money to hb lady,
who had for some lime driven on a private
trade of this sort, though not ^lithout hia lonl-
sliip's fKirticipntion and concurrence. This
I knew, but had neither the fecc nor the incli-
nation to come in at that door ; so that 1 vkn»
postponed to many, who, as I thought, de-
Ncrve<l as litfle as myself; but they had but a
bad bargain t they were uow nil swept away
With the »otne torrent that began to overwheltn
his lordship ; agiiln^t whotu freBh matter now
appeared, upon the evidence of Beilloe, before
the Committee fippoiuted to examine into tho
Plot, he accusing the treasurer of having tam-
[tereil with him in tly durin^f this interval of
pQrhame4)t* And nov» every thing went hanlcr
and harder with his lordship'H trieods ; so lliat
my # h'ction being cuiilrovirted, the committee
of privde^es and clectious, m a tew tiays uiWr-
ward, jrave my cause aguin3»t me by a atwall
miyoriiy of two auly \ v^hich considering^ the
stream of the times', i rcckooed to be as gowi
as half a >io'ofy at ka5t.
*♦ In the mean time a message was senita tli«
Lords, desiring the treasurvr might l>e coco •
mitted; but thi ir lords*hipH h«d but jua bcl«»U
voted hint cigbttlaya t»» prt-pary \m dcfcuc-e m^
The CouHuon^ n^icated ib^ir for: -^ ^'*
to the lairds ; atul tlie next day t!*
io tht^ tlousLMif l^»r*K4 in ♦*'"' '
formahiv, ii*forit»e.l both T '^ *^ ^
..i.t ih»' ^^^^^ "'
prfrduccU by MoutmpM-
I treat urcr w ho hat) cjo
Ml ihal it >vas himiwir wli
iv^„n lifiK^ to lime, m-» I|
by his nurtic'i
written thu I ^
thut it wvH Ui
craled titt: T'
uAi\ It Wn \'J
•I
a|i;ain trn Itfo*-**
tended U-
and to J
** SSome v\yiiiw M'*
007]
1 JAMES IL Proceedings agnhisi.Thomax Earl ofDanhi/, [608
* have been found in that time ; and the effect
* of the adjournment hath hitherto been, that
* nobody will now believe other than that the
* peace is already concluded between us and
* France.
take refuge abroad, as what would appease
both Houses : and indeed the Lords had a con-
ference with the Commons about picparinn^ a
bill to banish him, and the Commons desired
0ome days to consiiler of it, iu hopes he would
have witlidrawn in that time. In the midst of
this perplexity I saw his lordship at midnight,
as be came out of his closc't, from advising with
his friends what to do. He gave me a great
many thanks and good words ; told me he had
recommended me to the king as a fit person to
be sent his envoy into France ; as also where 1
was to make applicatinn in his absence, if I
wanted any thing with the king.
<( The next day the Commons, in a great heat,
refused to comply with the Liords, in their bill
of banishment; they said it was too slight a
{lunishment, and sent to demand justice of their
onUhips against the treasurer, declaring, he
ought not only to be punished iu his own per-
son, but his posterity likewise, as an example
of those, who fur the futui*e should succeeil him
in his office : but before the message came,
the Lords had changed their minds, and sent the
black ro«l for the treasurer ; too late though ;
he was gone, and now it was surmised the king
was grown cool towards him.
** A most unhappy thing it is to serve a (ickle
prince, which, it must be owned, was part of
our master^s character. Had tlie treasurer
considered no body but himself, he might cer-
tainly have fared better ; but he resolviMl rather
to suffer, than to do any thing that might de-
rive any dishonour on the king, orothrrs about
hill), as he has since said himself. Thi.s givat
change, 1 m«<5t own, mnde ino si-ridiisly pon-
der the iiiceitituilL' of luiiiiuM graiidi iir : *lt was
but a i\'W mouths Inlorc thai few things wcic
tran'^acted at court, but with ihc jiriviy or con-
tent of this great man ; the king^s brother, an<l
favourite mistress, were ijlad to be fair witli
him, and the general address of all men of
business was to him, who was not only trea-
surer, but prime minister also ; who nut only
kept the purse, but was the first and greatest
confident in ail affairs of stnlo. Mut now he
is neglected of all, forceil to hide his head as a
criminal, and in danger of losing ail he hus
^t, and his life therewith : His tamily raised
from privacy to the dejj^ree of marquis, (a pa-
tent was Uien actually passing, to invest him
with that dignity ) is now on ttie brink of fall-
ing lielow the humble standof a yeoman ; nor
would almost the meanest subjeirt change con-
ditions with him now, whom so very lately the
greatest beheld with cnvv. This" coAfirined
toK in a hehef, that a middle state is always the
bett ; not so lowly as to be trodden on, nor so
lofty as to fear the blasts of enwy. A man
should not be so wanting in point of industry,
atnol to<ndMT9ur to distinguish himseif in
March C&5tt67Q. .
< In case the conditions of the peace shall
) be accepted, the king expects to hare six
9 millions of livres yearly for three years from
' the time that this agreement shafl be signed
some sort from the bulk of tliose of his rank ;
nor yet so ambitious as to sacrifice the case of
this |jfe, and of that to come, hy mounting
over thi! heads of others, to a greatness of
uncertain duniiiou. But to di;j;rcss no far-
ther.
'* I wrote to his royal highness, to acquaint
him with the posture of affairs here at present.
The two Houses of parliament continued in
division, as to what should be iufiicted on the
fallen treasurer ; tlie Lords adhcriitg to thrir
hil) to banish him, and the Conimohs to their
Bill of Attainder, till al last it came to a free
conference between them. This husiucsj, ard
the plot, engrossed the attention of the Houses
for a long time ; during which time it wa
thought the lord Danby lay concealed at
Whitehall.
<* The king seemed not at all concerned at
thus parting with his brother, and his treasur-
er ; nor in any degree solicitous alK>ut the use
the parliament would make thereof ; though
it was suspected they would get their onu
friends into power, and obtain a snip of tbe
prerogative, in consideration of the money
they gave to his majesty.
** My lord Danby at length surrenderiqg
himself, was committed prisoner to the Towi-r,
where going to pay him a visit, be seeiued to
be very little coiicerneil.
" l\ly lonl Danby returned answer to his im.-
Iieachnicnt, to the upper house, pleailing the
[ing^s pardon. This was sent down to the
Commons, who referred it to a Coinmittee';
and the result was. That his majesty had up
■ po\\cr to grant pardon in this case : The same
' day both Houses began to cast leflectionsoo
the Dntcliess <if Portsmouth.
! ** i>Iaif:h, 1(5»;3. Two days aftorwanls, I
. went to see lurd Danliy in the Tower, and found
I him to express himself much more obligingly
■ t'lwardb Lord Frivy Seal, than lie hail been
j used to do heretofore ; amongst other tilings,
i he said liis lordship had taken a prudent und
■ lu'coining course in declaring himself for a |»ir'-
: liuuient. inA that he was very glad of {t
' ufxui a pri\»te aeeniint ; for that he despaired
\ <.f l)'.i ig enlart;ed till llit- re was a sitting. He
sjilil, It.rd ll«jeIu\si.L-r and bis party niight sup-
; port themselves for a while, hut that the iqter-
I est they huil: upon was no better than a sandf
fiumdaiion.
" The next day 1 communicated this 16
lord Ilnllit'ax, who on his part sceuieil also to
hr more favtuirubly inclined towards lord
Danby, than \h' had for some time been : He
said he had already eneir.ies er.uugh, and thift
what he had to say against th^t lurd was noW
out of his mind ; but that liou ever he would Dok
now make himself enemies hy being his lirieiM^
as he had foruicrly done by being; otherVMti
* butwtvt h\9 iiiije«(v mn4 the king of France,
* t)^«.uie il i^ill im Wo or ibree ^Mim before
•o ihtt I fonofi Lord Privy Sctl wns making' up
his ir>f<*iVBt oil th« one baniJ, as loriJ Rocbrster
was on the oUier, for the latter lifld tent for
^ymmir to coon, tlid proi&iied to be liis
IVieftd."
•• lfi64. Affiiim were now ebiefly nnder the
tnvntg'ement ef ihe <ftike of York, wbn car-
ried every i? h a rery lofty Hand ; biit,
whit ji vt ,^, the earl eif Danbi' u as
on the poiru ot sttpmng- Out of the Tower,
fliougb iigTiinsC his bigbnese*! coriwut. Mv
l^rd P»-r?y Seal assored me his enlargemeni
was ftt band ; tbitt be bitmclf hnd been his
lorAihi|»'9 ebief friend, iind that the king' hnd
Blide Dotb tbednke and lord Rochester seem -
§Mgif iel tbeir handa to it. The duke, in<lce<l,
*ippejir»d to be lienrtv in it, and tb^t the kin^
Wtso, there could be no d'nibt ; but Roches-
ter and Hnndrrbnd did UTiderband opfjose il
with mi|;bt and rnain^ and so contrived rnat the
tt delaynl m bnij cm bis birdship till the
ImI day of the temi ; those two lords
iing-. That Danby migiit join with Halh-
ftfX 10 wedien tberr tntere^^t.
«* And now it was n*«solrc«r to brinfif a Quo
'WarrrnitOf if with any colour of ji»sri<^e it could
he done, agninst the cbftrli-r of Yoik ; jind
4wo days aftiTwanls, lord Danby wu^ hailed
4ist of his lonvf r.»r.flrif .m« nt of five* years, as
^ere aJI the i'0|t uit bad k-en under
dumncecTer siij i i.e uf the first plot,
^Lord Danby cunne the same day to kiss his
tntjeiry^i hand in the bed -chamber, w here I
liapf>etted to be jn'esent. Tbu king- received
him irery kifxHy, and when the efirl I'oninlaiued
^hislon^ irtipritoomeni, hismtycsty told bini,
he knew it wnii aifaiikst his oomieiit, wbicb bia
lofflailiip thankfully acknowledged ; but tbey
i«# flo maniipr of prirsle disc4 innMi tojjetber.
Wy lord Priry Heal (ni»rqni« of Hallifax^ cnme
into the presence nresentty alter, and the two
fords fliilated e«cb other; but it was very
lightly done on twtb aides. The next day^
hOMeter, I went from the lord Privy Seal, to
Witt upon the enrl, when bis lordship desii^ed
fii0 to J* rest nt bis sertice to liim, and to tell
liini. That be should have taken a m(»re pur-
tlcnlar sort of notice of hi m, butthatbetboni^bt
it would not prore so much for bis scnice :
And the eari sairl. It was for the very aelf-same
reaiBon be bad behaved so ind'dVereotly towards
his lotdtthip ; for there was at tba.t time jfreat
ifvlou^y ot a friendship between them. LonI
Danby told me, he wotdd retire to his bouse
t»ut of town, nor concern biins< If with bnnineia,
llloti!^b hf' doubted not but he mit;hi if lie
would, but not mKJn tlie national foundation he
#avred, and therefore would have noihint^ to do
iridi it, declaring bii aversioo to a French or
» Popish interest. He told me rIso, the sub-
ilSlK*e Cif lithat lind nn^JscJ littw^ujn tlir <fnti<.
and bini, at the «
■IbR' he bad het^n
HMdentood hit lortbibip w«« tipoo sm rety af-
\0U XL
* tie citn hope lo find his porliatnent in an hu-
* inour to give him supplies aOer the baring
fectionate terras with that prince. He ^laid
bifi highness told him, he bad heard be had
spoken ?<lighting;!y of biro, and that he answer-
ed, It was true lie hnd often been so unfortu-
nate aft to differ with him in opinion, and could
not help saying", That he had never yet found
any cause to repent him of it ; but that for ex*-
nresiing himself any how against his fierson,
if lie bftard so, they were whispers and lies*;
And desired to know who were his luiormerK*
but the duke evaded that. In i^boii, 1 found
by my lord privy seal, That he »nd U»e earl of
« Danby had a gowl undci*^tanding together*^'
ColtinB concludes a character of Dmibt
drawn in his utnial matiiirr^ (see the Note to
8eyrnoor*s Case, vol. 8, p, 132, of this CoJ-
lectinnjby telling us, that ♦* he was a strict
oliservcr of justice, antl wan also nn ablestates>
man.^^ In that admii Jde piece of satire the
ballad ** On the Young Nlfttesmeii" (wbich
though publibbtid in the ColltfCUons of tb«
works of Dry den, 1 should from the in-
ternal evidence of scntiuH.'nt and style ascribe
rather to Rochester) it in said lb at
*' Danby's nifttfhl.^itf impudence,
Helped to sup[K)tt iht? knuve/*
It ppp^ars by a dispatch from BariHou to
the French court, da'.ed August 30tb, 1685,
that lord Danby introduced the met bod of buy-
ing rotps in parlianicnt. See Dairy inple*»
Memoirs, Appendix pta-t 1, p, 153.
Sir W. Temple writes as folio wi concerning
the lall of Danby :
** The short parli^^ent met, with the dii
putes between the court and the common*
about the Npeaker, begun, indeed upon a pique
between the Treasurir and Mr- *Seymour, or
rather between my lady Danby \niJl him.
Howerer it w*s, this soon ran the House into
such violences again!»t my b>rd Treasurer as
ended in his ruin ; first Ky the king's sodden
resolution to remove bim i then by tlie Com*
tnona continuing their puniuits and impeach-
ments; and la.st. In hiv !<»rdsh)p*!i first conceal-'
ing, and then i himself in the face of
this storm, whu ui the Tower.
*• Xi\er these beats of the Cmninotis, which
increased into new measures and motions
among them, as they were swayed by jK)puIar
humours upon the Plot, and tnany new plots
layed by the ambition of private persons car«
ried onVmder covert of the other ; I never saw
any man more sensible of the miserable condi-
tion of his affairs, than I found his majesty
upon man- ' trses with hinip which my
foreign its and corre.spondence^
ouidewsv i '. i,iii nothing he said to mo
moved ine more, than when, upon the sm4
nrn»,p^rf of them all, he told me^ be had none
n be could so much as sjieak of
'fuce, since tny lord Trea^irer's
being gone. And this gave, 1 stippotCi bis
«U] IJAMES IL
* made any peace whli Francr
uiajt'Sty i!ie occatsion of er.tcrinc^ inlo more
coLiiileiice ^itl: iitc, llian I cotihi deserve ci-
e\*y\ V " i'.Ki tl)'i;» |>n>cecils to tell us, tlifitii:r
cuUa.ji.! ol' iiie J^oni Troasuivr*s reiii'jval in: J
be<*n carrird oi\ by the duke cf ?Iu.imoutii in
c'oiij ntrioii wilh ';iic il'.ichcid «!' Portsmoi^il)
aiui \ni\[ £r:.v-x, and thi;t Si.tij .\ziA vias ai
least iu conipliauce willi this knot.
Freqi'vnt mention of Danby and of these
procecdin^^ against him is mane in tiic Lettei-s
of Algfemun Sidney to Mr. Savile. The fol-
lowing extracts exhibitin*^ bis re^iorts of wb?t
was occurring while he wrote, wdl probably be
not unacceptable or uninteresting^ to most
readers :
" I presume yon know that the earl of
Danby rendered himself to the black rod on
AVcdncsday last ; and thatdesiringf of thevlords
at the bar/that for his health he mi^ht be suf-
fered to continue under his custody ; that he
mi{^ht have recourse, as often as occasion
thou Id require, to all state papers that were
neoessory to him in making his d.i'cnce ; that
he might at once have a copy of all his charge,
and be obliged not to answer to any part, until
the wb(»Ie were before him ; and that he nti^ht
have Serjeant Weston, serjcant I^ynio'nd, Mr.
Saunders and Mr. Holt as:iip:ned iir.to liiin i'ur
counsel : he received no other niiswiM*, ilin:;
that if he told ^hat papers he desired, the
house would do as was usual in ti.ose cases;
that tlic House of Commons could not be
&bridi;fc'(l of the liberty retained to itself, of
brinuing in additional charges, if it were
tlKaiu'ht tit ; that he might have for his coun-
sel, Kurh of tliose he ha4 named as were not
of the king's; and that he must be committed
to t]i(» Tower, where Cheeke received him.
Subtle nn;n find great mysteries in his render-
ing hiui&cif, and make the king to be of tlie
lot ; but those that see no farther than I, be-
Le\e ho hath had in this, and all hi., bu^inessci
of Ltc, no other counsel, than his lady."
April 20. " The live Popish birds in the
Tower, had at the first given in cavilling un-
certain answers ; but Bellasysc and Peters on
Thui-sday, and Powis, Stafford and Arundol on
Saturday, without any ambiguity, pleaded Not
Ciuiltv, and declared they put tliemsclves upon
the lords justice.
" The earl of Danby hath not thought fit, as
JiTet, to deal so clearly, but hath put iii a huge
ong answer, containnig great prclestations of
his own innocence, as to every purt of his
charge; ami tlicn pleads his pardon, which
enumerates and aecjuits him of all the oriines,
that it is a]nH»st ].ossible for a man to com-
mit. This is by Nome thought very strange ;
his innocence that he protests declaring that he
had no need of pardon, and the pardon pleaded
in eflect acknowledging the truth of his charge ;
it being useless if he t^ not guilty. lieren|Min
Itther questions do arise, as whether the king
«u pftrdou f ^Vh«tli«r if be ha?e thit power.
hi
Proeee(fi77gs agaimt Thomas Earl ofDanby^ [^6tt
and the ^ ambassador here has agreed to that suiDy
he hath rightly executed it, the formalities not
hii\*ii:r l>«--;) observed ^ And lastly, whether he
will iiisLvi upon this answer, which will not
lea^e iiiai any plea at al', il^ the pardon be
ju'iged d( i' cli\ e ? 1 dare give no opinion upoo
tliese n(K\\\\^ bv. 1 hfrir the Ieam<Al say, the
king cliunct |u>.rdou a luan impeached by par-
liament upon a iiublic account: that thoueh
he could, this would be of no value, bein^f de-
fective in all ihe torinahtics: and tliouffh per-
haps the C(. irt may be pievalent enough ta the
lior.'c of Loi ds, to have it udmitt^ ; that
w culd be of evil consequence, no man doubting
but the House of Commons will extremely dis-
like suc:h a judgment, and gprow very refractory
thereupon ; and the whole nation would foUov
them in it, so that all business would be thereby
obstructed ; by which weans tlie king^, ouoo
the |>ersonal account of the earl of DaDDy.
would lose the advantage of all that hath ben
done of late to please the nation ; which I leave
to your judgment, that know the court much
better than I Ao, This point I only find to be
clear, that if the pardon can bo found good,
though the formalities are wanting, it wdl be
made ffood; and the burthen left upon the
chancellor, that put the great seal unto it,
without taking care of seeing them observed."
" May 1 ;>. N othinor was done the last week
conrcn:u:g the Popish lords in tlie Tower.
The earl of Dani>y on Snaturday last did insist
e.pon hiri former *plea and answer, how little
sense soever there be in it. Some say it it,
eM indtutria ptrplcxa ; and that having the
court and housL' of lords to favour him, he
ca&es not foi* the inconsislcncc of protesting bii
innocence, which renders his pardon useless,
and pleailini; his pardon, which is a contessioo
of ;{uilt ; hopi:}g that if tlie Commons do demor
in law upon the two |>oints, (first, that the king
cannot pardon a delinquent impeached by one
commoner, much less by all the commons in
En i£ land ; secondly, that though it were mnt*
ed he might pardon, this pardon couldi not
hold, because it wants all the formalities) the
lords would over- rule it, and then he is ac-
quitted. The whole business formerly mea-
tioned of the earl of Dan by 's endeavour Is
suborn Bedloc to renounce his testimouT, was
the last week verified before a committee of
lorcis, and Dumblain his man confessed he had
been emplo^'ed to do it ; so that his lordship is
found to have done just the same tiling, for
which Reading [See his Case, Vol. 7, p. 859,
of this Collection] stood the last week in the
pillory.
*^ I'be house of commons have voted that the
pardon pretended by the earl of Danby waa of
no value, and went up to desire justice uponi
him of the house of lords. We live in a timt
that no man, by what is passed, can well judga
what is to be expedited for the future ; but I am
much inclined to believe, tliat Danby having ia
this last act followed his own dispontioOt Onft
ever delighted in JMggling: and
613] far High Trefum. A. D. 167S— 1685. [61#
feut iKHiar to loit^a time. It' ^ou fitivl the * peace will not be Aocepteil, yoa ftre tid ta
be given by one or both bf>UMf'S. TbinUy, in
case tiie kin^ can panlun^ Hhtlbcr lliis huth
the Ibrinahties nKjuiri'tL > Fourthly, if tfaif
pardon be not good, whettier he tnay be ad-
mitted to plead any lliiiig' elite. Fifihly, it he
may plead, whether liic points be is accused nf
amount to treason, which mri\ " ''v exer-
cise the houte until it be r • pro-
rosfoed, The two houses difk-t ii\-^^\ m tijyt the
lords would fir^t try the Popish lurds «nd the
coinmons would (i^ivc the preference to Dauby*
•* June 1, This day w as se*nnight the pro-
ro^tion of the partiamcrU ^ as spoken ot« hut
beui^^ then uncertain, and (as 1 thought) not
hkc to be, I was not wjllitiur to mention it ; but
it fell out the next day, and all racn^s wits hare
bi'cn screwed ever since that day to find out tb<
coDsequeuces. £very body hath had his con*
jecturef and the most ignorant shewed them-
selves the most bold in asserting' their opiniofM.
Many find that the kintf would not baie don*
it, if he had not reitolvid to send tor the duke,
keep up the urmy, desire assiatanc^es JVorn
abroad, sell Jersey and Tangier to the French,
(for which Mr, fc^avile is to m&ke the barg^aio)
set the earl of Danby at liberty, and with tha
help of the Papists and bishops set up tor him-
self. But instead of this we i!ee little reason to
belie ?e the duke will think himself well here.
The aroiv is in part disbanded, and had been
cniii'ely before this day, if it had pleased
colonel Birt'h. The place from whence th«
foreign assistances should come is not koowu :
Mr. Hfivile i-i not thoaijfht very i^uod at such
treatir? : The earl of lianby is like to lie wherii
he \^j and the utmost help Ins majesty can
(for otiiTlit 1 beav) exi^rct, until the parlia-
ment do meet, is, by Fox, Kent, and UtiO'
condj^s credit, which perkaps will not be fouu4
to be very «teddy foundation. M
♦* OctoWr 99. There is a paper cast aboal '
the town of the earl of Dauby 's case, ^vhtcli
makes a fery ill one of it; and amongst other
thing's 10 prove he was not of tlie French
fuction, he say$, he oeeds alled^e only th«
French ambassador's discourses of tiitn at
madamc Mazarin's; this new log^ic of proving^
a thing by a proposition, eilhpr ftlse, or as uu-
eertain as itself, being^ looked upoo as the iu*
ventiou of that excellent wit/^
Rof^cr North, in bis Examen, mention
Danby *s Case with his usual abuse of Kcnuett
who IS nttacked also in the Intrmtuctiou t<
Danby 's ftlemoirs. In his Life of his hrothe
Lord Keeper GuiUoinJ, Norlli writes thus
Ddiiby^a Case :
*^ TIk' *Miil of Dniiliv tliMii/liI hp inuilfl <vrTV#l
fill, by the tricks he hath played, have found o
iy to hang^ himself.
»' May 11, The last week was spent for
the m*i«t pnrt in janclinp between the tiro
h' lori points of privilege relating unto
'■' -le lords pretend unto in points of
jij 1 .; which the lords Frecheville,
IviivM , Ferrers, Ay lesbm^, Northampton,
aiiJ koii.e others cipiul unto them in under-
■laoding, docpimce «nd reputntion, do with
thehelpot'tS'^f'^i''''^ very luugiianiiunUHly de-
fend, 8eii .ilshave brt^n mtide by
itie coinmoh .rr«ni»' with them upon all
the points in quesiion, or appuintintj a com-
tnittre of finth b(*uses, which, meeting; together,
t' t all those tliat loight be occasion
*'■ - ; T»ut I heir lord>hips disdaining to
^' poiotB that as tlitfv did suppose de-
T' iiy upoD their wifl, on Fnday fast
flm rote iiiui fbey would have no such com-
mittee^ which vote wns carried only by two
TOtces, the ' liavinp 54, the othc'r 52.
W eighteen /it were present, sixteen
e- »*vM.4.»ii5i side, and only Durhnm
'- wt!re so Immbje as to join with the
Of those b% one aud tiflty the
'tested, and i think only laziness
'i earl of Leicester, who u as the
ft'.
1.M ' . -
othrr, not to pmttTit, as well as the other** with
whom he bad rotciL On Saturday lliere was
ft cooferenee lietween tlic two hotists upon this
businew, and it uppearmt*' thni all proceedinijfi
ivould stop thereupon, it tjciti^ impossible for
two to a^rpe i»j»*tn any thliii;, unless their
t!v ■;"■■'
to^
th>
-tfe conuatmicat^JiL they
y to recetio fr*mi that
; jfrjiuao u committrc of twf tie lords '
j(h u double numbi*r of commotis
** The houRe of commons have forbiddeii all
commoners of Enj^Innd to be of »^'hh, .i \ t.> {{i^^
earl of Dauby* under th«* puin ot m*
«d betrayers of the rij^his of nli th uons,
by whom he h accuseil, uuless leave be asked
ajjd ^iven by tJiem.
** May 19. The lords and commons hare
not yet found the way of a^reein^ upcni the
method of trying" the earl of Dunby and the
other lord*. *The bi»iliops ore thi» principal
cavMi of the dispute, off'ectinvf a right to sit as
latffH^ and content themselves to leave the
lilSt
I'.e, until they come to
i\ t
' I.,
?of ii
tiootliatthr
tlv" t- '^i
tl.
toinus 1
do uo. [
ju-:,.:. .
4itticulUcs, ihui ai^ very I the
ebief of which arc, ftrst, wli rth
|>ow«r to pardon one imp^
ysona; accondlv* whether
) IIm mlsratory pa; l gl Ikt: Uw, is tQ
III him.
nuooniiiKiud oi '; iiud, ujiU'nd of hiu
^hnritiir t'lf* p'»'j OTtrMintt it, he funnel
;U*/*I LliUL it ^. IS liio » WOlf by
lold neivhi ii i>ali3 u, nor kt tt
^o; iMidf tbr ccrtaiu, it btt bitn At Iftit: j*i
810} 1 JAMES n.
* meotion the mbney at all ; and all powiUe
* care raust be taken to have thii whole neg^-
Proeeedingi agamH ThomMt EOrt ofDoftigf [619
* tiation an prttate at ia povibto, fe fear af
' giving offence at homey where Ibr the mMi
as when a barbart)U8 mastiff attacks a man, he
criirs Poor cur, an<i is pulled down at last No
the earl's favour did but give strength to the
creature to worry him. Herein he failed, 1.
In joining to aid a design of which he did not
- know the bottom. S. In thinking a k>rd trea-
surer, tliat had enriched himself and his fa-
mily, could ever lie popular. And the plot
went KO far against him that he was within an
ace of beiug accused of Godfrey's murder.
But this was late. In the mean time, upon
the producing of some letters of his to Mr.
Montagu the embassador in France, in the
House of Commons, importing a treaty be-
tween the king of England aod the king of
France, fur money to be paid upon the peace,
lie was impeached ; articles of high tresbon
was brought up, and he waa committed, and,
after wards, pardoned, the pardon pleaded, and
the validity of it disputed by the Commons. It
was first considered if the earl should venture
to plead the pardon, or no, lest (in case the
pardon wen^ disa ironed, and his plea over-
ruled) it would be peremptory, and he not be
admitted to plead over, as non cui, . or what
other special matter he had to defend by.
** But notwitlistandJng this hazard,* that if
the Lords had judged against the king's power
to pardon afler an impcacliment lodged in the
Honse of Peers, he might not be iSlowed to
have pkiadcd over, taking the pardon pleade<l,
as is usually held, to be a coofcssiou of the
fact ; yet he did plead his pardon to tlie im-
peachment, aad relied upon it. And so it
stood, at the dissolution of the Westminster
parliament, ready to be argued and debated in
the Oxford parliament. And, if the expedite
dissolution had not prevented, it might have
made much ado between the Lordir and Com-
mons ; for it was not probable tliat the Lords,
by enervating the king's pardon, would have
kft thein5<elves liable to be impeached, and out
of tlie power of the king's mercy. But the
faction, in all discourse and writing, asserted
the iiou- validity of the panlon, with all the
wrnestiiesN that could be ; and, at the samo
tiiius the men of bw stared at such a pre-
tenirc, as an unheard of innovation, accounting
the offence in the impeachment to be the same
as in other courts that liave cognizance of it;
that is treason against the king ; which, as all
felonies and iiiisflemeanora are, is punishable
at the king'tt suit, and may be released by him ;
the impeachment lieing hut as an indictment in
the WiiiU court of parliament, which is the
kinir\<! suit.
** Thrre is a certain heathen English plitlo-
•opher that says, * when reason is against men,
* men will he against reason :' which notable,
worldly saving never shiueil bri^^bter in anv
instance than ia this; for it is hard to pick
out of the whole law, a maxim more sure than
* that the king can pardon all high treasons'
wiVerBalijc. And yet^ irtai paMion vat at
work, and resolution takea t§ urgit lbs kiA
Danby to the death (far what
ther to press some secreu out of him, or i
wise, touching the desperate depcadrpoM if
the time, I attempt not to gay b«) it ia «a
wonder that arguments, such aa ihey ««%.
grew up hke mushrouma. . Hia Inrdsflip tttid
to observe the method, wboii •oista
viously resolved upon, wfaioo ooiilcl noi ho
maintained directly ; aa here, * Thai the fciof
< cannot pardon.' First, say they to thennelva%
is there any case of offences by kw, that tho
king cannot pardon ? yea ; pnvate rig hii. aa
appeals, and common nuisaooea. 8ov yoo aa t
then this impeachmeat is for a ri|pBt o€ tho
people, and is their private suit by their i«pre«
sentatives the CommoDa; and, ralhar thu
fail, call the offence a Duisaoce. And, t
the tables, see how with positive i
asserting, if people iro|iortunely give woylo it,
and quit the plain text of the hiw, «ny thing
may be stood upon. It^ may be |Nrov«i thai
the king can pardon bonds and mortgagMi
For ask, first, what^aii the king panhm f as*
swer, uiitlawriea, and traanasses vi of mrmk.
Then, because a man may no ootlowod in dok,
call tlio bond an oulhiwry ; ami, hocMiae a ■■■
may enter by virtue of his mortgage, eatt it a
tres|)afls with force. It will be smd llMt
points are too impudently urged : 1 grant it.
And what is tO be said of the other ; lor, m
kind, they are the same P Hia lordahip waa
always of opinion that all false reaaoBioga, m
matters of life and property, were of daagenua
e(ms(H|uence : and that men are not aware
of tlie mischiefs to the public, when, fron high
places, times serve themsdves uftbem. For
which reason his ordinary sentenoOv oa soeh
occasions, was < nova, non vetiu orlnta fidlil.'
*' 1 do not meddle here wKh the history of the
case of tlie earl of Danby at large. It may
be found in the Examen, and, for fail, ia iui
own memoirs. But I cannot omit one paiMg%
touching only his lordship's concern raapoet*
ing the parliament : and that is the point of
his being bailed ; wherein his lordship difersd
from some of his brethren. The quaitioa
turned upon the authority of parliamoat- ■ Ho
stood committed by the lords, upon hia im-
peachment, when tlie Westminater parUooMil
was dissolved ; and, at the samo lim% tho
untried k>rds, committed fiMr Oatea'a plet, kf
thereon the like account. And now MtklM
earl and the Popish lords thought tbol, kf
joint influence, they might get to ho hsoMi
Accordingly, upon tlie return of an Hahaw
Corpus, his lonlship, the earl of Dauihy» mm
brought up anil appeared in the Kiog'tf-hndl
court. The case made a great noiatr ^mk
raised a great expectation what wouhl lio Ihi
issue. His k)rdship, being consBlliil (Ihamh
not of that court) aoiwmd thai h*. ym^ of
opinion tftiat tho court of lUi
ioferior ID jmidictioii to tho
W7J for Ulgk Tfi0ian.
f pirt Mm bou- It Uu dttj« «^cr *ny t^ittir thai
»■' ».'^--* > ■■ "
c«ul<i oot bail their pritumrr, »lter he hftd lieen
elmn^rcl by 9(t«cf»l aiiicles i tVir Ihcy baJ n<»
ntennfi to briii»( tiown the reGtifil« i^li«Nliy to
determine any thing' of the cfttiie ofbiscom-
t)iU|ii«nt ; ami, fur uughl that thi?y cotiW judi*
tiatty LiK)iT, li« miff lit be aitAinUil ol'lhi; Ireat-
«^n/ Jt in certain that the loni Jcirhc#, titeu
chf<f jijfltir«t ia court, refiiMwiiti aimI y«t he
wif a gwal alinTr Ufi ot the (Hiiot» ii» ortior to
fpain thaolticrjiiitii^ to oouutenance hi9(then
dctetaml) opinirm fur the buiiin^; YflMi \v»a
tatkHi ili, ft« may be tniichcil tlnenhere. ISo
ttw LtirtK wercs im4 liaiM at that time. lint,
hi tlif nyisfii of kiii^ «)am<'« it, they were f«el
Im^ Ami (With the petir«< (if nil fin-itiA) I think
▼fiyJMtly; Tor it ma ^ iiY|u«*ticc to
Md mill in |irtw>n p€r<1 . i ; ut miv triiU,
orriofrtme lor hliftty : bimI^ it the ^ivins? it
fru irro^iilnr, it wDi erring' Tor jUHtice ; anti
ona wotiU\ think ihntnuch conMteiitiCMi luijurU
i>urg^<? the irri't^nttarity. But ttotyog iMth ct er
MOD intd a^Ainst it,' in piiMi^, yot ; atiil, &o
fkr, all h vrcU. Hit bf^hbtp hft'tl a revelation
in his mtnil, that this 4>ailiii||( i»f lianby w;is a
ttiorti puHhtfil towards him ; thotigh outhiug
IgMi' (if It.
^^^ Whib? the case (yf tlte pari iif Danby Jo*
^Bdcd in pnrliam^ot, ih^re waa a factious
^HuphlH piiblinbud, which ftiattd t4» prove
HKjiMliciitiire of the lorda ftloKWt aover«ign i
\ MNl llMit ail cowtat eedcMMtical as well as
iMnfmndf were mlijeat lo it, and app^lablc ^
tllat the liouau was th^ mo^numconcilitiiDf or
^PKit cmiijcil, to ibe sense of ancient records ;
Hkl, iu iriaU for tre:»i»ii^ ibe pears mere jt)4i{4*h
^^lliii i^miit ; aiifi that there was no other
I^Mfl bat tiM? Hou^e it^lf ; aad that there was
na naad, nay^ it was an naiirpntion U* l)«ve a
Wil ^teivart). For ' r > i , tirnn ilefnawiect of
th« f foiMw uf LonI shoiiki ^aaa aen-
Icoce Ltpoti tiie carl ^ ^m.i '.A hi;* pardon ; aiid
iba Ixirdft jiddreifSf^thc kin^ to a{i|iuintan friirh
ile«';ir«l, in order to the triaJ oi' ^^n^ iin-
1 |Maehm«nts ; and m it was wrAfigfted off ami
Ml tUJ tba aeasitMi eadeil. But bin iordahip
|Mf(olipd b^ ibi* pampblel, but more to nee
Cf ta oiklabc the iawa, and ntriki* 90 bard at
mbiliantf, cofnpoaed an a turner ta that
pamphlet, Hb^wiai^ tliat a U*rA titcward and hia
momtj aa wall mi partiaaiant as oiit cd* it, are
ttiuiPify to the trial of a peer ; aad &b»l the
l>artU laba tha plaoa of parity, ^rnrnmni to
Maifna Cbarla. Bui Iha bw and tha sarMcnoe
tiftlK* caort, aiiil fwt af the piefra; and
ilier, tliat the IHii{^iiiuit Ca^aibuni in I'ar*
a« or tba f taat oatittad ta parliairirni
jfOMly, im tlia peartir* l*«it, nil the
r flf iMIap apd aoab aa tba kifit; sbaald
I airaa m Ibii capaeily, aad tbait Iba
arnmm^ m fmm m parliamani,
I gMii oaancil joaidmlyt and
Hat Mbrallia aaan. am^af laia^paara, tbat
jnaiaditatM, HfMi ia iba bin^a, n^ «%c«a*«d
by ib«p^enifl:«v; and Iba ao«»ai renwina «ii^
^Ibaaapaaitf oTHMiiaBlp; md atiliibka
ioaacituiiMr.*'
A. D. 1678^1685.
im
* ta comitiumcated to the Frmcb mimsteia.**
* To the Articles of Impei\chment of Lord
Danby, as ptibUsbcd in liie Appendix to tkia
** Memoirs lielaiin^; to the impeachment/*
^u. are snbjoini'd the following obseTvationt
on litis Liller;
^' Now let tt be notet!, th^t the Treasttrer'i
Letter to Mr, Monlngn, of the C5ih of Marcb,
ivas writ in that very session, in the besfiunin^
wlierefif (the better to persuade the parTiameiS
that our court did really intend to mflkc a war
against France) he caitsed to be written and
publi<«hed a book^ entitled Christianissimus
Cbri^frandndus; 10 which be renders tha
Ffcor^h kinq^ as h)af*k a^ hell itself. And afW
he had (bv this and ?inch like fallacies) pre-
rntled with the parliament to 4rif e money Ut
mise so ^real a naval and land force to make
nn uctuat war with France (ns the title and
bfHiy tjf the Poll Bdl declares) he doth in that
letter, but live days at\er pa&sing the same, in
a clandestine way, (thoug^h to the violating
the rovitl >^ofd and faith of the nati(»n) laboor
to striate np a peace, and obtain «iich vast suma
(jf money fromi the French king (whom be
thtniijht the terror of our arms would dow
obti'^c to grant any thin^) as he mr}>bt thereby
be enabled to alter and ch:mg^c the legal atid
ancient g-orernment of Engianil, by laying"
aside parlmments (as ill-humoured thmo^s) and.
introdncing' an absninte power by a fixed stand-
ins;' arm)'. How well tuts man hath deserved
of his country^ and whether the justice of the
nation can be satisfied, till he be macte as great
an example in punishment, as be hath beea in
mischief, let all men judge«^*
And in the tiody of the same publication, is
given tht^ thHovimg ExpUnutiun af the £arl
^f Uaoby'8 l^eUer to 31 r, Montagu;
Ax ExPLA^tATION Of THE EaRL Of DjUIDT^a
hervm to Mr, MoTTAOif.
** I And so matiy misconatruclions mada oT i
ihb rarl ot Duiiby^s Letter to Mr. MoniaffiH
ihit king's laU^ ambaKador in France, daled
the 26th of ihlfkrch 1678, that I could not but
in common justice, give the worki those trua
explanations of it, which must needii salialj
the miaU«i of any, (who have no other lha«
pnUic «leKigna) that tliere coald be no %IU
ifieainng to the nation by that letter, had it
not boea written by the king^s command iipaa
Iba subject of Peace and War, wliereiu bia
mj^'»ty ahnie ia at all t\ines sole jud^e, and
oui^tit to be oba)^ not only by aoy of bia mi*
a4«ters of ilata, but by all hui subjects.
'* In Iba fifal place the letter ahewa« That
what waa aeol by Itie aarl, waa but a copy of
ibaaa pffopaaala wbiob are canaentad lo an tba, J
part of tbe caniidara»aa» aad aeat at tba mum ]
tiaae by Mr. Soctolary CcMrcatry; ai» ibai it
appaara, the sabfeoi nMHtar of Ibe propaaali
waa BOl only knofin la tba aaeretatiaa, bol ap*
pratad by tb# n.^ af tlia ooyncil; and tbe lat-
lariUaa shews the reaaon, why foil fhroction
waa tigi then given by the secretary to con-
619]
I JAM£S ir. Proceedings against Thomas Earl ofDanhy^ [620
Upon reading these Letten, it Tias iinmc-
cliatelv resolud, That there Mas suCicit'nt mat*
t«rot impeachment ajj^inst Thomas earl of
elude upon them ; because, although his ma-
jesty at that lime, knew I»y Mr. Godolphin,
that those were tht* prtrpositions upon which
the coutcderatcs would mnke tiie peace if they
could; yet tiie formal ptuvers were not then
coiiie from theiu, which should enable vhe
amix-.ssador in France to perfect the treaty, if
the IVeuch kln:^ should accept it.
*^ At the suuic time, wheu this intimation
was ;:iven to his majesty, of the confederates
dei>irin^r the peace upon those cundiiluns, (and
AS the only means Ictt to save Holland, and tjie
interest of the prince of -Oraice there) it was
also desired of his majesty, that whilst such
formal powers were prcparin;^ to conclude
such a peace, his nuijcsty vtould please in thcur
behalf to find by some uriiato means the hu-
mour of the French Kinsr, whether it were
likely he would accept thofjc propositions when
they should be Oifered to him, as bdicving it
irnit;ht be some disadvanta<;e to the confederates
to propose them, if they should be refused.
" And this was the motive (at their request,
•and at a time, when both (jlhent aud-Iprcs
weru newly taken, and Holland under the ut-
most consternation) that his majesty, to com-
ply wjth them iu a matter which so hi^rhly
concerned their sat^ty, did think fit, for the
nccresy of it, according^ to their desires, to
have the kinii^.of France's mind known pri-
vately, and with all the speed possible, that he
miglit let tue Confederates know the French
IcJDt^'s iotentioits, before they exposed them-
selves to a public offer of what mi<;ht be re-
" 'J'iils is \he true meajiinfj of what is said
about f(.i'Ii»i>r t«ic kiii'X of France's pulse, and
makiii;; or-.e ah^wer u>}»'-' sIjcwcvI io the secre-
tary, ;jrid another to tiu^ l.mtr hiins ;;'; who
eut?r;iv»i::red to send a.i arj.,.iiii iiiio i.yiluLd
of the French kind's an:>\.c.-, as privately and
•peedily as was possible; f.n<l unless the peace
had beon folly completed, (tlio adraritajreous
terms \vhere«)t would iiavd answered r.»r them-
selves) iiis majesty tliou;:^ht it mit^ht be ill re-
sented by the parliament, who could not pre-
sently know, either the earnest re<[uest of the
confederates for the peace, their necessity of
obtaining^ it, their countries beiop^ in a readi-
ness for a revolt, nor the goodness of those
conditions which were demanded, and which
made them unlikely to be (granted; as it is
after warfls expressed in the said letter.
**As to that part of the letter which says,
(In case the; conditions of peace shall be ac-
re]) ted, the kiii!^ ex{>ect5 to have six millions
. of livrus, a year, for three years, from the
time that this agreement shall be signed be-
tween his i.Injesty and the king of France;
because it will probably be two or three years
before the parliament* will bu in liumoiir to
give him any supplies, after the making of
wyr jieace wi|h France) it is io presently fol-
Danby, lord high freasoror of England ; anil
on December tjl, 1678, Articles qiMmpeacb-
mcnt were drawn up and agreed to, and oo
U)ued with this clause, (But if you find the
[leace'will not be accepted, you are not t^
mention the mone^ at all ;) *And so soon tfier
that with this farther clause ; (That . you
believe, this will be the last time that you shall
receive any propositions of a peace ; if tbeie
be njected, as you believe they will ;) that
it cannot he thought to have any ilangerout
meaning in it, nor any great ho|ie8 of getting
the money. But that it may be the mote
fuliy understood, you willtind by Mr. Alontaga'a
lett'.T of the Itith of Jan. 1677-8 which wu
read in the House of Commons, Ibr which I
refer to his lordship's volume, viz. If the king
is ibr a war, you know what to do ; if be
hearkens to their money, be pleased to let me
know what they offer, and I dare answer to get
our master as much again : for BarillonV
orders are to make the market as lowaa he cao.
*^ Now as offers of money had oftim been
maile both by Mr. Montagu, and monsiear
Barillou for a peace upcn French conditkNis,
and six million of livres had becm offered by
Monsieur liarillon for one year ; so, 3Ir.
Montagu having informed the "king that what-
ever Monsieur Barillon should offer, he could
get astpuch atifain, his majesty was resolved
t(» try 31r. l^lontagn's power, in case the
French would consent to the confederatea con-
ditions ; and in addition to Mr. Montagues own
interest in moving the French king to «ve the
six millions for more years than one, bis ma-
jesty thought it might be a good motive, with-
out prejudice to tlie parliament or nation,
(which would have saved their own money
thereby) to say it would probably be two or
three years before the parliament would be in
humour to give him any supplies, after having
made any peace with France.
'* The reason why nothing was to be said
to the secretary concerning tlie money* was
because Mr. Montagu iu a former letter to
the king himself, hs^ desired that he would
acquaint nobody but the earl of Uanby wuh
the business of the money ; so that he Ibond
that employment for the earl, of which fat
thought fit after to accuse h»m.
'* As I hope 1 have sutiiciently explained
those parts of the letter, which are liable to
misconstrnction, viz. Tiic reasons for the
privacy of the negociation, for the sake of th*
confederates : The grounds upon which the
money was expected : The reason why the
earl of Danby was employed in that buiinea
of the money, and why no mention was to be
made of it to the secretary, and the reaaooa
why his majesty would not nave liis parliament
to know it until the conditions had been nerr
fected, (of which his majesty would nift
then been able to have given a reiy good u-
count) or being broken quite off, never
to have been known at all :
** I say having spoke to all thoM
02 J] - fit High Treason^
ileMinlrer ^3 were cAiricil up by sir Henry
C«|>el to ilie Lurdiy where ibej were rouif as
*' 1. That he haiti traitoroasly encroacheil
I must likewise crave liberty to observe to you
thost* parts of the eamti letter, which do Kufli-
cteatty ahew, that his mujesty was DOt in the
least to be (lm\%n trooi the ioterrst of the
confedemtes, tor any private gain of mooey to
himself.
*^ For yon tee the ambassador bad agreed to
ihe nmxt^ but not for no lortg^ a time ; and no
luau can iinngine why six miihons of livrcs
ahouUl have ("'•" ^' ''i-f^d* if either his majesty
iiad hu4t ao} ;t home, or would have
deserted thi^ ivt$. But 05 the cod*
trary, yon see his rnajcsiy would uiiike no j*ro-
IK^Mits, hut what they desired ; nor even those,
without t)€iiig prest by Ihecn to it : nor would
kc have any niotion of mooey to the French
king', unlesti he accepted those very conditious
iu il»*sirffl by the confeilerate«. Aud if the
cui I could have obtained such a peace
As ; d, and his majetty a good sum of
nj< ' ' ngtlio£e charges he had
b* , of his people, i con-
cti^i. j( oii^iu ,,, ,,.,>, Ix-en esteemed good po-
licy, as it hnth iueu in the former iiraes of
lienry 7^ mid Hitiry 8, rather than made a
pretence of treason : But how the not duing
any til' th<N:e thin^irs excepted again&t in that
li<tter, (and th^it phiinly by reaaoo of the Jcing'S
grnftt integrity to the confedemte mteresi,
which he so evidently preferred before his own
jiertKinal advantagc)*ahould become treason, is
Peyond my comprehen!>rion»
*» It lahKewise made n great aggravation of
this letter, that it was dated tive days after
MO act pttssed to raise money J or an actual war
with France : But surely every man knows,
That an net to raise money for a war, it 00 de-
claration of 4he'war.
** That his majesty hath always the sole
power of peace and war in his own bonds.
** That his ministers were never recalled irom
treating the peace at Nimc^uen ; and besides
4>ur then ili- prepared condition for a war, that
of the confederates was thou bo low, that it was
not above a w«ek af^er, that the French pro-
pututionswere made at ^iimegueJ]| upon which
the peacse was concluded; and after which pm-
noiitionit (otthooirh fir worse ones tlian what
bad be«n olfere*! oy his majesty but ten days
before) the Dnich would nei^er think ofvup|)ort-
ing the war any knger. Ami so far waa his
majesty fVom aifreeiog to that peace, which
wn-*^'-- i- - '- "'-:■»-;---;;■■ :/ , :;ii5terBnt
N ;, but his
tit -— ^^^
IU> ay
tv ._ not
P> SO soon
us r ab^iftt-
All' .he en-
dt^ . 4 to con»
tiuuM ike vf4i'.
A.D. 1678— 1«85*
to himtelf Regal Power,* by trciiting in raat^
ter» of peace arid war with foifn n miutsiera
and i^i , aod giving iii^ o hmi
maj«:v J Isadora abroad. <'««*,
"Though a great deal more is to be siid ^
upon this subject, 1 think this enough to con-
vince atty man that nstliis leiccr diil no hartui
nor hindered one step of the prepai-oilous fori
war against France ; so, that it intended no- ]
thing* ill cither to the kingdom, or the cause of j
the confederates^ and thcrefurethe writer of il f
can deserve no blame from this letter, if il hact j
not been written by the king^s command and 1
direction.
*« As I have wondered touch at those j
strained eonstructions I have found upon thiil
letter, so I confess I hare not been nble to givtt \
myself a reason how this letter should only \
tind the hard fate of being loaded with nucti
crimes ; aad yet nothing said to those letters of I
Mr. Montagu's, the ongioals of which wert J
also read iu the House of Commons, which d<l(l
so manifestly give his maj'isty the invituuons I
to expect great sums from F^unoe^ if he would I
endeavour it ; and which does uckuowledgs* 1
this earl to be so great an enemy to France f
above all other men, that it wus grown %,{
maiim to the statei^men there, by one wha 1
very well understofid the state of the kingdom/ ]
That they must destroy bis credit with our^
kii»g, belore they could hope to do any good j
in £ngIaQd.** ' *
• " As Treason,*' says Blackstonc (Comraeo*' I
taries, book 4, chap. 6) '* is the highest civil }
crime, which (considered as a member of th« 1
community) any man can possibly commit, it 1
ought therefore to be the most precisely as*
certained* For if the crime of high treasoi^l
be indeterminate, this alone (says the president,!
MoDlesquieu) is sufiicient to make any govern^
ment degenerate into arbitrary power, [Sp*
L, b, J2, c. 7 ] And yet, by the antient com-
mon law, there was a great latitude left iiijj
the breast of tlie judges, to determine what wa
treason, or not so : whereby the creatures
V' ^ princes had opportunity to creattt]
of constructive treasons; that isg]
to TiJisL-^ by forced and arbitrary constructions^ ^.
offences into the crime and punishment of trea- j
son, which never were suspectt-d to be such^i
Thus the accroachingt or attempting to exer- j
ctke, r*iyal power (a very uncertain charge) vyie
in the S 1st of £dw. a, held to be treason/'
Hit'i " ' XV icke, Chancellor, in his speecll ,
in thi I Airda, Februarv the 13th 174 i^ i
upon loro Carteret's motion, i'hat an humbltfj
ftadrcM be presented to his ftlajesiy to advise I
and heaeecti mm to remove sir HobeH WsIjkiIi
from his presence and councils tor ever {h
Arciibisbnp Seeker's Rejiort oi the Debnte m^T
serted in Cobbett'n P.-xrhamentary H ittory )says, [
*^ Befure the iuw of treason was reduced to mi
certainty, accroach it»g roynt |iower %va§ trca«
son* and every tliuig was caJbd so, and parlicti '
and persons dastroycd one inoibtr under thim^
feSj 1 JAftfUS II.' Proceedings agmmt Tkomm Earl t^Dnnhy^
miMHMlinfrtefliMelollMiefln'etifirgofiCtti?, fiirfinmont ; llMfcti>y immi^xii^ %»
' « pmriiioB Ihst Ihi»
•Ad tlie Kit ef bis ftmjeglY'f cournHI, tigainM
1km «ipi€8i deelar^tbii of \m tn^jcsty and hts
imme. At th»f rale the pfanv«e of ministermt
l^ower will be capsUe of tlie s&me mbuae.'*
"The ejtcellent statute of Trcas<jn»" sa>s
Mr, Liiiters (Consiileraiions on the latr of Hij^h
Treason in the articic qf Levying War, Chap.
^ j/* was derived from ati aoxieiy in the purlia-
ttieot, to ascertain the limits and claims of lor-
feiturea for that crirae. So it appears from a
^lition on the rofts of tlie 2 1st year of the kiu^,
ID %vhich the Commons represent *' That cer-
tain justices hud then lately given judgment in
their courts for treason and accroach uient ot
royal power ; and they pray that it ma^' be
decJared in piiHiamenC, to what cases this ac-
croachioentof royal fjower extended ; whereby
lords lost their profit of the forfeitures of their
tenants^ and the accused their henetit ol'
clerjjy/* The kind's answer to this applica-
tioD was^ ^* Tkat in those case^'^ the points of
•uch treasons and accroachiuents vvere specified
in the judgments themselves." \jt Pari* Ro.
lOa. n 15.1
**Thi5 answer does not seem toliarebeen ssb-
tSsfiictory^ or to hate quieted the uneasiness
and tears of those barons, who thus lost their
•frrilorial profits, or of the subjects at larjfe
It ho were thus exposed to an arbitrary law.
Acccnrdin^ly they addressed the king again for
. a new statute^ compiainiit;^ that men were con-
dimad for IreisQQ upon diai|fet uaknown to
ibttpeo|ile to he su^'h ; as aiip«aj« by the intro-
AiOttQ&totheaatiu tiMparliABaeutroU. [Vm^
Again : *' The foUowiQ|y account of the use of
t^e pi) rase will shew that it i« not applicable to
the modem statp^of the constitution. It is weU
known to persons acquainted with our history,
ttkat the phrase first obtained a place in cri-
minal prticeedliigs, in thnes when the direct
^wer of the crowa was the only sprinc^ of go-
vernment, and when every act of a public D«*
ture proeeeded immediately irom thence ; the
whole o^eooomy of the nation^ as well a« acts
«f slate. The country has seen such times,
and the body ol' the taw ha» been the chief in-
■trtimenl of nreaerv-ing the eflects oi them to
the present clav. The sutucct of this treatise
is one of the lew that can oe S4ud to have out*
li?ed their ffeoeration,
•* We find this phrase, id Tery early times,
m§i^^ l»y stalsawf and sditis i« power
— .„^j.^i_ -negaiiu^ip JiiiMiha Tsry hetero*
Bf. It ■ftdvthoobarg^ against
the 8|»tiiseiai, and jlivtiMt ; aftd
I Wftry thiiig thai eofiii^ tad vtsleooe
ilQ eipraiib To raislflaii tiMi hiog' and
_ i^t <tite by \uA owtt oaliiioi^ to |iro*
cum ■ body of rttiiiiii I9 biad ihMDstive* by
«a4b «i»kbMrfm> l^aliciiaie ii» kiftg%allie*
tioD ffooi h«»fiege voldt^ ■adsMEiaiBiii' wMmrn
I
1 ftri.
» flelcsi andfl
hmsa delitier. V
fiarfiament ;
overthrow the pmvisloB
ately made by his tnajesly and hts pmthtmmA
Ro. 28S.] The 8pensera ivere thereby ac-
cused, ol' cruidint* ilio king in all bin actirmt,
of purchasing estsles by ilifrvai*, ot'
the kin;i^'s anger afftimlhts quesii and
preventing' the noMesand cminsetlurs fmin
visincf the kiu«ff of sviain^ n state prisrivier sad
coiulcniniog him to death, of preveiHiik|^ ihe
king^ trtHii doing justiee with rsapeoi to Ike
Templars' lands, of ifoverDtiig the king bii
couoeil and prebtes« [3 Pari. lio. 366, aod
the Act of Baiiiahioefit, 1 £dw. ;) ] lo tht
case of IVIortimer these wonis meant, to
and fliaplacc ofBceni of the honsrhvhl,
set spies about the king, to take the
of the hands} of his kec^iera and to rtmni
to accuse the earl of Kent in pa;
and bimstlf proeure his death, to
tbe koif bts t» IblUiw the kiikSf into Gj
and take fioat fbr tkcir ewiise, to
Hr^ grants of aslates to htn family,
the king to separate himself Irom th«
[2 ParL fto. 59.] AU these scTeml
We been called in the feoards of the moeid-
ings, accroaching, assaining, or usorfyiog rsjal
power, ILinga of nodera times wotiM nol bi
pleased, to find such flagitious actions madt
peculiar to their station aiid charaoter, aadtKe
perpetrators of them so dignified, ths to ke sc*
cuaed of imitating a kingly conduct. To kii
a deposei] king, to cheiU die kiug's tenants, ts
bring a nobleman to unjust denth, ure eacaomtei
of assuming royal jiowfr hi the foregoing nit
*^ It seems to ba»o been IIm: common mm ol
chaigVB of high treason. A record of 18 Kdn.
% tranacrtb^ in a note pa. 1 67 of 1 Ha). P. C.
appliiM it to the treaion of H«rolay eaii «!
Carlisle, fbf entering into a teagiie to sup
the king of Scots. It has a
addition, for he is accused of mtMmkif
royal powsr aguinst his Hega k»nl, and tbs
peers and proph» of tl»o rsaltEi* lo f 1 B&m,
d. 9 Pari. Ho. 186, iVo, «7* Ml iMottlldCM*
yeiit who hail violetktiy oppresitti nnd Ccopi^
aoned one of the mouli*, urt by btr»noeiiiMlef
takiiMg upon them roy^l {lower witldo diviillliry.
Inthasanteyear fib. p, 198) a petition li>p«rlis»
iDSot, l^om one whom the bishop of £1 ir \im\ m*
detudtirodto imprison, while nftdar tlio kln|^i
proleottsis ckar^ the bishop with (
rayak power agnM^NUr lord tbolniM^
aod dignity, fbo f^Mm wtnw
Bsenbefoiaso tbo fbrndtfcieci oftllo
treassns [In pa. it.] demaiidliig an
tioo of tb<» phrase, is alao of ft Idw, 9/ 11>
impaachmeol of K. Lyons in 50 Miir. $,
(ih. p. 394,) charges hiin with Tafioos aolisC
peculation <, whilr tr<msiirer of tlie mislOm% CPft*
oludii^u* thetn i<> !>r uiiiinm|9tion9 vfmyoJ fiowar,
i< ^^*iied. Ifiikssamf ysar
(li riions fMikkm far ait sat
lOMiako (i i4)io4iy to lay on new* impoailisosi
wttboot oousi*nt of parlisnsanl, theteitj as*
croaching royal power. TUia iioci^M par-
ato]
for High Trtw
A. D, 1S7S— 1085.
[699
\k
iai iii« Atfely ami pmsvrvMioo of hit m^ffty's
king'Jofniismd dornimonft.
*' 2. Tbiit li« haiU tfiilorouftly vuileftvuurc^fl
form of ^o\* anil in-
r^naicnl tiraf^ ot Kriv««raiiipnt ; nil r to
ol*iin army, iipfiii (treteuce ot a W4f a^Hiuitlhe
Fr^'iu'li kiti^, Atid tu couttni^ii tHv smiiv i« a
ilHii(iirisf army %vii|jm tbifs kni;;doui : anti in
army I4kii|<f so I'li^iK and no i%Jtr eiiKuiiitf, «a
net of ijjiHiainent having jmssi?d tdpay and dis-
lifiod tbe same, and a i^reui *>um <tf (tnHr^y
4i, I -i"'^<| ihr ihtttcntl^ fio did contmue Uic
a ry to the Ka>d aiU, mu) tiubiem-
|>i t m ^ni*v i;iM'( t'l^r tlstMlisbandinuf,
., iM-v M,,, , , ,,r -, ,.nhi ;-.'UMd aui ul"
. a rt^L'nuti iK^'.T:-! L;">'«Jat bUmi <jl
tifety tor iUe iHiil |Hir(H>i«, ami i^iltully ue|{-
luvl to take BTcufiiy of ibe |Hiy-inajH«re iif
tbff Aftoy, as th» aaid act rK|uir«d ; %vbi*n^tiy
ticuhr tiDttce, as it was in ibe same i fi^n a«
tbt^ liUilotc, ^^JMvU wa« a|»|dted for on accoiml
of xi^^£ iibuse of the term. It U llitrefore
l)1eaMnj( to f'md tbU inconsiiiteot applicuUoii of
tbe cutiitDon» rejecteit. They upply ttie aamo
]>iirahe, io a petition in 4 Rii' 2, to a i^reat nut
m the corporation of NotHtch^ ai^uinst a party
who bad elected 4 mayor by force. VoL 3» p.
96» n. jO.
'»Tlie CASC of th«i Judijes iq Ibe reii^n
9f Richard the becood coutaiii9 vari^i^ c^i-
amplea of the aume perverse aU^D^e of the
iai*' and Icg-al forms^ fur the worst purpose^i, by
eftch of the parties^ wtu) at differrut lioieii lOi»k
the l*'ad in that disiistrous rci^n. The im-
Iieacbment of archbishop Lauil Mbe
ike tone of exiravai^uticiet in tbi' ibv
•ixth article, ** ihii be traiifKiu-lv **^>*iiiJt:d o
papal and ty rannicat povtcr/' \^it liarc seen
fiOlOetlli"" "^ '• » '^>*'» -M (VLfM*' ..^ '.1-r owo
time, ibc
•overt'!;,.: .1 : , ^^ : tl>IH,
terrorism, t Vc. kave been in tbi^ir
turns* iresf ' is kiiu), charg^4.>d in the
samtf \w>^9 and arbitrary maritHr ; [ ** Adchl^
inujt^tatia criuiine, i|aod imn omnittiu accuf»a-
tjoncm romploAieiitum emi/* The remark df
X*citus OD \he pro«ec^tiona undiT Tiberius.
inoat. lib, ^. a. :ia.] The uulhor^ of wbicU
have tiot tf«ti luort* unpit^t and ahmird, than
tbeir [>redec€««Of lyranta ia English aud Ua-
man h'aiutry.**
lit imxecdi witli (jTrmt aUUty to »|i^x%
Ul# ^jtamibatioQ of a larkty of canc-s to v
exiA^fit oftU^ipiliiy 4ofaiBi«MgmiMMii|H>aj tt^^
iratftH; chftrppft Ua«« Iims cvrwi.. ** Tb« bt-
liJta" iy» ^' ' ^ ^i^ Ixcaaoo iw ibcy ura
erfbd) igai< uir Wrd boMey iBxkuUd m
euriPiia nii^^..* , /., ;ti# «Dd of 29 cbarg«a «f
scJhnii«iaf siobitioiiM hke adultery a* uimaciim
ibcrvia an trgohm mt^timi to the dig'nity tuy^,^^
Ha aolial lUao U)c amtb attick m «:b»nc«
1 trcMititMip l^iuJ, »4:c ^ui. 3, p. aSTy of
XL
the said law h eluded, and ib« army It yt|
coriHiiued, tu the great dan^rr and uunc^f'^j
^ary cbari^^G of bia luiyeaty and ihe vvk
kmi^doin.
** 3. Tbtit he trailoiouitly intendiiijj and (i«
siipnitit; tu atietiali; llir heiirt!< imd uftrctiuni^ {
lua mnjtslyS ^ood imbjccis trom bis royal pei^
soo and g^overnmrni, and to hinder the ii}««t«l
Ui^H of pariiamentai and to deprive hi» sacr^
tnHJe^ty ot their !tatt? and nholNome coiiusetf
tiud thereby to alter the couNiiiution of ihe j^^o-
iLTDmeot of this king^dom, did propoae and
ncifoliate a peace lc»r the French kinid upon
tennf dii^adtauiiigcous tu ilii* ioieroKt of hia
mujeaty and bii» kmi^doma; lor the dmn^
\% hi reof» be did endeavour to procure a ^riui
»imi ot^ niouey trom I be French kin^^^ tui eu-
al>hn;{ htm lo uiuiTitam and caiTy on Uh i^n\d
traiteroua de«igu» ami pnipoH<f», to the ba4ard
ofbiiDiiueaty*apcnion and ^ovcrnnjent.
♦* 4. Tliai be i« Popisbly iitiVettil, and hatli.
traitorouily concealed (ntler be had nolice) t\^^
late horrid and bloody t'lot and coriapimc/^
contrivetl by the I'upitt^ i|fainat hi% nitijeaty'a
p«riiOo and govern men t ; and bath kupijreattcd
the evidence, and rrproacblully diMcunnie*
nuticr'sd the knij^'^i witnei^ea tu the di*»coveiy
ol ii in favour of Ponery, immediately tendinis
to the destruction of the kin|('B Kocicd perNOo^
and the Hubversion of the Froteataut Hch^toa*
*'^. That be tiuib Halted lh« km|£^a treft*
aure, by i&»uin|( out of bia majetity 'a exchequer
i^eieral briLncbe* ot bia revenue for unueceiivary
li^nsiona ^uii aecret iervic4% to the value of
ti91,60'i/, wiihiti turn year* i and that be hatb
^holiy diverted out of the known method ai)<l
^ovirrmiient of the eiccheqiier one whole brancU
of big majeiity*a revenue to private uaea^ with-
out any uccfmnt to be made ot it to hii ma^vaty
in km tt%vk%^[iier ; contrary to the exprmt Act
of r^ which granted the ■ am e ; and
tie Ik < d two oi hia uiaje^iy'tt commu-
«oucr.v <M m;ji part of ihtt revem*e» li^r rtl'uwii^
to couKcut to auch bia unvvarratj table act tuna
therejA|aiul tu advance mon«y ujiou tbftt br«ii^
of tbip rtvtoue tor private uiev.
** 0. That he haOti by njdtrect meimt prpciir«it
from his miije>4y to buuAitl divtrt cootidttniM
glib and grauta of inherilaocc of th« aDci#Dt
rcfif'fuie oJ the eru«rn» evca ooulrary to acta of
parhain^ul.
** For which mattem ami iUmg^nih^ ktiighlflt
ciii/ens and burgexica of the eonutiODa in pitr-
h;fiiMO)t, do, ill the tiau^ ol thcmaelvra and of
■U ttie cotiuitocia of KogUnd, imp%*aoh the %m4
tiian caflof Dauby, lord bi^fb trf-aaiirer of
Satidf of bigh y-eaioiif and olhw itmh
iiiiora, mmii^am^mm and dtfwficta, m iLi
aaid artickt ^kmtm^A i and IJM mid 9mamm§
Uy^tAt^iA' - -ugt^tlMWir ''*'"*' -tf
otcxUibi' V tip« kNfM r
ay^uaaiio ....^.^athmeot
ecu t^ »iMl aIs/h* i4 If pUmK to iJ
ItMi aajd 1 boii*4ia e^t I ot t> i
Um pi eiuiata, or «ri
ijMnnt or aiy itaitioii t >
bil4 d, aa tb^ Miaaa iflfmn^mi^ to tb«
1 JAMES 11. Proce£dings egaimt Tkomat Earl of Danby^ [618
'• The second, I think, doth tcarcc nred my
tri'vins^ any answer to U : it beiti(( n(»viini^t Umt
the army wis no mortt raiw^ by mf , than hf
cTcry loitl in thi» House : and'whcwter H io
that station which I hold, must t'crtainly be a
fool, ta desire any thing^ which creau* a whoI of
money, especially so great a one, as the chtrife
of an army muat tiecrssarity and iriim«db(r)r
produce. 'And for one part of ihc Article
conccroing the pay roaster of the army, it i* iti
fact otherwise; for security from the p*y-
master has Keen taken in the sum of 400,000/.
*■ The third is of the san^e nature with the
first, and comes from the same foand«lion|
which is, what a gentleman had thotiirbt fit to
produce to the HoUvSe of Commons, 1 wiU not
now censure bis action, I think it wilJ M
eootijjh for itself; 1 will only say, thai *l»
though I take it for one of the {p'eatest m!«for*
tune;) which can befal a man, to lie under such
a charge of the House of Cunimons, yet I
would much sooner chute to he under tliat an*
happiness, than under his circumstances.
** The fbtjrth Aiticle is not oidy false hi etery
part of it, but rt is imt possible to beheve it true,
vMihout my beings the greatest fool on earth, «•
well as the blai^kest viUain. For w ere I cupa^
htc of such a wicketlness, yet the more wicked
any man is, the more he is carried to his own
interest; and is it possible any thing under
heaven can ng^ree less with my interest, thao
the destruction of this king? tan 1 ytmiUj
hope to l>€ heller than 1 ara? Afkii is itooi
apparent, that there is not Ofje iii«ii Ufii^,
whose happiness depends so much a«mioe ii|ioa
the preservation of his |>erson.
** My Lonls, I know there is r»ot a nrwin in tht
world/ihat can in Tiis heart think me ^dty
of that part of the article, if I should niy no*
thing to it. But besides, I was bo hr from
concealing' this hellish plot, that it is iKXort*
oiisly known, his majesty sent me first ootiet
of it, to|feiher with forty-three heads of tbt
informatioo, before I knew a syllable of it
from any body else: And it hath been ownad
at the bar of the House of Commons by him
(from whom only I had the intclligeore) tb&t
he hafi all the encourdgemeni and dispatrh
from me that I could give him. Ik^ides, when
it was disclosed to the council- boa rd^ he tokl
some of the clerks of the council, (as he hid
done medii^ers times before) that it would hatt
been much better, and mors would hate h<?ea
discovered, if it had been longer kept prttate.
Besides this, 1 had the fortune tu be particu-
larly iostrumental in se'xintr Mr, CJolemAti's
papers, without which care mere had not otvt
of them appeared* Hod cotiitfpieTjt'* *^f^-"*
and most material evidence w biclt
plot, hud been wholly wantmg^. Au.; ;
this is the first ttine ihal any uian was
to he the concealer of tlnil plut^ wh^
hath been a principal means of procurittg
discovery.
** For that part of the *
am iVpishly afTected, I tlm
contrary is ig kuowii to %\\ ibo Yvottd, tb«l (
9
erz]
' ppoceedinifs of partiaonent) shall ref[uire ; do
pray* that the said Thurnas eurl of D«nby may
te pnt to answer all and every the premises ;
'ihtit such proceed i(i{^s, trial, examinations and
judi;menfs» may he upon them» and every one
of them had and used, as shall be agre<^able to
\)\*w and ju!iiice; and that he may be secpies-
jered from parliament, and Jorthwith comruitted
to satis custody.''
As soon as the Articles were read,
The Earl of Danb}f spake as follows :
** My l^>rds,
«* I h«»pe you wiil not enter ujion any other
business, before you have pven that liberty to
liie, which is the* privilt-g-e of every peer, to he
heard upon any uccuHaiion thai is bmught
i ai*^aiiist liim, though of far less moment than
what hath been newly read at^iust myself.
** I coidess I should have heard this charge
' with horror, if the matter of it had been true ;
liul 1 thank liod, I know my inn*K-en*y to be
io ^--reat, that it protects mc from all sonis of
i'ear, but that ortyiojg^ under so bbck a charoc-
ter« af« n^av lie belie veil hy those that cannot
hear my »»efen<'e ; llion^b I have the confi-
dence to think, Ihnt it is not truly be!ieve<l in
the hearts of the greatest part of those thai have
b been informetl aj^ai- st m«,
** I must needs confess, that I thought my-
* ielf the last man in this kin^ilom that should
ever have been in ilanj^er of betn^- accused for
treason, hecau^^e 1 know no man that abhors it
* morPi and that would pursue il more vigorously
than mji self, ag^ainst any that should be g;iiilty
* of it. Nay, U\ such a deg-ree is my detestation
► 6f that crime, that were 1 sure the dearest child
I have were guilty of it, 1 would willingly be
lii£ eieeutioner^
** My lords, 1 know this is not the time forme
io enter lejjidarlv upou my defence, because 1
know your lordships will first order me a copy
4)f my charg^e, and appoint me a lime for my
f indication ; vrhen I doubt not hut to do it to
the full satisfaction of your Icrdships and all
I the world. In the mean lime I will only beg
leave to observe to your lord.ships, that those
Articles in this chiirg:e which can seem to have
mny thing- of ireiison in them, have their answer
•o obvious, that there is very tittle io them
which I nay not be answered by many others as
well as myself, and sou^ of tbetD by every man
* in the kinn-dtmu
*' The first, which is the assuming regal
powf r, I Ci»ufess 1 do not understand ; having-
never in my life done any Ihin^ of great
moment, either at home or relatintf to foreiijii
matters, for %vliich 1 hnve not always had his
majesty's command. Awl althou^ I am far
Sfrimi ha? in If bi^en the most rautious man in
' Iftkinfjr care of my own security, (which per-
tiafifi my g-rent innocence hath lieen the cause
nf) yv\ I havtf not been so wnntin^j fd'i**)muiou
prudence, as im the moRt material thhic^ not to
bftVf* had his nkflp'»«iy^s orders and dueciions
|l]||d«r his own hand, and particularly fur the
^ *mtd€ use of agmtost me.
I
I
(J9] ^ High Trmu<m*
^ <if those ibtt ruled a^ioit me, dlil own
llieir kn«wl^<lifeof ibp fMlmly of ihni nUetratlon ;
and I hope [ haic through my whole life
Ifiven to good testimony of my religion, txith
in my own larnity, and by my tpri-ices to the
church f (whf never it huth lam m ray power)
that [ shall not need much vlndicatton in that
particular : And I hope vourlurdiihips will Ibr-
fiveniemy weakoess, m l«lliug- you, that I
9Te a youDj^r fiOQ in the House <j'f Com nianii,
whom I ihal) love the better as lon^ as I live,
for moving to have that part of the article to
stand sgaioBl me, that by that pattern it might
app(^ar, with ^'hat sort of zeal the whole hath
bt!«!n curricfl to my prt^jiKhce,
** The 6l\li Article will upon examination,
appear to he as ill i^rounded as any of the rest;
and I am sorry I am able to give one reason,,
which iSf that I have known no treasure in
any time lo waste, baring entered upon
•n empty treasury, and ne?cr seen one
farthing ipveu to his majesty (in almost six
years) that hath not been appropriated to par-
ticular uses, and strictly so applied by me, aa
the acta have directed. And there hath not
been one of those ai^ls, which, instead of giving
the kin^ money, hnih not co»t him more out of
hit o^vn piin^e, to the same tisea, as doth appear
by the larger dituen&ious of the new ships, and
■o in other thing-!* : Insomuch that I take upon
tne the vanity to say, lliat by the payments I
have made to the navy ami seamen, beyond
former times ; the paying off the greatest part
of the debt which was stopped in the exche-
quer before my time ; by my own punctuality
in the course of payments, and by other things,
which I am able to shew, 1 doubt not but to
appear meritorious, inilead of being t^'iminaly
upon that article.
** As to the sixth Article, which mentions
my great gettings, 1 cannot deny but that I
aerve a master, whose goodnesa and bounty
bath been a o^reat deal more to me than 1 have
deserved, ana to whom I can never pay grati-
tude enough by nil the services of iny hfe.
But when the particulars of those gettings
•halt appear, it will be found very cunlrary to
If hat 18 suggested abroad ; and that in near six
yean rime in this great place, I have not got
Lalf that, which many others have got in lesser
places m half that time. And from the exa-
Qiinatiou of this, which i desire may be aeeni
there will arise matter to accuse my prudence,
in not having done for my family what justly I
might, but uotbing (o arraign cither my no-
Dour, luy coQscieucep or my liuthful service to
the crawn.
** Bly tordt,lf my obedience to the king shall
not be my crime. lUuuk nothing else will stick
upon me from x\\^e articles : For my own
beai't tlalta-N me to iM^lievc, thut i have dune
Oiutlung hulas a true protestant, nod a faithful
servant both to my king and cuuntry. Nay, t
•maM cotilKknt, asth^tt now I ^m A tliMt hail
1 t'iiher bcflnapapt»t, or fijr French,
1 had not been now accu,iitHi i > i haTerea-
■0ati»b«lj6ve^that the principal infopuer of
D, 1678—1685. f630
the House of Commoni bath been assisted hf
French advice to this accusation ; and if the
gentleman (Mr. Montague) were aa just to
produceall he knows for me, as he hath been
malicious to shew what may be liable to mm-
const ruction ai^ainst me, or rather agninst the
king, (as indeed it is) no man could vindicate
me more than himself: Under whose hand I
have it toshen^, how great an enemy to France
1 am thought, how much I mi*; ht have had to
have been otherwise, and what he himself
might have had for getting me to take it. But
I do not wonder this gentleman would do m«
no right, when he dues not think lit to do it to
his majesty (upon whom chit-fly this matter
must reHect). Althaugh he knov^s, as will ap-
pear under his hand, that the greatest invita-
tions to his majesty, for havinjj mitney from
France, have been made by himself ; that if
his majesty would have *l>een temjtted for
money, he might have sold towns for as much
as if they had Wen his own, and the money
have been conveyed as privately as he pleased ;
that bis majesty might hare made matches with
France, if be would have consented to g^va
them towns ; and yet, that the king bath
always scorned to yield the meanest village
that Was not agreed to by the Spaniard and
Hollander, That gentleman hath olteo pre-
tended hi»\v much his own interest in France was
diminishcti, onlv'by being thought my friend.
Anil be^idct tfivers other io»tances, I have
under hiK band, to shew the malice of the
French court aguinst me, I sent two of bis let-
ters to the Hou«ie of Commons, which shew
how Monsieur Huuvig'ny was sent hither on
purpose to ruin me ; which I am well assured
at tlus time they would rather see, than of any
one man in England. Besides \« hat that gen-
tleman could Kay of this kinil (if he pleased) I
hope his majesty will give me leave (iu my de*
f«nce) to say in his presence, and in the hear-
ing of divers lords, with whom 1 have the ho-
nour til sit in the committee of foreign affair?,.
that, which were it not true, his majestv must
think me the imnudentest and wortt of men
toatfirra before hun, that ever since I had the
honour to serve his niajesty to this day, I have
delivered it as my constant opinion, thai France
was the worst interest his majesty could em-
brace, and that they were the nation in the^
world from whom I did believe he ©uf^hi to ap
prehend the greatest danj^er ; and who h«
both his person and (^uvernment under the last
degree of contcinpl: For wlucb reason alone
(were there uo otln^r) I would nt^ter advise bit
majesty to trust to their friendship.
'' My lords, it is my greatest hap|»iAes<i, that
your bifdships are my jitd|f(» ; whose u Lsdoni
and justice are so ^eat, that you will
discern the truth of ihc evidence when it \
come- bef«»re you, and in the mean time dk
tin^'uish truly what the criuH^s ai*c (if 1
eoiitd be [trovnl)aitd not what they are if 'i-
For thi» reftjioii this llotisc li;ilh wiseis
I id4Hj to have the special matter Xwi'^My.
to the end they may he outiaficd u
Ml]
chAi^'Ha«*e iU H^hlilennminfttion \ d^r otli^r-
. wise H were lo u<j purpose to rienire tptcitiT
. mailer, unlt^a it w«re to s^ %vliethcr the spe-
cihI matter at!e<lg'f d be vrhatlt is cntlvd. As fnr
example, if a man were accUBed of havihjBf
trait4troj)<il y ps^sed the river in a pair of oar«,
Ibis h 6pf>cial matter and Ktiled treason, by
inserting t be ivord trailer oust y; yet yowr lord-
thips would not iheretbre proceeii afi takintif It
for trvaaoD. fi^olD this case, 1 b£|^ for ull your
lonJ5hi[»s sakes, as ^t'll ua my own, that yott
will please to use that caution \vhich \^ill be
reces^sary for aU your Tordsbips gafely and
Beets in tbia House : For 1 beseech yottr lord-
fibips to consider, wbillier socU a pretK^dent
may go bereatter ? What the House of Com-
utims may do to such a case, there is no qups<
lion but his majesty roay do the same by his
attorney ; and what either of them may di>
Hg^aititit one lord, tbey may do ag-ainat more
(and we have seen it done in our days against
all the bisbopa at once). ^Vere it not very pre-
carionnly then that your lordships bokf your
aeata here, when by tiiber of these y^ny s as
niaoy of your fordsnips^ as for a time it mi|rht
be convenient to remove, ahonld be at the
mercy of bating^ a thing called treaj^on, whether
it be so or no.
** Truly, my lonls I have reason to believe,
that in ttie House uf Commons the matter erf"
my charge (0^ proveil) was not tbmight to
amouDl to treason, either by Htatnte or common
law ; and I hope your lordRhi[i« hate Irw* sad
Mm example iti yoiir raemory, ever lo assiiit the
making of treason by accutnolution.
** 1 ^lould therefore not only wrong my own
IflBOeefice, but the right of the peers^ to submit
loaoswer matters of misdemeanor, as a cri-
tDtnal in treassion.
** My lords, I wonder not at the tnaliciona
proaecution of those who wmdd have me taken
for what they truly are. For I am well as-
sured, that tieither the French take me tn be of
their interest, nor the Papists lo be of their re*
}igioa: But I am troubled to full under so
severe a eeasure of the House of Commona,
ahboa^h 1 cannot blame Oiem, but my ac-
cusers, who have so vf rongfidly inft»rme<rtbem,
'* My lords, 1 niH conchjde wiLb t^iis rom-
fort, that 1 do not in the least appreiiend the
matter of my charge, under the secirriry of
your lordships'* J utitice ; and will therefore
lrt>able your lordships no lonir-r it this time,
but only to pray your diretlio r\ am
to withdraw, which I shall re i
\Vbi*n the iiarl bad ended liit^ speech, a
ureal debate ari>»e, mi the qaefitton, Whether
Ibe Imuf^chment should li« received as an
I m pe^t c h meat u( H ig h Treason only, because
Ake Commons bad added lite word High-Tren-
l^lniiuitif Jt was fniil, the utmost that could
be made of it, was to suppose it true. But
even in tb)»t c;i?*e, they mu»<t neeiia 6ay plainly
ihat rt 1. .*= -tot wuino the Statutr. ' To this
it ^' xd, Thtt the House of Commons
ihtit ^ ;. lip the Impeaehmiof, were to
h « to twn points, vi^. to the Datura o4 lb€
1 JAMES It Proc.eedingi against Thumas Earl qfDanbi/.
crime ; anil the trial of it. Bwt the lords
not take upon them to jf*'''-^ "* vHberof thest,
till ilipy heard what il us c*ould offer
to support the chftt-. . j. wrre bound
therefore lo receive the charge, and lo proceed
according to the rules of purliatnenl, w hirh was
to conmut the j»er^on, so ini[»ea«*hed, and then
give a short tlay for his trial. Ho it would soon
be oi^er, if ihe Conimona rould not prove tba
matter charged to be High-Treason.
The debnie was carried on with mnch heal
on both sides, and, among Ihe Speakers on
this occafion, was the earl of Canmrvon, a lord
who is saitl never tn have spoken before rn that
House; who, having been heateil with wine,
ami more excited to display his abiHties by tba
duke of Buckingham, (who meant no favour
to the Ti-casurer, bttt only ridicule) was re-
(tolved, before he went up, to speak upoti aoy
subject that should offer itself Accordingly
be stood up, and delivered himself to tfui
eflect r
*' My Lords; 1 understand foot little of
Latin but a good deal of Euglrab, and not a
liUlc of the English history, fVotn which i
have leaitit the raischjefs of such kind of pro*
secutions asi tliese, and the ill fate of the pro*
rsecutors. I could bring many instances, and
those aotient ; but, my lords, 1 aliaU gft mi
farthei' b^rk than the latter end of i^ueeti Eltza*^
beth*8 itigo: at uhieh time the earl of E^rx
was run down by sir Waiter Rawbeigh
loitl Bacon he ran down sir Waltef Rawl
and your lordships know wi»at became of
k»rd Bacon, The duke of Buckingham, lie
ran down my lord Bacon, and j-otir 1oMl«bint
know what happened to the duke ol' 1
ham. Sir Thomas Weniwortb, ui
earl of Siraffurd, rauHown the ili ids-
ingham, and you all know what L* iiiai<
8ir Harry Vane, he ran dowottie earl orSbairor^,
and yonr lonfships know what became
air Harry Vane. Chancellor FT
dowTi sir'HaiTy Vane, and ytmr 1
whatbacame of the cbaucellor. >>iv 1 hi
Osborne, now caH of Dauby, ran donii Cban^
cellor Hyde ; but what will become of tHe call
of Daoby, your lordships be>it can tdU BttI
let me dee tSat man that dare t*un ttre caH «f
Dan by down, and we sliall soon aec wbat will
become of him*."
* It has already been noticed, f8ee a note to
vol. 8, p. 127) thut ArVrngtoo, " ani
Osborne, who had nil been moM ^ iTvdil
bnter in the attack uimu C laren«l r htif
turns, became the objects of ^^-^ u^
Mr. Hatsett (4 Free. SH) relates fioui Am*
brose PhilUps's Life of Archbishop WiUtaaisa
curious anecdote "
dcm nation of Ion!
Case^ vok 9, p. ii«^>.
ni*J€irty king Jumef ;
keeper Williams, and
j he would not liave In
criftce/ — ♦ 8(r,' says li , - , II
attempted atuougat tny aurt^ct fheuda, lo Iffiof
i
I
losses
m
Jqt H^h Treason.
I This beincT f^ronrtiinccil wUli ^ rcwiarkiMe
lionioiir ind tcMje, i' ' V "^ Huckingiiam,
•bith 8\irpriso<l ami tl, otUr In* way,
cried out, *• Tlip mivn in i = .^|Kre(J I and claret
["hiis done the biisities^.*'— T)»e itiujunty, how.
(fksulcithe^Deraland ti^uc Defence winch
upon this occaBiipn lord Dntiliy made in the
llovine of lords, he was defended tVom the
j>re«i in a pamphlet iutidcd, '• A LnUer to a
K ember of Uie House <*f Cammotis ;'* or (as
appear*) •» An Imj^arlhii State of the Cas«
'the KrtHof Danby.*' In ftni^wer lo ihis
as published^ ** An Examioafion of the
toarl of Daaby't Case*'* Tliis gave rise to
•■ Thv' Earl of Danby's Answer to the Exa-
miner/* which brought forth ** Sir R. How-
ard V Account of the Slate of his Majesty *s
Bcvciiue as it wta left by ilie EaH o( Danby
^jMt Lady- Day 1679 '/* ftod Uial produce«1
' Wfn off fairly ; all shrink and refuse me. — ^Orily
Ihe ottnit and prudent iont Hidles adventured
tipon tiie fruwn« of the prince and duke, and
gjive liis reasons, why hiidiilesex apj>eared lo
lie innocent*—! were mad, if , for ray part, I
iViould not wish hirti lo escape this tempest, and
be «afe under the harbour of your majc^ty^ii
cl^mencv — IV hen 1 deliberate upon hinu I
think of^ myself — 'Tjt« liis foriime lo-ilay, 'eis
mine lo- morrow, — The arrow that hit?j him, is
within an handful of me. Yet, Sir, I iiiuftt
deal faith fid ly — Your sou, the prince^ h the
main champion that encounters the treasurer;
wh<Hn» if you save, you foil yimr son — ^For,
thoui;1i matlert are c«rr»e*l by*il»e \¥\wU* rote
of parlianteni, and are driven nu by the duke,
^gtthey tlial walk in Wcsiminsler Hall, call
L^pt, ^*The princess undertaking;" whom
NRo will hlait in his bud« m the opinion of all
r yi>«r unhjectK if you iuflVr not your old, and
perhaps, runiK?eiit servant, to be phirkett from
llie B*incluary of your mercy — necessity must
exmse you from inconifiiaticy or erueltv.'
So, with these re»i"' * ■ '- 'rn^ was perKuaded
to yield to the h< opovtunkties of \ih
parliament, and tlu ,.^,. ,.,. t ivn?> drj»09ed, and
(tne*! I/iOOi. and cnmmiited to the Tower/- —
Within a few month<« after ihis eonver&ation,
the lord kceper*>t prt»pliecy was fuUilled ; for
' the iuHuence ot the hUtne duke of Buckinj;'-
he himself w&% reujoved from ihe office
:|i>nl keeper, and retired from eourt to hi?<t
\ce at Bu^^den, in ditt^race* He wo» al that
ke only Ui-^hini of Lmeeln,'*
ee ahoji 1 'on of the duke of Whar-
I (in Wta »>| iV 15th t72il, in bishop
icrbury^f ,cuse tn xiuh Cullectiou) that bills
^AUaiudtt like HiAyphuH^t* ittjiMie have Ire-
Nilly roUed baek u|ion thoac Hho W€re the
H' pi-ouioters of tbem .
A- D, leVS— 16S5. f6S4
•* The Earl of Danby *« Answer to Sir Ro'^
bert Howard/' The merits of the Charges
against Lord Danby were not didcuaseti wit^t
any minuteness in Parliament, these Articletf
are therefore here inserted, as affording' the
best represcniaiion of the fiicta and argtN
nienls by which the attack upon him wiw
enforced and re&i&ted.]
A LETTER TO a MEMBER of the HOUSE
Of COMMONS: Or an ImfaRtial^ate
or THE CASE OF THE Earl Of DANBY%
Written in the Year 16T9.
Sir; Had you been a roember of the 1a«t
parliament, you could not have been su t^^reat
a stranger to the earl of Danby as V jierceive
you are, his lordship havinij lonj^ been a iiieni^
her of that House, and in very great eslocna
ilierc ; But since yon arc pleased to aay you
know him not, and are in gieat doubts whitilo
Mie? e of him, fiuding s<i many stories eoalra-
dieting one another, and such an extraur-
dinary violence in soiDe meu, as. makes you
suspect whether nialiee may not liave too ij^neat
a share in his prosecutioa ; And tturt you hatm
so (jotwl an opinion of me, as to believe what i
shall &ay ; I do assure you I shall be as takh>
fill to you, in relating nothing: but wha4 you
may depend upon for certain truth.
'The said earl after a faithful di^iarge of
his trust as Treasurer of the Navy ; Inkli la
the satisfaction of his majesty, and io the g^reat
content of the leameo, about Midsummer 1673^
had the honour cooferr* d upon him of Lord
Hi^h Treasurer of Ku£;Uud; which he ma-
naged with so great (irudeuce and suc4)«$s, that
contrary to all men*s exweiatiims, but especi-
ally of his enemies, (aho asRUrtxl them^lvev
of Vis immediate ruiu by that preferment.) Hq
supported for near six years that conitition •f
his master, wbidi it %vaa not tl«en thought
Qiiuld hav^ been maile to suhsiiit so many
months and wiiboul any supplier fir bunletic
bid 11' M r pie in all that lime ^ Whereat
it is V I, thai 110 year passed bei<n«
his aiinnTii>ti.i.i<iti in the treasury, that did not j
cost the pe«>ple five, ten, or twelve huudre4
thousiuul pounds, and sometimes double tho«« '
sums.
Jt was not without great reason that thii
lord's ill-willers did then a»»ore thettiseUrs of]
his downfal; be«*ause of the imprubability i^l
hii perfrntniug those great works, whicb wert ^
at that time u|>on his hand, with fo small ^
stock as was then lilt hiin lo work wit'
And the couftdenoe they miyht reasonably ^
theiUHelves that Ue could liave no ntUef by ere*!
ihi, which hail newly recetveit the loi^si latal'j
blow that was ^ver given to it in any king-
dmii*
S(»on afker that time a peace was concluded
with the Dutch, afler a long and chari^eabk
flS5]
1 JAMES II* Proeeedingi agamsi T%omas Earl ofDanhy^
frar, and ihe gTFai«»t fleet that «vrr yet Uub
kiDiXtJoTn liad was tlieti to Uf paid off; as also
an army which hrid be^n rni&ed for the aaid
war ; whicli U»^etti^r amounled to about
SOOtOOU/* to diiichar^e b<Uh, as will appear by
those accom |>t$ ; and there renmincd fur that
use not mm;h iibnvc; 4()0,000A of the laiit
l,QOO«000/.nliit:li had hetfn given to bis ma-
jentv hy iiL*! of parliam^iU a&nit a year liefbrt:
this lord^s entrance ti> the trt^asury ; and that
remainder was iip-oti ibe fourth, lilrh ami six
quarters of that iax\ which were tht^n to come,
and c^jnsequently of no use fi>r present pay-
roents of ihe said 3eet and army, but only as
money could be borrowed alter aucb a breach
ofcreilit as aforesaid.
Notwithstandinief all which difficuhiesi and
the endeavuursi of some envious men to muke
that ill time of credit yet worse to this Lnrd, he
did nut only pay off that whole Heet and armj'i
but d I sehari^ed the seamen of ibat Heel with
ready money ; which had norer lieen duue
before htit with titkets, or part tickets, aod
part money. And w hereuK it had been nsual
to have ships lie undischarged two, three, or
focir niooihs after the times thry fehoiild he
paid oif ; it cannr»t Ije said, until within a month
or si^ week!) Iiefore this Lord^s quittini^ bis
place, that any ship did lie unpaid a week aJter
the books belon^ing^ to the said ship were
ready ; and then there were not above one ship
or two, which happened so by an accident , the
money hamg lieen assigned hy \m lordship to
thai use in due time.
• This lord (tintil money was an^ainst \m will
* divcjled out of the kind's re?enue to the pay -
tneiit of an army raised by tlie parliament) did
not only provide for tite necessary, and public
^xpences of the kingdom in bis o\* n lime ; hut
did discharge the yanis, which were in arrear
at the titne of bis receivin'j^ the staff, to the sum
of 05,0OU/. and upwards. He did tbe same to
Tan 0:1 er, to the sum of 43,000^, and upwards ;
and in old tickets^ and to sick and woumied
men, to tbe sum of 93,000/. and upwards,
all incurred before bis lordships time. Many
^eat arrears of the boiifihold were also dis-
cbarg'ed by thi;: lord« to tbe sum pf 79,000/. or
thereabouts. And althoug-b there was a sus-
pension for part of the housboU] for one year
in his time \ yet notwithstanding the fi^reat
necesaitv of the crown, tlial also was satusficd
by bis lordship, long before his leafing his
employment.
But thai which is worthy of as great honour
to his lordship, us it ought to be of infamy to
the Huthurs of thai unjust action, is^ that by
this lord^s care a satistactitju was given to
many staining orphans and creditors, who bad
been put in that condition by the slop of tbe
exchequer, to i he sum of i,'J00aKX»/. or tbere-
ttbouts; ;ind this be did at a time when the
crown ivas not only in w.-int, but when the par-
bament had never contributed one farthing to-
wonts it; whereas tbt^sf j[)eople had l>fen de-
privetl aad robbed of their estates ami liveb-
b«4Mity Icut tv bis aiajcfty, ia tioics id ben ibe
[^9
.iiper-^
la de- I
exchequer had been as much titled with super
6uity of aids front pnrlument, as it was de
prived of nei%satary su)iphes in this lord's iniie.
Bositles these ev|>encr& at homtr, titere hs^i*
pened in this brnPs time almoM ti con-
with Alf/ters (from whence a*$iO tli
o»ce miiLe a Kital reilemtition of our r^njjftsi
slufes), and a rebellion in VirifMiia ; winch wtv!
holh \ery chargeable iti tlie expeoce > ' ' 1
bititi been a great abatement to thut <
hie part of the customs uhittij iii bnm
tobacco from those parts : uhoiiiu<:U, i
ever is said of this lord's not having
the treasure to public uses, mu^t een :
c^ed either from grt*at malice, or w.si
tuformation r as truly 1 believe it doiii wuii
tnust men*
1 offer not here to say any thiii|f in v indict
tion of tbiii lord, which need* private teaiti moo j
to make it good ; because all I hope for fruia
the present agt- (ittbalcuii he hud) is, *T*Ual (licy
will admii wliat their own eyes may beVitnna
to, if ihey pleatie ; and therefore, as I biive toid
you what lliis lord hath done uptm record in bis
employment, Jis lord treasurer, witlmot aiiv ai-
si^tance of parliaments so I shall remmJyuO
what upon record be hath wanted to serve the
crown withal, whirh his predecessors did re-
ceive ye-arly into bis majesty's iretisury ; vi*.
By a great abatement by tJie corn 41 1, wkicb
did not for some years take less than three
score thousand {>ouuds a year from tlie cus-
toms: By the act for probibiiing the Frentb
commodities, which hath not lust lesi9» tbau
150,000/, a year from the said revetiue ; l»e-
sideti tbe inconvenient maiuu^r of re|myiDaii
of the 200,000/* borrow ed oti the excise, by
one fif^h thereof being depositetl in the ex«
chequer, which might have been repaid wtih
much le6.s charge and prfjuilice to hts ma-
jesty's affairs ; and besides ihe Ahbtemeot of
16,000/L of their tax to tbe city of Lomlun,
and the foi^ivencss of their lieaitlt money,
i!kc. to tbe town of Northampton for ae venal,
years j and many other thiug-i of that )fXxA\
ainong'st which, I doubt uot but his kuid-'
nesaes to tJic city of London, upon difei«
other occasions, besides tlie abatement of the^l
tax aforesaid, must be acknowledget! ; as in
the disputes altout the water bailiff, Hiangct-
ford Market, Sec,
As this lord's care was ?ery gi^eat tn see
money applied to the most public uses, (as irill
appear by the weekly certificates in the exrbe*
quer ; to which 1 «lo appesl) and from whicll
public uses, he never diverted orn- pr : • ihai
was so appropriated (not w ithsta ri taiiy
false suggestions to the contrary) ii- . u> «o
less induMtrious in the unprovemeoi td bin u»a*
jeaty's revenue, the great brancbeii whru ii{'bi#
found in this state ; viz* The <exci
farmed for live hundred and thirty r ^5
pounds a year f(ir three ytMi> I hen tn
which he ordered so to his nuijt-^ty S ndvn
that be found uiran*$ to n*-' ' imi,
and to let it innmediututy f .oos,
and for the same liuie, for ii^t huutJUal i»i
I
fit High Treason,
Bf\y thou in nt) poiinrls per anniitn ; and it the
^jnrat'ion til' that tiriir, his loriti^bip so mauaged
it iK^iween a farm and a comiuisiiioD, as ilid pro-
duce aliove (iUU,DliO/. a year, uiiUl a reduce-
nie*nt wns luadt: in that revfO'U*'> of b<?lv*ixt
forty and Htty ilitjustiiid pounds a y«ir> by
Ihe pfyliibitmii ol tirandy» ice*
llie hearth-money, his lordship found
Tallied at 145»000/.' a y^ar ; which was
jmpnived hy bis Iprdshsp to 162,000^ jjer
atititim. And the custuras wauM nut have
tnrned to any woi-xe aeeount in propurliim^
bad it not Ih^'u for the hindrances I have meo-
ti«»nfd, M' t!ve Corn -act, Prohibition act, tlie
nrbelljtni in Virginia, Jkc. And in Irelund, hia
lord«lii|i also rais<>rl tlie revenue there, from
190,0tKi/. 10 'i40,000/* perannnm ; iniMJniuth,
that in the branches of the Ejfciseand Hearth-
money ait*ne, and in the Irish revtnne, his
brdsliip increased ISf^OOO/. to bis majesty ^s
in come.
It is hkewise observable, that, tiotwithsland-
ifiif the ^rt'at shocks nev% ty given to credit, this
lord did tery rarely pay more than eight per
rent, for money bcjrrowed j and it will appear,
that he lound very little that did not cost hit
inajesty ten per cent, at hi« entrance,
fits Lordship, not havings wherewithal to sa-
lUfy all thin^H, did cbiise to let it fall short in
p^iisionK, mid lesser payments to priv«te per-
60ni), rather than that the piihhc sfionld tvant,
so far as he was able lo supply it. And yet I
dure take upon me, by proof in the exchequer,
to aver, thdt even thoiie puyments were much
belter made than they Imd been at any time
l^efore^ witliin the same space that this lord was
treasurer, as mny appear hkewise by the cer-
tificates of the exchequer,
Nf xt to the not huyiuij the manaijement of
this lord truly refiresenied to the world, I tind
his ser vires bate been chiefly blasted with a
false su^i^^estton of hi)i squandering the king^s
ti-easiire to private and uonecessary uses, under
the name of Necret Service. And therefore, tor
the more rendy and certain way of disabusing
the world in that partieuliir, and doinaf his ma-
jesty, as well this lord, right therein, I shall
(Jesrre any man to tnke a coniputation of bis
maje*it))s yearly revenue (which, within a
\ery little^ is known to most men) and when he
has Slimmed up, what hath been publicly ac-
con^pled tor euLh. year (which, by the certifi-
cates of lire pells, will be found to l>e 8,^7G»767/.
fn Mil 1l aster, 1673, to March, 1679, besides the
interest to the goldsmiths, and divers other par-
ticiilai^, v^hich are not included in that nc-
compt 0 let him compute wliat ibeie could
be remaininjT piissible, to be laid out to other
iise«f and be will tind, that if all that iaus the
poiisjible lemaiuder had been laid out extra-
laganlly, it would be a very inconsiderable
iuni, iu'comiMnsoQ of what llie world is made
to believe.
In the next place, it is well known to all,
who are versed m the ways of the Kxchequcr,
that many sums ai'e incluiled in the Privy Heals
' •( uecret serf ice, w hich are dtlier for expedi-
I
1678—1685. [638
tioti of pubfic services upon suddeii occaflionv,
or Jo save iwying of gieater" fees, where bis
majesty is pleaseti to let u l)e so ; us in iht> cu^tt
of the turd treasurer, and chancellor ot ihe tx*
chequer- a ealanes, ^c, (which were so paid
tin btely altered by this lord ;) and I am cou^
tidentthat there is no v par, wherein one tlurd*l
at least, if not half of tW payments under thi
[jrivy seals of secret service, might not lie ax*
posf^ to a public acctvmpt as wtfll as any other
[iiayments.
Am\ whereas it is objected. That |!ijp Bumc
now paid for Secret service, are much greater'
tl»an lormei It, nothing can lie more uutriie ;J
hut the mistake lies in this, that turmerly jf reat
sums were commonly paid to a particular (Ker- <
son by a privy seal for some pubhc use, and
money was commanded from that hand to pri*
vate uses by pariicutar orders and commands,
which were never seen in privy-seals lor secret
(^rvice ; but were discharged by privy seals
atlerwards, upon passing Uieir accounts: Fof
it is well known, that in tive or «ix of the firsi i
years after the king** restoration, there wasjl
more money given to particular pei*»ons ia
every year of tliat tirae, than has bt^n piiid tit 1
private uses in the whole time of ibis lurd'i
being treasurer ; and yet 1 am confident, thalM
scarce one shilling of those great sunn appear j
under any privy seals of secret service ; lo.'
that in truth this which is imputed as a crime, J
was one of the moat useful services this lord'
could do^ to let the king see by a pajticnlar'^
account, what those cxpences came to, which' \
were formerly so hui Idled up, that his majcstj' |
could not be sensible of the greatness of those
disbursements.
Lastly, I dare as con6dently afHrm, tbai-
payments to secret service (that is lo say, such 'I
[layments, whereof his majesty will not per-
mit any accompt to be made but to himselH^
hove never amountetl to 100,CK)t>/. ; nay, f"*-
durst say, not 80,000/. a year, one year withal
another, since this lord served his majesty^ iu J
that empliiyment ; and 1 snjijHiso that none of^l
his subjects do grudge him ^that sum to hit
private use : But upon thi^ occasion, I cannot
tbf;^bear to olwerve the unhappiness of this lord,* I
who suffers in ihe opinion id many for having. I
wasted the king's treasure, to gratify Bom©*]
particidiir great ones ; and I am not without |
good as!)Urance, tliat his refusal to serve such J
end SI, and his tieing tirm to the interest of hir ^
master, and the kingdom, in ithat particular, m
no small cause of his present suffering^.
To conchide this point, about this lord's be-
haviour in hi*= office <d (reasurer, 1 most nced^J
say, t know not whether this hjrd, or we the,
ptnjple of Enghitid,arethe nnwe unhappy, wb<r j
can so easily be drown by talse n»poris, to IiaTcl
tll^ woi!»t opinion of our best iiiiiiisters ; uhetij
the single comparing of this lord's administra-
tion in his employment of lord trL-asurer, witk'
foHuer times of great plenty, niijLjbi convince*,
any man, there never was a betu*r offii er in ^
that station; and to those who will not takej
that pains, I will ap|^al to another sort of evi'
039]
1 JAMES II. Proceedings agaiutt Thomat Eart qfVanly, \QH
[
tlencc from cofiVe bouses thcmseJf ft, v hethcr
the ^ood liusl>andry oflbi^ luid fo^ Ujs master, i
Lath uot beca heretofure (^ud not long sbce)
&S much coiii[d;Lined of, as his wasting the
kin^^s LreoBure is now pretended to be a charge
aj^ainst htm ; oay, even to the making that a
crijiie of ^tatC) and luring it to liis charge at
that tunc, us a design, by pood husbandry, to
keep otfthe usecrt |MkHiameiits.
VVhal 1 have said concemia^ this lord*a ad-
min intration m bis otBce, as h)rd high trea-
tiircr, I have spoken u|Km certaiu knowledge ;
and what 1 shall now aa}' in rdalion to biii
tjransartinns in the afTairs of state, arc partly
lo, and the rest upon liuch assurances, that [
am no less cnntidtMit ©i' the truth of tbein. And
in the tirHt plact^, I know thai ntauy besides
tnysell', haTe oitvu heard his lordj^hip coniplaia
of it as ati infinite miislortiine to hiiii^ thut bia
majesty did take bimso much from the husi*
ness of the treasury ; whtreby he was neither
able tu make those improvements, which other-
wise hti couKt have done in bis inajes^i^*!* reve-
nues ; nor cuyld he give tho^e dispatches
whicli were necessary tor his service ; inso-
much, tliat I know it was with all tho regret
imoginable to hintseif, thai be was ennpliiyed
in any other busitiess, but that ot liia office aa
treasurer.
In the next place, I know how uni^illtDgly
he entered into any of the fomg^n transactions ;
bavinsf always shtwed himsell averise to those
eounciU, wherein he lunnd his majesty en-
ragged at his entrance ; viz. The tiipte league
broken, which f have oilen hcuid thjs lurtl buy
(and am r>onli<lL'nt he ever aftirmed in all
places) \«aa a bnlwark both to this nation^ and
all christendoni^ and that the breach of it wt>uld
be fatal to us ;
A war uitb the Dutch made upon the foun-
dations of a stop of the Exchequer at homt%
and an endeavour to have seized the Dutch
Smyrna fleet, before a war declared :
A league with France, by which they were
to have ihe opportunity ol sending a fleet to
learn conduct at sea frouQ us^ (oi which they
were in a great measure then ignorant) and to
know both our chaimel and our ports :
An army of English then in France {to the
iirfinite prejudice of the confedei-ateii upon se-
veral occasions) against all whichf ihii^ lord's
greatest eoeiuii^ canoot say hut he always de-
clared himself: and no man that wa^ least
concerned with the court, could uuire puLhcly
inveigh than this lord did ul thai time, and
«f er bince, against the perfidious behaviour of
the French dtet in that battle where prince
Ruptrt communded ; for which 1 have often
heard hiin coinplauj uf ihetr treachery, and
aay, that \\e dci»t rved it for trusting ibcru.
Ah these were thr circurnstanct^ wherein all
Uie world knows this lord found things ut his
entrance \ so I desire rJmt men would imly re.
roerubrr ittr-rs, and C'«:sider in such ih*ep €u-
gap t prince* to one another, ax were
Uii [he kiug>i of Euglaudaud l ranee,
wlMTihet a \%xn partible is a very abort time
ilbacn*!
to get tilings reduced to tuch a (lOVlurai
might have been wished : U|>on thiti ocram<i
much more might be said if it were Cimvenic»C|{
but I shall make only one remark upon it, aa4
desire it may be thought on s^ertously ; wbrtlK
it be not the moiit unsafe, as well aa tiiti^l unju
practice, for a nation to discourage such ni»ut]
ters as endeavour to draw tlietr master bi I
kingdom's interest, although they do not in
mediately succeed in il : ibr unless ihey
command their master^s wili, iii*itead of <
ing it, these consequences muu tie
toflow, that either his ministerA mui»t <^
service, or keep it only by following thf
pleasures and iaclinationv ot tlietr master t
tirely, or have their d^pemlaace upcm voin
other power than Ibeir master's in prou
them. For the danger of iheir ruin, from 4b
impatience of the people, will not atford iii
to get those ill-babit«i iu government cliaitf
which havr been long contracting, and co
be altered but either by conned or force.
I desire therelore now, that the pf*>ce««Jin
of this lord may be impartially ctmsii'
and see whether they have not all tended 1
diminishing of the French intere*^! amon
since bis tune ; and if il have diiuinii
witi he hard to find wboeUe there was I
liimself near bis majesty ^ who bad pow€
inclitjation to do it, since it is not reai^oiia
be looked for from any who bad been ailri^^cj
against the Triple Leagtie, 6ce. nor Irom i
wTio were engaged in the French acn ioe t
selves*
In the tirst place therefore, to shevf iiu
French interest was much diminished sioiS
lord's having the staf!*^ is manitiiat : tori
teDgtie wiih France was br«.»kcn, ami
made with the Dutch, the dukeof Mtiov
was called from Fr^mcc, and our army
out of their service ; and a is well knowil
much \\v laboured by relusing |>usses, alula
otlar lueans in his |K>wer, to have biudared a
of tiiose recruits, which by stealth w«r^ i
times conveyed to them.
But above all it is notoriously known, that lit
was the chief iuMttu me nt of procnrui^ the mar-
riage of (he lady Mary to the pr<
by which be hoped a future sr.
Protestant rehgiun would be prov ided ^ aittl hts
present hope was, that tlie Frt?nch inlcrart, ia
this court, would tlieiThy be nniteil out | v»htch
in all jirohability had brcn etTectnl, if ihf* par-
liament had been t^i huppy as tti L
600,000/. deraantletl by Uie kiv
for preparations; wlien in ■
only gave credit to horio"
Excise; by which, L havL- iiv^i.., .m
so discouniged, an did rxtremt'ly Un
ibis lord hoped, und cndeavourt/^t i
behalfftf the coulederaU^**: atwl
actions of that time between
Orange and this lord, known to tlir work
would as highly cateem buu fnr Ins
endeutonrs, bothia rtlaiiAUi
and to the coafederalet tll^
unjustly calotBoialiMt for iIk 4.oultdrj«
laiif^
^
onul pi irnte negodaljons, (which it i% iHis lorfr«
gruit iiil^fbrtune, lire n^t r;'-eir> en*rv hody
Lt; ti^e,
(1m : ..■:■■ -^i ■ , , , ■ Minds
ol the iluke uf Vuik^antl Juke ol' MtHiinoutb,
that fTOTTt InMTi^^ the gluteal aasprtim of the
F I ' iit*^ tiecaipe as tor ward ;«s anjr
fill t f ranee; and then the kin^'a
Ifood iiucuiums were protracled by the ex-
treme dilatory conduct of the Spanfards ohout
Oilaid, ^e. and {)•>*» want «f mo -^ -
In cferry on so fjfrcat a work ; t
, ,,. .::. :. .....,, -- tor
a1 I sent a considenible army to
Ui' , m2^t% and demanded «>!' the
■tiitcjf^ t<i msi "* offensiire treat) lately
itiitfk' %tith Im ^. , they absolutely refilled
to cimtiimc the war any longer.
JJurinif tho«e ^eat uncertainties betwixt
peace and war, occasioned from the cahscjs T
naveiitrL'fidy jnentiuned, proposali wpre ronde
ta his MnjvstVt ■otnetimes by the French
■nbassadoni here, and sometimes by IVIr^
'^' : ^' i fi-s?ty *« ainbasi^idor in I" rnnce)
a p* ilvvays with odVrs of nnoncy,
case .ii^ vtiujciity w ■"' * '^ ""ient to worse
idiliong than the l* . would tiq'fee
and ttie ofJfT-i vn .« the Kinjj
mid .^^n e lo I ss some
uhith ibc upon to
^t* rntarctl { that if hi^ Majesty wmild hnre
pted any sttch condition!^, he ini;|ht have
great ^uuis atihiBtinie in hts purse, and the
[ederiitr*ti mig-ht have had inanv of those
tMvna ill their possession at this davt which
are now given up to the French ; and it is to
be ieen in a tetter of Mr. Montag^ue to the King
himself, that the earl of Uano^r tnitfht have
had more than ever he gfot by bein^r h>rd trea-
surer, if he would have prevailed with the
kini; to agree to the pro^iositions of the French
But, as (he said Mr. Montasfu^ hath by
confessed the honour of this lord, vrbo
be no Instrunient in that work, and hath
in the House dcclamed, that when it came to the
bufliues«t of France^ be should do (hat lord as
much rig^bt HS any man ; fto jit^i aim was lit«
D)i^e«ity therein fo the confedcr^t* s, that he
would iM vcr yjold to any prniM»siiJou which was
not with their approbation^ anh<*;nTh (h*? ponti-
Utiation of his aoibassador^ ;* ^
fery afr<»At cxpajcc to liim :
or \''. ' / ' . -- . . 1
ari
Hwy
i# a
_; n» an
►Ttninly
■ ':' as
^ ., - aieh
have deterted
rotild bool' no
I of any arhitnry
should he chnrfyed with th*>se designs of arbi-
bilrary power ; because not)iin£>' is naore evi-
dent Atsn tbnt it w^as their own fault if they had
not w herewithal to have maintained armies, and
enrich themselves, bwides the kecfun|;if <if the
French kiner^g fnendsbip to have a^sifitetHhcb'
ill desi^uiz, insomuch that if men will but con-
sider impartially, it wdl puzzle the most on-
rhnritablc censurer to find another cause thaa
their unv.ilhngness to enslave Ihtir cntuitvy,
'- ' \ s-o u^any temptations of that kind wtre
'"d and at a time when anuiea were ni
.. ..<^H»c«s, if they had designed any such usa
of them.
I know that to offer any Rrrrmnf^.i*^; which
are not publicly kno^in, in bt^ > lord,
would be to no purpos^e at this i n meji
have not patience to let themselves be inform-
ed; but I hope this lord's patient sofrering'
will at last obtain a |»atient Bud impartial hear-
ing, and then themselves will l)e judges what
sort of friend the French have ever taken him
for to this day ; their Gazettes havin^f con-
stantly declared their ill wills to him, and the
pressenl French ambassador^^ usual disct'ursa
of him at the dutchess of l^lazarine's (^vhere
he is apt to 8)>eak more freely) may convince
any man ; which a lord of your house can
trsiify (if he pleases,) Mr. IVlontagfu's letten
ako, which were shewed to the House of Cora-
mons, do sufficiently make appear, not only
thetr dislike of btra, but that it was a maxim
amongst them. That he must be ruine<l, belbre
they could hooe to do any ^ood in Englaod,
And by those letters you will see also what
agents, viz, youngf Monsieur Huvigny, &c,
have been employed hither for that purpose,
and even about the very time, as veil as siuoe
the writing of that letter to Mr Moatajju, for
which he is so much blamed, although the
letter be written both by the king^'s immediate
command, and that the matter of it (had it
not been so) h so far from importing: treanoti,
ihut in other a^es it might hear not oulv a cba-
ritahte, but a wise and useful coustruction both
to the king ami kingdom, which wa« to hare
re-imburged his majes^ those sums he had
laid out in that chargeable mediation^ w ithout
briiigin^ any burden to his people^ or any pre*
judice to the confederates*
And since I bare made mention of that lettrr»
I deiire you will observe,
First, That the |ii opositbns sent, were Qn\
a e(*py of what Mr. MonUeue was to receiV^
from*;}i< ^Tretartes ; so tliat the thing itself
wn3ino secret to them.
Becondly, that the propositioiis were not
origiually the king% but the confederates ;
so that (lie kin^ was to ^in notliing by mak-
ing the marl^rt . k«i,t>i» htcf^ti-r or lower j and
tlie French hu orienoe, that hia
majesty wouhl i
riiii"illy, As a till ion both of bis
majesty '8 honour in ii . andtliat he bud
u« design jvt' getting the uuiucy for the pur-
piifccu Ku^^cKted against the earl of Danby. (f'lr
in til at case he would not haie ocftaidtrtsd i\m
643]
I JAMES II. Proceedings agaimt Thomas Earl ofDanby^ [644
gain or loss of the confederates) Mr. Monta^pie
is expressly forbidden, not to mention the
money ut all, in case the French king did no
accept tliosc very propositions of the con-
federates, and ill the terms as his majesty re-
ceived thcni from his ambassadors at the
]Ia<rue.
And fourthly. In thelabt words of the letter
the earl toils Mr. Montag^u, that he beheves
that would be the last time any proposals of
peace would be made, and that he is contident
tfiey will not be accepted ; wherefore he might
acconlingly take both the king's measures,
and his own.
As to that expression about the parliament
(which I suppose hath been a principal cause
of giving them offence) I have heard this lord
say. That his majesty caused that expression
to be used only for a motive to persuade the
kinsr of France to give a greater sum than six
millions of livres, which had then been of-
fered ; because otherwise in the ill posture
things then stood betwixt the two kings, the
French king might susjiect whether the king
of £ngrland would agree to any peace at all.
And these bein^ the whole contents of that
letter, and it being writ by his majesty's ex
{)res8 order, you will easily conclude, this
ord would not be so hardly prosecuted for
that only, were there not other causes for it :
When in truth I bclieTC therc are very few sub-
jects but would take it ill not to be obeyed by
their servants ; and their servants might as
justly expect their iniistcr*s pi-otectiou for tlieir
obedience.
But one great objection I have heard to this
latter, hatU been, that it was writ the S.'ilh
of March 1678 ; which was (v\e days after
the parliament had passed an act to raise
moiii*y <br an actual ivur with Fnincc : Which
is v« ry true : But it is not considercHl ;
First, Tliat an art to raise money for a
war, is no declaruiion of the war.
Stxondly, That til! such declaration, all
treaties are lawful, and even then too, if the
king pleases, in whom the sole power of mak-
ing peace and war is placed by law.
And thirdly. That the king's ambassadors
were actually then at Nimeguen, treating of
peace ; and were indeed never recalled, nor
forbidden to treat of the peace. Andean it be
thought u fault for a minister to obey the king's
orders at home, on the same subject upon
which other ministers were acting at the same
time abroad ?
l'i)iiillily, No money was then raised, and
but ttiw men: Our islands wen* unpro\id(H],
nor could they so suddenly have had due no-
tice of the war, and the French liad a gi eat
fleet in the West Indies : So that if the war had
ensued, it had been policy to have kept them
in expectation of peace, till we had been better
prepared for so potent an enemy. And al-
though it was but five days after the act for
raising money towards a war, (and the nation
then 60 totally uuprefiared for it,) yet you
fiay obserte tltis lord in his letter says, tliat
lie believes it would be the last time tliat any
peace wooUi be proposed, if that was refused :
And you may likewise observe, that if it had
been accepte<l, it must have gone formally by
the secretaries of state after the answer oi Mr.
Montagu had been returned to those letters of
the 25th, which could not have been till April
following, at soonest : So far was it from tpe-
ing thought a crime in any other of his ma-
jesty's ministers to have treated betwixt France
and the confederates, till either a peace bad
been concluded betwixt them or a war de-
clared by us. And had it been otherwise, his
majesty's ambassador at Paris must be in as
much )if not more fault) to have obeyed the
king's orders at second band, than tms lord
was, to obey his majesty's immediate com-
mands from his own mouth, aufl signed by bii
own hand.
In short, it would be ill for ministers of
state, and worse for their masters^ if the ooe
may not comfhand, and the others be obliged
to obey, in such undoubted rights as are all
the matters and circumstances of peace and
war. And no construction in the workl can be
moi-e strained, than that the six millions of
livres a year for three years, should be intended
for the introducing of an arbitrary power ;
when it is apparent that they might have had
six millions for the first year if they had
pleased ; which would have as well snfiiced ts
have done that work, as the haring it ftr
twenty y^rs more ; since every man knows
that sucti a work must either be done at tbs
first attempt of it, or not at all : So Is in trath*
if we lived in an age to make bat equal inter*
pretation of men's actions, we ought rather 1^
it to judi^e of the sincerity of the prince J
hrart to^ianls his people, and the integrity of
his ministers, who would not he teiunted i«
bring things to that conclusion (though in their
powers,) which others may more reasonaM?
be supposiHl to have designed, who began witb
those breaches of the triple league, &c. which
I have already mentioned. And yet to admi-
ration, most of those who were the first and
principal causers of these ensuing miseries,
are esteemed ]mtrk>ts of our liberties ; whdsi
the whole blame is laid upon this lord, wbese
endeavours have been incessant to have got as
out of those misfortunes he found us in ; with-
out any shadow of an action to the contrarv,
but what is drawn by a forced and unchari-
table construction of the foresaid letter, writ by
the kinir^a order, and concerning matters wholly
in the king's breast by law to act and deter-
mine as he pleases.
Buttocuiifirmus 3'etmore, that this lord^
integrity was too strong to be bettered down
by the ioregoing pretences alone ; it his bea
necessary for liis enemies to raise another
stronger than any of the rest, in shew ; be-
cause the first (although called treason) would
not by our laws i>ear the title either of tressoa
or felony ; but this slso proves so weak in its
foundations, that this lord's adverswies in
forced to support it with libeb of hii bdif
firirv to sir Edmundhurv Gaitfrey*s nitinler,
an *' ■ ■• ' * . ■ , V r:f;;: • .*' i>hy ilie^y
tj* iMi^riiuMiiu: '"'n UH>»* ft- jsI him;
floiljtjiit so in the stume lib( I i lie mmiy
^rotv r-.UliJ.< Tr. rn.Mrfs oi i^. .; :»»: auttiur'H
r to tbrgct tliat what hu
r1' ^ -t! a^'aul•t the said c-arl,
ivas an »ccus:ition a^iiixit the t%'ttne«»es, the
jui-y , and Uicjadj^«i? h ho tried and condcinutd
Oi'een,IJerry, Hill, Vc, for the sniil niiirtlier.
This fiecotid nttempt (wherthy they hoprd
to blft«t tht* earl's rejmtntiari aniungst the <x>m-
mon jieojdc^ »f they <H»iihl »Jo tiiMhittg' c]&t)
'i^ ' ■ ' ' ihe Po)>ish plot, to
i' s 'n penon, und had
♦ iniHjuiT (I \h jiu ii»r riijHsis 10 have jfiveri them
the opportunity of pultiiig^ their hcUi»h designs
In ejcectJtiou.
Whjil pmbubility there is for such suspicion,
mi|2^ht Appear Hufficiently both by the contra-
tticti^'n i( must have tohLs own interest, and
bv ihe »ll-will the Fopi%h parly hut e always
fifieHed %j^u\nttt hitn ; and Ihe little favour he
hB« rereiveil either froto them, or any that
liare relfttcfl to them; but on the conirury,
there tire ci^amples of mch^ ivho have ap>
jie&i^d as biuer a^inst biin, a^ any of his cue-
tnits.
But ilml the truth of the earl's behttvlour in
IhiH particular may be ai well known^ as* in the
«>ihcr imiUers vtith which he is traiJuced, I Mrill
mvt you iiu iriforinalion of what 1 certainly
triutt t<* be true in that bo^ine^s.
I am not able to set da» n the exact dnys^
nor iH It nccrSKary, but about the iniddle of
Au'^iist, tG7f^»»itd lh<" vnry momiuET thai the
kiog **t'«t to U inrkoi that ye^ir v\iih the whole
court, his uiujf itt y leit a p;j€f|uct vvith a person
of qualitv, which was sealed up» and com
rnauded fijcn to carry it to the earl of Dauby,
iitid to teJl him, timt one Mr Kirkbv would
brinf^ a gentleman to speak with him about it.
The earl openiopf the said pac*juel, and find-
in. ' 'wo or three shect^iof piiper, con-
i;i I al heailEi of ioformations of danger
n^imiM HIS majesty^ gave order immP<iialely to
the [lortcr at hii gale, that if mie Kfrkhy'did
(•nt.i.- In <.*pak with the curl, he should iumie<
*!i rnu^htto him.
:;ly the said Kiikby did come thitlier
that d»y» or the day folhminjj^ and did brin^
with hirn one doctor Timjfiie, \iho told the
rarl, that he Ivad df livcred some papei-s to the
kiwi? of great c/ioctTiiment : That the kinji;^ had
liHikrd t»u pert) cially over thenii and saiil he was
IfDin^ ou» of town,'but would send the papers
to the i^nrl of Danby, and would have hitn to
wait Dpon the carl about thetu.
The e«rl shewed the papirr^ lo the doctor,
and n^ked if ihfwc iicru they P Which he Buid
lb<*y were.
Qutit, Whether thry were originals?
Aftim, No, they wcie copici of bit the
doctor 'fc \*rthn^;
QnriK Who wa$ the aullmr'* and where
wi£retbeorifjniy»?
Answ. He did not know the aiilhor, fbr ibftt
the original k (which he said were in bis cus-
tody) had been thrust under the door of his
chamber, hut he did not know by whom^ only
he dul fancy it must he one that find some time
before laid discourse with hitu teiuUug lo such
like matters.
Quest. If be knew where to find that man f
Jnm\ No: But he had seen him lately
two or three times in the streets, an*l it w a«
likely not to be long before be should meet him
again
About three or four day« afur^ the doctor
came to the earl a^raiu, and told him, he bud
naet the iruui ', ihitt it did prove lo be an he had
guessed, I hat he owned himself to be Uie
author, atid Ijad giVen him another paper of
the like kind as before, numbered inlu heads
as the first was, but desiretl not to huve his
name known to any body but the dcKior, be*
cause the Paptats would murder him if they
knew what he wasdoiug**
Quest. Whether Ihe doctor knew tliose men,
who were called honest William and l*ickei'mg,
who were named in those papers as mcu de-
•igned to assassinate the king*
Amn\ That they used to walk frenuently
in St. Jameii's Park ; and if any body wereap-
poiotcil to keep hi in the doctor company, it wa«
two to one but he should have an opportunity
of leltitig thai periton sre one or both of them
in a little time.
Que^t, [f be knew where they lived f For
that it would be neceHsary to secure thoske men
forthwilh.
Amw, Ue knew not at that time, but would
inform hiniiielf, and let bis lordship know very
ijpeedily.
ILrreupon his lordship went ijnmeirmteh' fo
Windsor, and acquainted the king. That Dr.
Tongue had been with hmi acQordiuijf to his
majesty's directionii ; and informed his ma-
jesty of all that bad past, (shewing also the ad-
ditional paper to tho&e which had been sent his
lordsht[i by his ftjBJesty) and that he had left a
servant at London, purposely, to get a sight of
honest William, and Picket iijg* in order to the
apprehending of them, if his loajt'sty thought
lit,
A( this time bis loriUhip deshed the king.
That one of the sccreianrs might send a war-
rant for the apprebeuding them, and tliat the
matter being ot Such dDiiger to his majesty'*
person, some more of the council might be ac-
quainted with il. But his majesty would
neither let the mtn be apprihended, till he
were tii^e iu*om>ed of the desogu : nor would
be Hufltr tlie earl to Mpeak onw word to any
body of it : Hut on the contrary, coniiimndecl
the earl should not speak of it, so much as to
the duke of York ; oidy said, He would be
very careful of himself till he heard more.
The earl went from ^\'nidHor to his bouse at
Wimbk'ton in ^- ■ — lireiijOM^ Thtil if the
doctor had Bn\ ^ to t»ay lo him of thut
matter, he jbbL-,:u . ..*: to limi thither, or
Eeod away that g«titlemaa tha earl had leA tt^
647J
1 JAMES IL Proceedings agairal Thomas EaHofDanfyt [648
stay With bim to wee the men» and learn their
lod^ogs, and to bedili^^tin bringing any in-
telligence, wliich required ba^te.
AccordingU', that gentleman did go from
London to uimbleton, erery day, and back
to the doctor at night ; and did sometimes
bring additional papers to the former ; and
brought information of the dwellings of houest
William and Pickering ; and brou(;ht word
also from the doctor, that he said. He should
be able to gire his lordship certain notice be-
fore-hand, when anjr of them were to go to
Windsur ; of all wluch the earl ne^er railed
to give his majesty an account from time to
time.
j\mong other informations, the doctor went
one niglit to Wimbleton himself, and told bis
lordship, that some of the intended assassi-
nates were to go the next morning to Windsor ;
but that he could order it so, that the earl's
gentleman should go in the same coach with
them ; or if the coach Rhould.be full, he might
go on horseback in their company, and watch
them, so as to give notice of their arrival, and
take them more conveniently that way upon
the place, where they woufd not be able to
give any account, what they had to do there.
Ilereufion the earl onlcrcd this gentleman to
observe the doctoral directions, and went iin-
mediatety liinisolfto Windsor; where he ac-
«]U.iitited his majesty wiih all this ; anil order
was taking for sii/iiig these men at thi:ir arri-
val at Win«'w)r ; hut' instead of that, the gen-
tleman brou(;tit word from the doctor, that
somelliing had | prevented their going that day ;
but th:it tliey intended their journey the day
following, or ujthiu two tbys at farthest ; but
then also news was brought, that thuy were
a^ain prevented, by one of their horses being
slipt in the shoulder, or some such accident.
Whereupon his iiiaje.sty (who bdore would
not give eredit to it) did then tnkc it for so mere
a fiction, that, notwithhtanding all the curl
could .s:iy, to get the business communicated
to others besides himself, the king was more
positive not to permit it, saving, He should
alarm all Kngland, and put tnoughts of killing
him into jieoples heads, who had no such
thoiiyfhts before.
Tiie earl, having done all that lay in his
power, and having business into Oxiordshire,
iisked leave of his majesty to go thither (being
but twenty tv»o miles from ^Vindsor, whither
he eould return in half a day) and left order at
WimMctoM, to have any tiling dispatche<l to
him, thtit should come from doctor Tongue:
Accordirii^ly in three days after, cain^p a letter
from the doctor to the earl, giving noiieeof a
packet ol' betters from Jesuits concerned in the
plot, which wx're to go to the Post-house in
Winilsor, directed to ojie Budin^field, a priest.
W'hereupon the earl returned ^nmediatly to
'Windsor, and informed hif lu^csty, shewing
the 4io( tor's letter ; and Uf/ra^csty replied,
that there was such apackistMdbeeii delivered
aomcfew hours before, by \^ nu) Ile<lin^tield,
toJhe duke of York ; ud that Beding&dd bad
told the duke, be feared loiiie ill was intended
him by the saiil packet, becaoee tbe letters
therein seemed to be of a dangerous natoie;
and thai he was sure tbc^ were not the hand-
wraiiig of the persons, whose names were sub-
scribed to tbe letters.
This still begot less bdief in his nujeity,
that there was any real plot : insomuch, that
I have heard the earl say. He doubted whctlicr
ever he bad been permitted to produce tbew
Sajiers, and intelligence he had received from
octor Tongue, it his royal highness bad not
been earnest to have the troth of those letlm
examined, which had been brought to him by
Mr. Bedingiield ; by which meana he gal '
leave at the same time to produce tbe nid
papers, and letters to the council ; and froo
thence they have all been transmitted to both
houses uf "parliament, in one of which Ibey
remain at this day.
When they were first produced to tbe coon-
cil, and doctor Tongue brought thither to at-
test them, the doctor then said. He was sorry
they had been disclosed so soon ; and that it
would have been much better, and more woaU
have been discovered, if tbe business had bees
kept concealed some time longer.
This was ownc<l by tbe doctor himself, and
attested in the House of Commons by lir
Thomns Doleman, oue of the clerks of ihi
council then in waiting ; and the doctor bad
often said to tbe earl himself, that it wooU
much prejudice the full discovery cf it, if it
were made public too soon.
I'iiis is the sum of what paiseil between tbe
earl, and doctor Tongue, from whom only Ui
lonlship had any intelligence of the plot ; and
the doctor hath given an account accordinffl^
to the House of Commons, only witli the a&i-
tioii, tuat he always found all tbe rendiaes
and assistance from the earl, he could desire;
and as to Mr. Oates, till he w as brought into
the council chamber to attest the truth of tne
doctor's papers, 6cc. I am confident tbe earl
never saw bis face (although like other ftli-
hoods, it hath been printed, that the earl xmA
to meet him at Fox-uall, and tliat he ioTcntcd
the Plot with Air. Oates long before bis ma-
jesty sent the foresaid papers to the earl) : but
as the doctor (with whom only the earl bad
any correspondence in that matter, saving Mr.
Kirkby, who brought the doctor to him,) balh
fully justified the earl's proceedings, both ii
the House of Commons, and other places, w
^besides the oath made by Mr. Oates in the
House of Lords and council, that he knew
nothing against any peer, but whom he bad
then mentioned,) 1 have not heard that Mr.
Oates hath 8;iid any thing against the said
earl. Air. Bedloc indeed hath said that this
lord, (though at that time under the accuaatioB
of concealing the Plot,) would have tempted
him by money, to have been gone bej '
sea, and not to say any thing against the qu
nor the Popish lords in the Tower. But «
the circumstances of that story oome to be
told, (which arenotyetcoiiTeiiient) laappoia
649] * for High Treawn.
BIr. BedloewilllhiDka« fit la retract tiitt ia-
forniation against his lordship, ^^ he hath al-
re&dy ilone aiioiher be told iu tbe late btshop of
Jjaadaffe, (now of PeterWough) coQceitirojf
llie sume lord, viz. That tbts eart was one of
those at ihe cDELBult wkh th« queen , iu her
' chapel at Somerset- house ; but the earl com-
plaining of 1 1 lis in eouiicil, Mr. fledloe did nut
only detiy that ever hv said »o, but told the
kiii'^ hinii^elt; and aeveral others (besides his
ckatb in tbe lords house, relatiog' to all the
lords,) th^t be kiiew nothincc agi^sl that turd ;
aud bus tohl the earl himself, in the hearinif of
y^ood witnettsei}, that ha was able to sav several
things in bis lordship^s defence ; and that tliere
were miuic persons, ^aod amongst them one
great man) who would have endeavoured to
suIku-q hiin to swear againt^t tlie eoii ; but Mr.
Bedloe said, he uas uot a man to he f^ini^d lo
do any such base act ; atid na a deinons^tration
of his honesty and justice to tbe carl^ be
brou^fht him the copy of an iufnruiation ru-
Hectiug on the earl, and signed EcL Pauion ;
ami promii»4^ to inform the earl of the name of
that great roan, and tbe others who ivould
Itave liuliiirned hiixi before the meeting of the
iiarliainent, i%bidi was to be in I^Iarcli Jotlow-
jug ; and he told thie to tbe earl iu February
litfore,
Mr. Dugdale (wbo is one of tlie nK>st mate*
rial witne^es of the Plot,) was before bis com-
ing to London f eifainined in the country by
floineof the jui^t ices there, and his examination
i-eliirnr?il lo tbe House of Li^rds, wherein he
lueutions the fear the Jesuits had of the lord
Tre:»surer ; and imrticiilsirly how tbey were
afraid, lest tlie letters lonnerly mentioned^
%vliit-h weredirecte^l to Mr, Bc'lingfield, should
fall into his bandK ; kuoviioi^ how great an
enemy he ivas to them : and he has spoke to
the same effect !»iucc that tiroCf before divers
lordjiof his majesty ^s council; m that what
groimdn they have for accusing this lord,
cither tor the concealing or abetting this plot^
1 must leave to you» and etery impartial nian
to judge from th^ niattt^rof fact.
But u|>«in w tiat grounds this lonl hath been
reputed a Papist, I cannot hut wonder yet
mure; ihr in the first place he is kno^^n to
)»ave been aUiavs educated in tbe Protetitaot
lleligion ; and iiath given conslant tt^ti monies
tlicrcof, io all times, and without aoy al*
tefatkiii.
He hUfa B«t only been a cooMnnt, but a
S^aloiu sMerlef of tbe Church of En^bmd ;
and 1 pray God (that alt bough it he tK)t
owne<l) ihia may not be one ot his greatest
crimes.
Hehfltb not only uppeareil for it m parlia-
ment, and elsewhere, against all oppose rs ;
but would never agrve to any councils ill at
might endanger it : as tbe declaration in par*
liament for a general indulgence, fkc. fbe
coiase()Ueoce wbereol' (I hare heard bim say)
Tuitui ucctrssarily have been an intrtiductiort of
Pojiery ; but it is true, that 1 have ever beard
bim ^feas that charitable mind, as not to
A. D, 167S— 16M. [690
desire the ruin of any sort of men, who would
live (leaceahly under the government, what*
ever tbeir opinions in religion might be.
Iq the next ulac^, pray, let it be observed
wiih what kindness the Papists have treated
this lord : for so beholden is he to tbe ge-
nerality of that persuasion, that tftt^y do not
only tor the most part speak ill of him, but- ^
they have slandered him iu private with th#
story of being the inveoior of tbe Plot with. <
Mr. Dates, and die designer of the duke of j
Vork^s ruin. Nay, even the murderer also of *j
sir Kdmundbury Godfrey ; and beyond seas^
especially in Flanders, it is reported of him
both by priests, and others ; that he was the
original inventor of this Plot, and that he it
the cause of all the blood which hath been
shed upon that ocoiiiiou : when at the same
time, he is accused of heiag a papist, and a'
concealer of the Plot, in concert with ibe dok^ i
of York ; nay, so inveterate ik tbe maUce of |
some men against this lord, that tliey are re-
solved to make contnulictions agree, rather^
Ibaa want pretences to destrt^y him.
One instance wbef eof is, that this lord's de- <
si^ to destroy tbe guvemment, was the sam*
uiib Colemarrs ; and yet it ia known lor a <
truth, aud cannot he denied, nor will it ever be ^
forgiven him by tlic Papists, that there hadl
not been ooe pal^er oi Coleman's seized, but *
for the care of til is lord, who cau^d a warrant^
to be drawn for that purpose, and got it signed
by five of the privy-council* alter the louncil
was risen, who had omitted the directioti of
seizing his fiapers, out of the warrant tor ap-
prehending his person.
This aloue (were tiiere nothing else to be
said for itj would be sutlicieoi, not only to vin-
dicate this earPs innoceticy from concealing
the Plot; but to shew his great readiness, and
indu'kf ry to discover it.
Havmg given such an account of this Iord*a
integrity, whereby be must appear, boih a
good Pn>testaot, a good Englishman, and a
good mintsier ; I ex|>ect to have it reasunabljr
objected, why a man so qualified lo defend
himself, should first withdraw from bis triaf,
and tlten upon bts appearance quit ali thc^ae
I! ' . {which if true, would render hm^
I ., rather than criminal,) an'i l>etake
iiiiij>L4i iu a pardon ? by which indidcrent
men as well as bis enemies are induced to
suspect his guilt : aud IkkitUs wkien he did
insist u|>ou the plea of his nardon, wliy be did
not rather chut*e to make tmit his la*t defence,
(in case tbe plea of bis innocence should have
been gver*ruUil,) then tnuke it his tirst refuge,
and thereby debar himself of all opportumry
cif making his innociitce appear, although he
should be acf|uitte4l by tbe tisrdvn ? I coufesa
tbcM^ to be ^uch real and solid objections, that
till they are answered, I can blame no man f
hard cen«»urc of Ibi^ lord, wbt) withoul other
prejudice itiMy have grounded his ill opimon
upr»n these foundations.
But the answerii to them are most evident :
and Orst, why a pardon at all to » man so
6511
1 JAMES II. Proceedifigs againd Thomas bad o/Danhy^ [632
qualified for his defence ? hath a full answer,
(if nothing else could be said for it) which is,
because his majesty H'ould not suffer that his
Jirivate papers of sUte which ought to be tliis
ord*s defence, should be exposed to public
▼iew ; and although a man may as to his in-
nocency be fully oualificd for his defence, yet
if he cannot be admitted ift have those mate-
rials which sliould prove tbatinnocency, it will
avail him no more than if such proofs were not
in iMfiusf.
And he had the less hopes to obtain them,
%i hen it was one of his requests to the Lords
upon his first appearance at the bar of that
house, that their lordships would please to in-
tercede for him tu the kin|^, for such papers as
uiisrlit bo npcessary for his defence. To which
the Lords «^avo Ins lordship answer, that it
was not proper for them to move the kin^ for
any of his private pa pel's: so as his lordship
was wholly without hopes of prtitinnf them, or
leave to slie^^ kiicIi as he had himself.
Ill the next pi&ce wh\ he absented himself
for KOI lie tniH', may pertiaps not have been the
least act of this loid*s fil»t:die. co ; for (to omit
other reasons) the <:iiie of iliis lord^s pardon
appears in Ins plfa, wliicii is tlit* first of 3Iarch,
and this hu-d did not .;hscnt himself till the
2U'ii (»f March ; so that he was as well pro-
vided of his panlon, the firet day he was ab-
sent, us he was wlirn he delivered himself to
the custody of the Htack R<m1 ; and he was as
well informed then also, that there was nothinif
in hi', chai-fire, (were it all confessed) which by
the laws of Enp^land could amount to treason ;
so that every man, by his own reason, may
satisfy himself, tlint it w<*s neither for the
want of his par(l(»n, nor ti:e danger of his
crunes*.
AnA for the last olijeotion, wh}- he did not
reserv*' his pardon for li is last plea ? may al-
most answer itself; for nolNHty can think any
m:m such a fool, as not to havi; done so for his
own sake if he enuhl : and I know that no-
thing did trouble this lord so much as to fhid
he could not, (his lordship hoping never to
have us€:d it but in ease of false witnesses, or
tu supply that defect of evidence which was
not in his custody ,) hut it seems it is the law,
and all his council were unanimous in it, that
the pardon being already granted, it must
either be pleaded at first, or was void; and
notwithstanding tliat danger, it was with great
difiicully, that l)oth his council, and his nearest
relations could |>ersuade him to rely upon the
pardon, although he knew he could not obtain
that evidence, which was in the king's custody,
nor have leave to produce whut was in his own
about the letters; besides, that his council told
him, Inith by ex[)ericnce,and the lord Coke*s au-
thority to confirm it, that no man ever refused
God's panlon, nor the king's ; and his ma-
jesty would have had great reason to have de-
strtcKl him, if he had rfjected his majesty's
grace ; and yet although seven dava were al-
lowed to tliis lord, for the putting Ilia answer
ioto the Honse of Lordt, it wu not fioisbed aa
hour before tlie delivery of it to their lordships;
and Ids council, for satisfaction of his lordfthip,
were forced to contrive the expedient of a short
protestation, to be annexed to the plea, as it
now stands ; but those who printed the plea
and (lardon, would take no notice of the pro-
testation.
Now as to the granting of this pardon, which
I also hear wondered at ; 1 wiab any man bd
to reflect upon this case, and see whether bii
majesty be not most concerned, that none of
his foreign negotiations shonid be exjiosed to
Eublic view ; and yet it wouki be ao unjust for
is majesty to suder this lord, or any public
minister, to be undone for want of produciBg
those things, which are necessary tor his de-
fence ; that for this reason alone, a panlon wm
not only necessary, but just ; and I believe ft
would be difficult for any man to propose ano-
ther exi>edient, which could both preserre tbe
king's justice to an innocent servant, (who bad
only olieyed his commands,) and tliat right of
secresy which is due from sovereign princes to
one another in all their negotiations, wbidi if
once broken, makes it impracticable to treit
with one another; and which is held so sacred
in all countries, that there are many exam|iles
of the divulgei*s of them being punished with
death.
Besides, this lord had assurance that fake
witnesses had sworn against him, and fiodhy
the readiness men have to believe any thing of
one against whom malice hath so naany ill re-
ports, and to so great a height, as it had done
agninst him, he could not hope to be heard biit
with prejudice : And lastly, (as is commooly
the fate of men in great places) he bad mu-
traoted the ill -will of divers, either by hinderio;;
some (as they thought) from enxploymrnls
they aimed at ; or not having procured tfaf^e
for some which they might expect, or by hm%
thought the cause of some men's remove fioiii
their places ; or for not having paid some, and
gratified others, arxv)rding to their several ei-
pectations ; Tlu-se added to the specious pre-
tences which have lieen already mentioned
against this loni, made it but just for his ma-
jesty to give his protection to him, whom be
knew to lie innocent, and hath as publicly -de*
dared to both houses of parliament to be so.
I H ill not presume to say any thing* about the
validity of the pardon, for fear of giving of-
fence, more than that many have needed it
more than this lord, and had it as fully grant-
ed: And 1 take it for one of the great Cappi*
nesscs of our government, that his majesty
hath an undoubted iiree right of granting it as
he pleases : And for the argument of inconve-
nience, it may as weH be urgei] against any
act of mercy, tbe king shews; every afll
thereof being as inconvenient to some, as it is
merciful to others; and therefore hath tbe
king only been left judge, in all ages, when and
where, he will dispense it; and the pcofle
would be in a miserable condition if it wen
otherwise.
I will oottcbide with some obeervationt wf
Jhr High Treason*
A. D. 1678—1681,
[654
i
titular in iliis lord's case : Remuse 1 ihlnk
le Ifke liAili Rcief ha|»(i€oiii in any other
This lonl^9 accusatimiii hate heeii bodi for
wivipg- the kin^'A moiic^, and P{inuhng it.
For pi-nmotiii^ tUe French iiiU-rf^si j and yet
\i^ Frt'uch atnlai^sfldorN coofitatit enemy htre ;
id in Fi'aiice it was ulways ti niaxiiii. That he
m%t he ri]ini?d b«fere they could do any good
Engfaod.
For btftii^ a Pu()ist^ atid yet the de«t^n^r of
fhe diike*s ruin, and inventor of tlie Flot for
iheir destnjctioa.
For haVing the same dt^sign with Coleman,
and yet batug the sole cattse of havitij^ his
P«p^ taken.
The em|iloyiiig' the klng^'fi treaattre to srnt-
t}fy |>i\rticulur pencons, is one of his crimes ;
and yet he not doing so^ is one ()rolifihIe cause
of bill punishmeijt.
He }s made the ohstnictor of all puhUc pro-
^eedinifs in the kingflom, because he was not
first bniiijrht to trial, Tjefore the Pomtth Lords :
And yet (hfsides the diflerence of tlicir crimes)
he wax di*nied council, so that lie could not
he tried nfien he appeared in order to it;
i*hich uas never relused before to auy Eng-
lishman.
He iii found fault with for roakimx useof the
kiti^V name, lor excuse of his actions done by
the kiri|f\ ennui wind ; and yet they are owned
by the king lniu*)elf in parliament ; and his
lordtihip muKt eitlier aay lutlhiug, or tell a lie
10 make any other cxciiiie.
Lastly, he hath tiot only the king's pardon «
[It with a ptihiic declaration in parlifnoent^
Iwlh of hi-^ innocency, and that hts ntujesty will
^Atii his pardon t<rn times of er if this be de-
fective, either in matter or form ; and it is
known that his crimes do not amouot to trea*
MOUt r '■' * .very artiele of bis charge were
ynn hitu ; And yet this Uird rcmaina
still ii , .i.^.... i, and under the name restraint
with the Fopish lords in the Tower.
Upon the whole matter, I can make hut one
conclusion, which 1 am sorry is so remarkable
in this nation, L[mt innocetice is no protection
to prince, nor subject. We hare seen a sad
ejtamplc of the first in our age, with the same
engine of Popery used for his destruction, who
was the great^t martyr for l*rotestanl reli-
^^^" Aad f think this lord's case an instance
gfe«l setrenty, wiilk so liule cause for it,
eirer heard of in this kini^dom, or any
But as it hath pleased God to let him
under so n^atiy contradicting circuui-
80 I hope he will as uuraculoiisly de-
rhtm, not only from \v
be will so open the vyau i it
kc them senfiihle '^^ •'
rhaveuudeKerre^i
^ his king, Ijiv r
tligion. Am)
our, that f rttn
I tin it in
ttfiOlyii— ■->. ^-'
jiicnt; but
Fople^osto
» of so great ho-
will endeavour
I you ar« so de-
A^ EXAMINATION of the Earl of
BANDY'S CASE.
WRrTTEW Vi THB YtAR 1(580,
ThouG^h I hare little curiosity to read th«
pamphlets that swarm at this lime, and think it
almost as great an error to mix with ibe crowd
of writers, as to mingle with any other riot ;
yet I was drawn from my own inclinaiious, by
BO specious a title, as, ** An Impartial State of
the Cuite ol" the carl of Uanby ;*' liavini^ been
conversaDt in many affairs that relate to that
lord. At the firs: readinf:rof it, 1 was not a little
surprized to find, (as I then thouglit) a tiling
puhlisbed v ith such a title, and confirmed with
such confident promise;^ of truth, and yet to be
composed of three things so far from impar-
italttv. The first is the manner of arguing,
which is most upon questions begi;ed. Tbc
second is, of many untruths, which I pre-
sume were easy to make appear by matter of
fact* The third is, an endeaT<»ur to fiit upon
the kinq , most of the erroni and crimes thai
were churfrpj oq iiim.
Vet wttit tbi^ first notion I was not satisfied,
but read it more carefully the second time ; and
l»ein^ then convinced it was subject to thc«e
errors, I thought it my duty to my iiintj and
country, to let them not be ignorant ot' any
infi>rnitttiou that I could give ; since some par-
ticular knowledge that I am furnished withtti,
makes me more capable to present them with
some ob*iervation!<, than otbers, thtiugh of
greater abilities than I, could have done,
I there lore apply ed myself to examine this
sharp censure upon the parliament, for so ill
rewarding tbe merits of this deserving loi*d, as
to let malice have too great a share in his pro*
aecution : And in the same place there is aa
assurance, that nothing aiiould be relatetl, but
what may be dependetl upon for truth -
Who Ltie author of this is, I cannot tell ; but
if it were not the lord himself, it is a friend
more passionate than usual, and one that gitet
him so large a character, and in whose caii8«
he condemns both king and country ; that it
seems hardly credible, that one man should be
so extraTaganily kind for another, but rather
the production of self- interest and conceit : and
comparing the stile and arguments with thia
lord's sjieech in the house of peers, when he
was charged, it helps to conrtntv my opinion^
that this ford was the friend that writ it ; and it |
is more nrn liable, that he is so much a friend
to hiiiiself, than that any other shonUl be so l#
him.
f shall now proceed to particular remarks^
in with the first matter of fact ; ^* Tli«
ill discharge"' of this lord's trust ostre^.
surer of the navy, to the ** satis*! action of hit;
•* majesty, and the great content of the se«i^_
II i» fit to abf erve, That this ofea dap^ty|j
85S]
1 JAMES IL Proceedings againH Thomas Efirl nfDanby^ [656
on the directions of the commissioners of the
luvy what to pay, and on the lord treasurer, or
commissioners of the treasury, fur money to
{lay ; so that if this lord ffave content, it seems
ie\vas supplied to make himself capable of the
Eerformance. But his impartial ftiend attri-
utes all this to his lordship, as he does other
thKig^ to his management with so much pru-
dence and success.
But yet it will appear, he has but ill-luck in
his first .assertions; for since the treasury of
the navy is ao confined, the great trust that re-
mains in him, is only in sums of money, which
can be violated by no ways, but falsely dispos-
ing it, or applying some to his own pnvate
use ; the last of which has been counted a
high crime; for the king's treasures bare
erer been taken to be ' Sami Patrimonia', and
none were to uae any of it, bat were liable to
great pnnishments.
But this lord ventured to apply 2,7472. 6i. lltf.
of the king's mon^, to his own use ; and was
short 80 much in iiis account for his faithful
discharge of treasurer of the nary : and was
fbrgiven it by a privy-seal, bearing date the
Slst of February, 1676, which was about three
years afler he was lord treasurer. A season-
able time to pan such an account, to be. for-
S'ren for some money, when he had gotten
e command of all tUe rest : but 1 shall not
dispute whether this fault hindered his majesty
from being satisfied with his performance in
that empk>yment, since his bounty and good-
ness was in other things nucli more extended
to this lord ; but how well returned, will appear
by the following obsenrationB.
Aflcr this stumble in the threshold, he pro-
ceeds to \\vs advancement in 1673, to the place
of lonl trrasurer ; vhich, he says, he manJAged
witli so great '* pruilcncc nnA success, ttiat
contrary to ailments expectations, but espucially
of his enemies, (who assured themselves of his
immediate ruin by that preferment) he sup-
ported for near six years that condition of his
roaster, which it was not then thought conld
have been made to subsist for so many months,
without any supplies or burthens laid upon the
people in all his time."
Here his impartial friend begins boldly to
assert, and as confidently to beg the question ;
that this lord sup|iorted tne king's condition for
six years, that was thought could not have been
made subsist six months. I believe it wouki
puzzle tlie author to name the persons that
were of this opinion ; for the}' could find no
pubject- matter for their judgment, but must be
guided by flattery or ignorance. And it were
very uncharitable, if not malicious, to believe,
that those that managed the revenue before this
lord, should be so weak and dishonest (tor less
tluui such a conjunction, could not reduce such a
revenue to so deplorable a condition) as to give
any a just ground to believe they had not left a
suhsistance for six months.
This heavy charge on his predecessors,
teems not only verV partial, bat very extrava-
gant} which will be best discerned, by exam-
ining the great success s«d prndenee of tbii
lord; and perhaps it wiH appear, Uiat
should rather have judsed, and lus
have apprehended, that tlie kin^s i
left in such a condition lo tbia lord, that il
might easily have been supported for a msch
longer time than six years ; and if any caJeo-
latioD was made for his ram^ it most have bess
from other causes.
As to that of supplies, it is very tme, thai
there were none given directly to the lung's
sole use In his time. But the eighleeB moniKi
tax for 1,338,750/. which was ^vte ia tbe
lord Clifibrd's time, was all pud in thssbrd^;
half of which, vis. the last tbrae ouarters, was
solely disposed by him, and the ntai three bj
the lord Clifford, for pablic uaes: whadi oos-
tribated to leave the king's conditisD in a bcttr
posture than is here aeknowledmd ; which
will be shewn in a tnore pre»per paee, wfaa I
set down the state of- tbe long's €QnditMMi,i8
point of his reveaue, ss it was left by bis pisdt
cesser tbe lord Clifibrd. *
At tbe sametinRe I wfllpicaent how this
lord lef^ it; by which every raasoMBble ma
will be best conrinced. Yet hefbre I phinlf
set them do wn « I wi 1 1 beg leave tn take nolioe «
some particulars, which perhaps nnay he usefal
to the consideration of the generals.
The first illustration of this lonl's prodopce,
is drawn from tbe chargeable war widi tln^
Dutch, the whole burthen of which, this vrnpu*
tial friend would lay upon this lord to dii-
cliarge ; foigetting, or reselying to fomi al
but his concerns; and that the war was ncgss
in the time of the commissionera, and the mtf
charge of it was in thetime of tIrakNrdClilbid,
who miglit as well oomplaia, that he had no
benefit of any tax given in his time, as lUi
lord, that there was none given in hia.
Bnt that I may not say more than I lan
clear, nor desire to be believed only from oanfi-
dent aifiiinations, I must acknowledge that I
have seen tlie disposition of the three fust qav-
tersof thetax: The first was made the M of
April, 1673, which waa not three months be*
fore the lord Clifford resigned hia staff; tbs
second also was signed by the lord C^hftid;
the third quarter was projected «by the lard
Clifford witli this lord, then sir IjiomasOiH
borne ; whose name 1 have seen to the botlaiB
of the list, being so entered at tbe Excheifacr:
the otiier three quartefll were not meddled with,
but left wholly to the disposition of this Isrd ;
in whose time also, all these six were paii.
Concerning other taxes and monies^ I ihsH
give the account in a more proper plaoe \ sad
only add this observation, that all assignmcslf
upon this tax, ever found credit for the advaac-
ing of mon^ ; and this burthen of the Dmeh
war (lid not lie so wholly upon this lord, nor was
the tax so unuseful to him in discbaigiBg of hii
part of it.
1 will not unnecessarily dwell upon pailisi-
lars, as, what arrears were upon severalaffiM;
the general states when laid down wiHhsli
answer that : but I will only toneh npan warn
^nii
Otb«r« tbat will Dot relmte to thul, wheruby
rtry tiling' ni%y hnwe Mji jtu<it tAjifftiiiHtioti.
dneiprfsitpftrliculnr npplied to ihe honour of
h tonT. and 10 the iiil';iriiv of others, is the
delHtatli i^iM J which yet
bt paiil, livit I ' iljh^of Jk [ierpe-
iutei^st to be paid. I wiU ut»t deny but it
a just and g^tHMFactton ; nay, thouj^h Mr.
Cf'li man rjaims a Htmre iii tt) whose btfue&t
perhaps only raude him active in it.
Jiut iijH>u thi» occ'asioii, I wouhl only pre-
t a wmall vitt« of the iuipaftialliy of this
riter ; he calls this atop of the c!(cl)ef|iier
an infuinoiis action, unti tixea it upon mtiny
fKinSi aliowtng no excuse for theui ; though
was owuetl by the kiri^ in a piihlic dechirii-
, by renaofl of the necessity of atfiiit'a ;
t when thrs lonl inis char^ei) with crimes of
higher naturee, he allcjws I he wle;i, that llie
Ittp commamM it ; aud though pi i^ lately, to
aufficieitt to wipe otT all infamy frotn him.
ia csiitiot appear gfHxl reason, or clear jus-
», and leaa ahewed towards the king than
any : If this lord be chari^ed with an ill action,
it muBt he Hxed on the kin^ ; and it' a g^ood
one be to he claimed, it in whull} ap^thed to thi*^
lord^a honour ; and tlie kin^ muiit he allowed
no ibare of his oh n g^orxl nests.
The next particobrs; he u^cs to help shew
what ^restl thujjf si ihi>, fonl performed, is, the wj\r
of AlLcier^, and the rt-hellion in Virginia ; Tfic
J*st <pji«.klv ceased; ond while both happened,
'"ihertf li;Ld hecn a con«riderahle 0eet for sum -
er :md wmttr tjuanis kept uui besides, it had
been a mutter of »ome con^iideriilion ; ollier-
Vfhe the itparin^ of thofte, was more consider-
able than thepuyint^ fur theae.
Other more slight ]»articuUr8 are act fortli
In the next paragraph ; the ^eat abatement
of the com act. Mi the diminuihinw the cua-
in« G0»000/. a year ; The act for prohihitiug'
le Ptviich commodities, which has lost not
than 150,000/. a year from the aaid re-
iue ; which thi!t Jordan predeceasors did re*
ire yearly into the exchequer. What these
•U mifl^bt leia«n from what the customs mi^ht
lave been, none can wfll rnns^;: but one
ii>g will confute the o wt. Thnt
raa more paid in \n*^ [■ irg timen ;
any take a medium uf the time of thia
_ being^ lord trea54un?f, and it will ap-
r^ tbe cuaioma never yielded so much aa in
iia days,
The nevt complaint la, the 200. OOo/. bor*
rowed on tbe Dtlli part of the excise, and the
Ineotiveninil maimer of re-paying' it. Thi» I
confess i* hnrd U* U- uritUri»iood ; For in some
ifl money was of u«*e, not of disad-
>tliifi hmr*, for the full 'i0O,g0O/. was
i lime* and at \u^ r>,.,twj' 0,11, on the
bfMan h, 1079, 83, t i\ to pay,
Kiuce vna tmii) !iv < nt cOfU*
m that 311 lu
I in the » Liaarement,
;id not the wht'le uuv biirihiMi, to make lh«s
JTork Ko much the barker lor hia prudeiftoe aiid
li<a:i^a.
YQL XL
167a— 16S5.
Tbe next paragraph sets forth *' this lord's
care to be very great, to see money applied to
the moat public use!^, as will nfipenr by tbe '
weekly certificaiea in the exclnNjuer, (to whicb
lie appeaU) and from which puUic u«es ha
never divertetl one penny that was so appro*
priated, (notwiihst^mdin^the uiiuiy fai»e aug-
g^estious to the couimry, -^c,*')
This dark text oeed^ a commentary. First,
as to the weekly certitictites of the exchequer.
It is to be ubfierved, thnt they do indeed give
an account of all appropriated moneys ^ bt»l
by ttie wa^, lest it iihuuld he taken for granted
it docs »ro of all other moneys, it i« 6t to let it
be understood, that thou^fh It should and ought
to do 80, yet this lord caused many sums of
money tu be paid by hi^ private direction! and
never cognizable iu the exche<iuer, which th«9
commissioner* of the excise cannot deny ; nnd
Mr, Berliei or a i>rivate letter, tbe voucher for
their being placed iind a)lo%ve<l to ^eir account.
That he never diverted any appro(maied money
(he means, I suppose, hy acts of parliament) is ,
very tnie; hnt it is as true^ Ibat he could not.
have done it, if be bad the iucliuati^n 10 have
attempted it; for hh warrant or directioDB
would have met with no obediance in the ex-
chequer J for the auditor would not haf e di-
recte<l moneys, nor the tellers have paid it to a
wrong vouctier; which renders not the ex-
chc«)uer a proper way ibr private dispositions
of money ; Icir there* 00 lord treasurer cau ba
obeyed against an act of parliament exoresiily
directing, nor in any thing that is derivetl ^olcljr
from his own auth'ority : But yet where this
lord had power to diveit, be has not been scru-
pulous to use it ; for when money was lent oo
the credit of the fifth part of the extisr, he hin-
dered it from coming in \ (which wiis often
iHimplained of publicly at the exchequer by iha
lenders of the money) and diverted it to other
uses: norcan tlietate commis^siot^ers oi this ex-
cise deny this j if they should, the lenders will
prove it, who daily sohctted them to bring it in.
A second instance is in the poll-hitl, whicU
was ^ivcn for an actual war with France, tipon
which many Eai»lUnd merchants were pro-
mised payment Ibr hen>p and mast«, and olh«r
furniture* for ships, which were tnken up of
them ; but no care taken to reserve money Uir
them out of the act, but arc now lKh»re the
present lortl* wnuuitsionars. whoarecontrivmK
stsciirities, or pn^tnents lor them ; so thnt it
seems this lord ohserved ju*t lutes where lua
couhl not violate tht^m, and broke them wUero
he bad p<iw er nr opportimity.
In lUe suiiie pnruirrA|di tlii« Wd*8 industry ta
set forth m the i^»pHlvm^^ the ki»K'» revenue j
Bu» this was no peculiar industry in thi»» lori|
that wtis unprcc«*dentetl ; for the cuwtomH W-
once let fur 3CKVKK»^. pe'' »u»M'm, ^nd '
proved to 600. txK>/. jnsk heforo V^'- f im-» ■
the excise was likewW improif 1
iii<ire the indu*!t«y of pnvnte iu
tr^^ftsurer ; for hy lh*Mr draire * 1 i;i*ui,
hid u^nm one another ; which atreaottrry
reoeive^or put out tbe caniili tbej ydl|^ ^
« V
WBMa
M
665]
1 JAMES II. Proceedings against Thomas Earl ofDanhy^ [664
* counts, I cannot justly say how that office
* stands.
'* The victualler is paid U'ithina small mat-
* ter, except the last ajj^reement for the land-
* men.
" The first three quartt^rs of the tax ^iven
* by the parliament, are assigned ; the tiiree
*' last are untouched, uhich amount to about
* COO.UOO/. *
** There will be in October and November,
* for|iaynieutuf the fleet and yards, in ready
* money, theiie three tollowinj^ sums.
* From the advance of the Excise - 150,000/.
* From the French money • - 112,500
* Upon the 3 quarters of the subsidy 80,000
34^,500/.
** llie chimney money and the law bill are
* left free, to be chargol as there shall be oc-
^ casioii.*'
l^y this it appears that there was 942,500/.
Jeff ill money, and tlie chai^ u|^n the revenue
not 300,000/. For tlie Excise was left char|^
not above 110,000/. when the lord Cliflord
went out : and whether this be a truth, any
that doulit it may be resolved by sir Stephen
Fox, or Mr. Richard Kent.
And to shew also that the condhion of the
customs was truly presented, and the lord Clif-
ford in his paper guessed richt, and tliat the
return ot the la^ tleet would clear it ; I have
obtained a copy of a letter written from Mr.
Mounteney, who was then cashier of the cus-
toms, to sir Robert Howard^ the then secretary
to the Treasury :
"Sir;
" I have a list signed by the lord treasurer
* CliflTord, and coiiHrroed by the present lord
' treasurer, the said list being wholly paid, only
* 8,400/. payable to the treasurer of the navy.
* 1 do hear there are several tallies struck on
' the customs, but I know notot \vbut value, nor
* to whom payable. I understand the peisons
* have made their applications to my lord
< treasurer, and that my lord intends to make a
< new list ; which is all I can say to this
* affair. — Sir, &c. Rich. Mounteney, Cus-
* torn House, Londou,the 10th of Nov. 1G73.'*
It now remains to shew on the other side,
the effect of the great prudence and success
so boasted of, by as liiithiully presesenting the
State of the Hevenue at Lady-day lC79,
when tl.is lord left it. And to be as clear in
this as I was in the other, 1 have obtained
likewise a copy of it, as it was presented to I
these present lords commissioners of '
•ury.
* The charge upon the three great branches
* of the king's revenue, computed to renidiny
* Lady -day, 1G7«.
* KeniHrns unpaid of tallies charged on the
* customs, 435,106/. 1«.
' Of talUes cliarirtd on the exdae. 650,464/.
« 15«. 4</. .
' To n^y the ad? ance, 250,000/.
' Tlie charge on the hearth datv bj tallies
* aod the advance mone}'« 850,000i.
« Total, 1,485,570/. I6f. 4i/.'
Aod now the equal reader b left to judge,
(tliough the Impartial Author aays be is not)
whether this " k)rd, or the people of £Dglaiid,
be most unhappy in his miubrtunea."
But to those that wBl not take the pains to
examine this, and are not con vineed there
never was a better officer in this statiuB, be
pro|K>5e8 a new sort of evidence irom *^ Coffee-
houses themselves," who ha?e complained
ot the *' good husbandry this lord used for hit
master, for frar it should keep dflf the me of
parliaments," *«
J will not wonder at such a proof, for the
writer uses always great liberty ; but I wil
only do the same, and desire those person
also that will not take pains to exaoaiBe tbii,
to receive the evidences now in the coflee-
houses for his lordship's character. I an
almost pcrsiuuled, that if ballade had been
sung in his favour, tbcy would have been arged
as evidences of his innocency ; but 1 dare noi
take the liberty to ui^ tliose thai are suoy
on tl»e contrary, for testimonies of his goih;
but after such evidences as eoffee-honifs
introduced, the next may probably be ballaik
1 have now finished my obsprvations on
that ])art of this lord's ministry which bekmged
to the treasury, and shall now. proceed to slate*
affaiis, in which other sphere, (for it was net
enough to shine in one) the impartial author
presents liiiu as great a minister as he hat
done a treasurer; concludmg aa he began,
'* That whai he had said concerning this kml'f
administration in his office as lord high ties-
surer, he spoke upon certain knowledge ; ami
%\hat ho shall say in relation to his traiisactioDS
in the atfuirb of !»tatc, are partly so, and the mt
upon such assuranci'S, that he* is no less cOfc-
lident of the truth of ihem.
Thus he tells us. That he builds upon some
assurances by him received, as firmly as on bis
own certain Knowledge. This I suppose be
might do, without any compliment to those
from whom he received them ; for by the exa*
miuaiions of all coiiipai-ed, it will I suppose
ap[)ear, tbeir credits ought to have no pre-
eminence.
He first introducc-8 his discourse with a
complaint he heard this lord make. That ** it
was an infinite misfortune to him, that his
majesty did take him so much from thebusincsi
ot the treasury, w hereby he could not make
iented to ^^^^ improvements in his revenue, and give
the trea- ' ^^^^ dispatches that were necessary ; and es-
presbed his regret that he was employed in any
other bu^iuess thaii the treasury.?'
As to the improving of the revenue, it biB
been discoursed already; hut lor dispatcher
I suppose he did not Mlieve much time wai
necessary ; if it be true, as i have heard, that
be endeavoured to gain a belief in bis m^eslyt
that no man could be a good treasurer tbat was
easy ot access.
As for thai regret this lordbad, Ibr tfaeift-
A. D. 1678—1685.
[666.
crense ofbittiJiesCf and coiiseiiiientiv power ia
the kint^^k nflairs, I sliall only irmke some ob*
seriAtiijiis ujion thts)ur(i\% temper And pjocetii-
ingi» I hIucIi will ttlietv, tie rattier deihired to
cm^^fons ttll aflttir?, ttiati sUureauy. T(j<i as
Sumner of 3 i)i<i(kst And cootiucHl uatiir^' vvould
have best apjiearcd, hy the ens) und friendly
CArr^iu)^ on ihe kiti^'s busme^s, witli such
IniiiisUTs uud oOicciit aj:» were uf^r>od repute:
btil instead of tlmt, this )urd sboi'id a t<*iuper
ofa cuntniry nature, by uiUim^Uug llie re<
moval of every aue that was riot prostruta
enough to fiinu He bet; an wfili iftr Jtdin Dun-
comb, and sir Stephen Fox, rnen ot itiosit liti*
qucstiooQii worth 111 tueu em^iUiymeitt^: ihto
bcougbt acbarg^e tu the council ut^niji»i tsir Uo«
b«rt Hovvard, iiudtlor of the receipt; the vue-
caiiof )»hich iH publicly known, and uii^ht
«iiC0tkiiiiea« have been very well gue^ned by
tJiia lord ; but there were two ^reat caueeii that
Ifliihled hilt reason ; his son the lord Uunblain
li«d the rever«toii of the auditor's ploice, and
the removal of htm with the others^ iiad re-
Wucrd ibe Kxcheij^uer into his uncontradicted
powrer-
1 he niiniHters in slate- afl'iitrs, (that did not
subtiiu jtuplicitly) fouuil him not less amhitious.
My lord Arlinifton, and Mr. Secretury Coven-
try, jieciued to hnve nritfi of etkite in loieign
ftttktrfl, uud very often ^^ere re|M»rta and ex*
pecttliooa of their lenving their places j
smd tboae ihal were upon better terins
^ith htm, wcfe abeyers o* hm ^>ower, and not
sliwreru in any: and I .nn conhdent, whoever
thoroughly examines thitt lord'n letuper and
<!aiTiage utitun^'it itien and buKinesif^ he will
Imtdly con« lude it probable, that any rej^rel
could spriuff frutu hvi inerease iti power ; rather
the diameter of a very great man may
be anphcable lo hiin, as to oiur part of the
ivurid.
*' iEfttaat infelix angiisto limite Regni."
Juv\ 8dt. W,
The 1 ' ' \'*n[ cnterctl unwil-
lingly II nn, wa«!j " because
auar with the Dulch« a league with Fnince^
and an anny of Buf'hhh Uieu in France."
These pariicubr» will not concern tn) ob-
ier?atioa» ; if any dio amiK!^, let ilbc tjuitnini^l
wbttO there in vuch an mijiariial account as Uiui
pirtlciidcd Ui he given i but u|»on ibi» depcmta
tiie foHuwiUji^ paifl^rtiph, which ou^ht not to
he let pas% t^itnoiil some reflections.
He coiuplain# tlierr, I hut the un lion Waa too
haalyt tLttii ilid ^oi f/ive thia lortl time to ** re^
ducc thtngx in such a posture qh might be
wialied ;■' and mukeaa tpicry, whether il be not
ihr T — t -r- - t ;^^ irell an moai in>ju)»l (irac-
tir- tti diNCouroge aucii uuntMi't«
Hs ;w U( 4W their aiaater to hm kiug*
1 i Li. L impartial autlior laysthe foubdii-
tim ol' Mb eMumg a^rguiiieiiia j uid rcw»lviDg
to ^'hargv this lord's crimes oti the kjae^J
Hrst boldly attempts to 'make bun a fit bubje
to bear it ; and to leasen his own impeach*]
mcnt, dnius lut one o^inst his GOvereigQp]
that he h i the interest (dMiis king-l
doin, and u is lord to draw him to it.
\\ ith this gratitude, he seldom faiU to pgj|
his in aje City in every puriicul&r; and haviu^
decliired what a protest enemy thiH lord wasl
to the French interest, believing it desUuctiftt]
to this notion, Uf desires^
That the proceedings of thi9 lord may
** impartially con^vlerctl, and see wlk'ther ihe^
have not all tended to the dimiuiTiiting ili«
Fivneb intcit»l since his time; and if ii huvl
diminished, it mit U*' }nmi ht Bnd who Hsi
there was. besiden liunselt, io^Ar liis mige^lyJ
who had power and iuclinauon lo oo <t, !!ec.^'
The issue then to be joinetl, it upon thi
question Ijeggeil, whether the French niivita
was diminished by this lortrs proceedings j
il will easily be granted, that it would oe hanll
to tind any near bis maieatv, besides himself J
that had power; And then 1 hope tl it appean
that the French iDterct>i git!w enlarg:ed in I *
days, it \m us ntisonable to apply his power an
incluiation to be the causes of it, as it is <or hit
impartial friend to use them for the contrary.
I will pass over some instances he give
ivhich cannot amount to the proof of th^
whole ; as, the breaking the league will'
France, peace made with the Dutch, the duki
of Moiunouth t ailed from the French ser? ic
tiie match uiih the Prince of Orange : All
which are attributed to this lord, as the cusloa
is of any reputetl good. At which I will no
quarrel, because 1 ha*e yielded the lH>intf that*]
be had all power ; but I will only put him iiu
mind of tlie address from parnameut to tbM
king to recul the forces Irom France, and thejl
hillv passetl in several sessions to that purpose^J
<*Ten in those years w h* >n the French socledrljl
owed aucceas to the Engltsh. And tbe mar*
riage of the lady Mary^ unhss the consc-;^
quencea had been happier^ might rather
Thought the disposer o1 the Prince of Orang«i'j
to the peace that iblUmed| than be a preju '
to the interest of Fiance, which prosp
most aAer it.
Iff theaatoe paragiaph, it is said, that everyl
one knows that this match altered the mtndB uf 1
the duke of York and duke of I^lonmouthp^
that from being the greatt^t a«»erters of thf
French interest, they became as forward
any for the war of Frai>ce.
And this conversion, it seems, SM&isted h/l
the power and inclination of this lord^ brought! i
on the actual war with France, for which th«
parliament gave their money ; and by this \
nee it owned, that all were French hut thi« j
U>rd ; and (leojilt; not so mistaken, it i^emagi
that have Ikcu coiiKtantly jcalou"* of it, Ibif <
whether the duken of York and Monmouth
I,..*.. ......... ,-. •» * k huu for dechiifv
uot; since he <
ii.„,i : : ,... , . J. uichwefounddUi. . ;
but Douc on tbe contrary by the coot crsloQ :
667]
1 JAMES II. Proceedings against Thomas Earl ofDanhjfy £668
And then he says, the kin^ had good intentions,
&c. which implies, that he never bad any good
before ; as if he had now drawn him to his
kingdom's interest. And as tliis lord was
pleased to onler it, he never appears to have
Detter after it : For whatever lie is accused of,
he charges upon the kins^, and acts as if agreed
with what he pretended to know of the opinion
of the French, that they had the king*s person
and government in th*«s last degree ot con-
tempt.*
I Know not whether that lord shrunk, when
he spoke those words in the House of Peers ;
but next the owning of such an opinion of the
king, it was an audacious crime to own a be-
lief that any could retain such a judgment of
liim. I hoiie this lord is the only person that
thinks it either probable or possible.
But leaving this point with blushes to hare
repeated such a thing, I will set down some
(^neral observations of public aflhirs, which
will best shew whether the diminution or in-
crease of the French interest, was likely to be
intended or effected in his time.
In the first place, to lay a foundation to build
lipon, T suppose It WYxy be taken for gpranted,
that the parliament did ever appear warmly
averse to that intere^it : and of consequence,
must give the greatest apprehensions to the
French, that from them might proceed tlie
only fatal opposition, and which was not pro-
bably to be diverted either by skill or money.
In March 167G, the Commons in parliament
E resented an Address most humbly offering to
is majesty's consideration, That the minds of
his people were disquieted with the manifest
dangers arising by the growth and power of
the Flinch king, &c. And tlierefore humbly
presented their desires, that his majesty would
strengthen himself with stricter alliances, to
quiet the minds of liis people, and preserve the
Netherlands. The king's Answer a'jrced, That
the prciervation of Flanders was of great con-
sequence. Hut it seems, not beiii^r thouirht
particular enouuh, it begrot a second Address,
on March the 26th, wherein tiioy again more
strictly pressed the kin;; to enter into s:i'.i;h
alliances as might obtain those ends. And in
case, that in piu-suance of such alliances, his
majesty shoultl be engaged in a war with tlie
French king, they promise chearfuliy, upon
notice of it in parliament, so to supply the
king, as that he might pniseeute ihe same with
success. And in tlicir Address of the 29th of
January 1677t they humbly desired no treaty,
but such a one as might put the French king
in no better an estate tlian lie was alter ihe
Pyreneau Treaty.
This suffieienily shewed the temper of the
parliament, and their jud^rnieiit, thatwHr itself
was more suitable to the mterest of Knglantt,
than the grow;h of the French pciWir. Hut
tbiji bei^ot j^reat debates, and sheweii so many
ipflueueeil, that they appeared ill witnesses for
* fc^ his Speech in the Bouse of Lords at
hiaChai);[e,p. 627.
the boasted power and inclination ; and pre-
sently after, while things of ttiis great nature
here had heavy motions, the frontier towns
Were taken, as \ alenciennes, and St. Omers, &c.
I will not delay, to set down the paitioilar
reasons and arguments that were raised against
this constant sense of the parliament ; nor the
sharp reprehensions tbejr sometimes receiTed
from the notions, of therr too- much invading
the king's sole power in peace and war. n
shall suffice to observe, that those reprdien-
sions, ara^ments, and delays, did not seem lo
tend to the diminution of the French interest
But to proceed ; To make it yet more clear
that the growth of the French interest nd
power was nourishetl in the time of this loid^
power and inclination, let it be fairly examined
what proceedings here could most farourtbeir
fip^wmff ihtcrest.
I will presume then to assert, Thait nothmff
could contribute more to it, than alimeans nses
to hinder the parliaments engannc* the king
according to tiieir judgment : And probaU^
since it appeared, that notwithstanding aO op-
position oy debates, and displeasure shewed t^
some of the addresses, they rather grew more
warm than cooler in the pursuit ; what was
left, but frequent proro^tions and adjopm-
ments, to divert the weighty stream ofm
parliament from mnning with unreasstaUe vio-
lence against the French interest ?
Mr. Coleman was of this opinion, as plsioff
appears in his long letter : where he sajs,
ITiat it was their de-ic:idancy on the parliameaC,
that encouraged the confederates to oontiane
the war : and that their dissolution would break
all their measures :* And there says, that the
^ooA father he writ to before, so concnrred io
nis politics, that he assured him the king ot
France would assist it with his power and puise.
And a little alter gires an account of the nsefol
prorogation to the 13th of April, being toadiy
so high in the spring, that the thrifty AlonsieiiT
Kuvigny thought, wimld put the oonfederato
beyond their measures : And it apjiears, tbii
lord concurred also in their politics, that a pro-
rogation or adjournment WHS ever a help at a
pinch ; for in his letter to Mr. Montagu, dstsd
the 17th of Jan. 1677-8, he says, Thattfaeprin-
cipnl cause of the adjournment for thirten
days, was to see if an ** expedient for peace
might be found in that time ; and the efet
of the adjouniment hath hitherto been, that
no body ^ill believe other than that the peace
is already concluded betwixt ns and France."
I will not here set down the frequent adjonni*
ments and prorogations that were nude, bat
only .ibserve, they kept pace with the socoelB
of the French, and were most frequent whea
they were most prosperous ;*" and that diil
ha]>pened in the years 1C77, and 1678,
the power and inclination was boasted of;
in the same years the French grew so enlaivcd
with success, that it is improbable anT, fapt the
* See Coleman's Trial, vol. 7^ p. I, ^lUi
Collection.
dated *
em-]
Jttr High Treoatm,
A. D. ie7»-.168S.
C«70,
'That in Ihi* lonr» thtie H
ccincpro<*t! pArtr, sliivu!il immeitifttely ttffirm,
ill ' :n '* umk'd to the
fill _ vf-^t in Ills time.'*
irs,
,.vSt
g, . , , . * ' ' ' li.fe
|4i near hi* mnjtasly,
\\ii.> ; .,. ^' *" **<^'''
1 came i.
this lord'** p
log: ihe Freiicli Jf^ r which
littstencdy or nitUef ijet!es>^ittitdi t»y iliU hint's
power siml incriniition j t'»r ii were hai-d lofind
Ciy oihiT abtmt his Mnjcstv, that could or
Ontd bft?^ cndeavonrrd to na?t> Mr. Bloota-
tfii ' ^ 1 ; and had he
Ti ifflrms, That
lilt' nil lavL' norue ft wise and
ujieful ill to the kln^ and king--
dotn, I y so nuusuaia viuleaco
bikve ii i his oivu oploion, which
U oon! sccresy he enjoins the
An 1 1 .J . ; : 1 e negiotiatiou , tbr fear of
1 ** 1 1 1 HI e I i*^v rn et h od , not to del a jr
upon iv . irticulaVs and drcumstances,
where the t jgl*t jud^ititnt must be drawn from
the i^eDeml, nhich is thestibjecl mutter iiself ;
as, that Mr. Montana confess^^s y^reat homjur
in this lord ; and thul by a leitcr to the king^
liiimelf says, That the carl of Danhy might
hafe had more than cTer he g"ot hy bt'mg Lonl
Treasurer, if he would have prevailed with tht*
kii>g to aurree to the propositions of the French
king ; and a little after cries, *' That ii* the
minifitertt iiitcndef] the settii>i^ up an arbitrary
|K>vrcr»ii h-.in. tliiv wonhl certainly neither
note <i . inch king, as they have
What cli ij grvw this
tord in fan i opinion the
r I of him, wiiA oulv Uidde io a reflec •
1 1 i yam em hrr o f l h c H ouse < »f ( > n t -
ino«St when tht' ' »^ read, T1
French had an ,tm that i
Ifas nr' " I! Litiirf, ho was ronhdeiu In^
own 1' d, thai thev had reason now
to ' vm ot'htm, Whnl tlje
h I ir \\'^% huw my lord of
iJiiii.r, '^^'^nvy, weknaw noi ;
Uut it now, that rniHif y
It lit r,.
%V \.\^n tlir'.il
J' y, wliy 11
If Ibis he « gtiod coui«'<iuriic^| Tliftt li» i
iLr
VfUieh nil
c*pt French money is to enslave the natian ; 1
hope it follows, that the sum of six milKons Of]
hf res yearly, to he paitl for ihr«»e years, and of- f
fercd to Ik? acct-^i
ThehistEvi^i
is now olfereil 1 1
of MftZ^ariue*s I
ill will the Freuclj *i4i.. ,,.. xx,,^ ...tn
other being a place where the pre^r
:; n!j:iv^iwl(»r [i** apt lo Speak more:.
I diHCOursesas would couvince an/ j
h the French Gazettes g'aTe audi an ac- i
rount of him, it is an«vrered as the oilier was, j
That they hud no such occaMon now : And fofi
the other proof, 1 hfivc heard that the dutcheiil
of Mazarine's chamfwr has been more used C^l
the free discourses of the confederate minis* J
ters, than the French atnhassjidors, Bq||
among' these weighty arguments andeWdences^.i
I ^ ' -it is omitied, that this lord drimk*{
io the French, at the late bishop oCj
4 ....... iity'g house at dinner; and I think it i
full aud cogent as most of the others.
Bm I :nn lUiw tirnii..lit .'iri^e to ilie matter^
by <! n things:
Fit , ^ us sent, was onl J J
a copy of what Mr. Montagu wa'i to reccivo^
from the secretary j so thai the thing it&retf waci
uo secret to them,'*
Thiii argrument seems very strange, beoau
the secretaries knew of the propositions for tli€
peace ; which was likewise ktiown to the fa^
reign ministers : Ergo^ the treating for
tuuch money for three years, to l)effet a iij»h|
temner iu parliaments, was no sect u^
neither, titoujfh enjoined to l»e so :
to i}y' ' - •"v ; the logic would hv »■* u^^J^
to 4< lat he that ktions sometftii
know.. ... i,.:j^^?i.
In that letter al**©, it is fit to obserre, th«
the kirii/ h;is ^^iifncit titlv inforroe4^tfiat th
Frei 11 the terf^Rcnt by!
ttie it not fit toUov lull
lily received, n
V impowered to j« >f ;
lfc:;ii the liuic lihouid be lost of efleiuu^ the
l>eacc ; llmt is, for fear the market shotdd be
uiiHsed of com I somudi mou&y, as
inl;ht secure ?> troubles of parha-
r \t.iis. And if adjourn meiitl
is have U-en the u*util prudcnc
*<njLiu V i* *^i'il'biiu»jht dis^otuUou jfor thr
yeixi* at least) must needs he thought admirH
able politics*
Tiic second is, "That the Propositions were
not *wii»iiially iIk' Mh "^'s, hut the cunli^leraies ;
so thttt the 1 10 truiu nothinj^ !>▼
mnkinr T!ir i -r hig^her or lowrrr
I a oil '■ \i haii oitcn c\pGri(inve that I
' m?>; ' not do uthtTwav**"
I Olid way of arguin^J^, i3( r
Toer, anif hetrs cijual resii. »
'\i and nature of it j for it i^ ^uU
1 unoil tbts Pronositions, that they
I >vcre on jrinally the confederate*; who at that
time ircre loo much tltscou raged to hope or
#71]
1 JAMES II. Proceedings against Thomas Earl qfDaniy^ \SX
propoM any thins equal to the common in-
leriift: aod therefore the market was to be
made up in the prerenting that which mifj^ht
raise their spirits, the meeting of parlia-
ments. Which Mr. Coleman (whose policy
ai^reed with this lord\) declares to be the foun-
tain of their resolotions. 80 that the logic ap-
pears this :
There was no markets to be made of the
propositions :
Ergo, There was no market to be made of
parliaments.
The third continoes in the same method ;
which is laid down as a fnll jw^tification of his
majesty's honour in that point, and that he had
no design of {settinir the money for the pur-
poses suggested against the carl of Danby ; for
in that case, he would not have considered the
Sin or loss of the confederates. And Mr.
ontagu is expressly forbidden in the letter, to
mention the money at all ; in case the French
kiog did not acct'pt tliuse very propositions of
tlie confederates, and in the terms as his ma-
jesty received tliem from his ambassador at the
Hague.
I'hls argument also is like the rest, groimded
upon the propositions ; and is made to prore,
that the money was not designed for ill pur-
poses, because there was so great a care ex-
pressed of sticking entirely to the propositions,
tture he forgets, that but a little before he says,
that this lonl in his letter assures him, that
they were sufficiently informed, the French
desired peace upon those propositions. It seems
strange then, that the justness of sticking to
them, should be so insisted u|ion, when the
.French liad gircn tlieir jiemiisisiun by the ap-
probation of them.
I wish, thbt in this paragraph, the argument
and respect for his majesty's honour bad been
better defended, or wholly let alone; but first
to bring the king's honour in question, aod
then to argue so ill iu the defence of it, wajs too
great, tliough not e«}ual crimes ; fur no guilt
but treason can exceed or equal that uf too
boldly meddling with that sacred subject.
The fourth is a new sort of argimient, from
the last wonis of the letter, where the earl tells
3Ir. Montagu, ** That he believes that would
be the last time any proposals of |>eace would
be made ; and that lie is con6d<'nt they uill
not bo accepted ; wherefore he iniifht accord-
ingly take the kind's measures and his own."
How to apply this argument for any use to
this lord, I know not; it only expresses an ap-
prehension or opinion, that the proposals would
not he accepted : sure be cannot mean the pro-
posals that he says were received froiii the
confoileratcs ; for those, he was informed, were
desired by the French : it could be only ihe pro-
positions for the money, that probably gave
the apprehensions of the refusal.
AttiT these four Observations, he procee«ls
to that expression about tlie parliament (which
he supposes has been a prindpal causa of giv-
iDg them offence) ami ptainly avows, that be
juShiMnl thb Mf^f «M>W W««9 «^"^
V
that ezpreaaoD tobeuaed, €bIj §6tm
persuade the king of FiBDoe to sivcp _
sum than six mifliOBB oTItrres, iraich tbea had
been offered ; and becaoee oClicrwajs is the
ill posture things then Hood beCirist the toe
kings, the Frendi king naiglit auaptci whrtfav
the king of Engtand would agree to any pesce
at all : and these bemg tlie wbole conirats sf
the letter, and bein^ writ by hii muef^y's ex-
press order, yoa will easily eoodnde Ibis M
coold not be so hardly prosecuted for tbatoelT.
were there no other cauaeo for it ; when m
truth he believes there are Terr few snlyeets,
but would take it ill not to be ooeycd by thck
servants ; and their aerrants miff nt aa justly
expect their master's prolectioB for tbeir obe-
dience."
Before 1 enter apoo the nr^gamcBt of ifcii
paragraph, it is fit that I ahould ficit avoid
the crime, that I presnme to condemn in lUs
lord : For if 1 should endeovoar to prove lbs
thmg to be ill in its own nature, and by
leave the king entitled to it, I sboal
the guilt 80 common lo this lord, 1 lyll thcit*
fore, first endesTour to do myBetftliat jmtrv,
which the law does the nation, to aepnnte the
king from wrong or dishonour ; and I viB
after, in a more proper place, examine the ir-
gument drawn from obedience.
1 need not go about to proYo tbe well kaomi
maxim of the law, That tlie king can do m
wrong ; and if he cannot be liable to do wnMf,
none can entitle him to be the author of «nia{
done : aod this is not only matter of law, brt
grounded upon prudence and neceaeity ; Ibrlo
allow it to be possible, that a king could do m
wrong, and yet that he is accountable
but CSod, were to grant, there is a 1
without the compass of the laws > and it wvic
rational, if the king coald commit the of-
fence, that he should be subject to men to
judge the punishment : Therefore jostly it *
saidof the ancient lawyer Bracton, who wiole
in Henry 3d's time: * Ipse autera Rex non debet
' esse sub homine, sed sub Deo, &c * and bf
the same reason the king's honour ia as littM
sul^ect to men, as his person ; accordingly tbe a
act of the 13tli of the king expresses a cats '
of the preservatiffu of his majesty by dechf-
ing, that in his honour and hunpineas cos-
sist(*d the goml and welfare of tiis people, so
that of conse<|uence, any one that attribiitit
dishonour to the king, is an offender against tbs
good and welfare of the people.
On the other side, if any nirourite or cooB-
sellor should be dischaiged from ill aclinai or
counseU, by charging the king with tbe al-
lowance or knowledge of them, what an ca-
couragement might this be for guilty men, sal
what an asylum to ily to when the gttlt if
committed ? In the same act there ia a beary
sentence on any that shall say the king is a
Papist, or shall any ways, by won^lnr writiofv
pubrmh or utter any thing to incite pcofde la
the hatred or dislike of the king^' nenoA. I
would desire any to conaider, whctbor eof of
^ crimes would be anawerad byaliebt
6TSJ
for High TttoiQn^
that wtiat was mid, was S|#oken Uy tbe Lin^'t
knowlpd^ mill alfuwrrtieb ; it ivoutd njipe^rf
ih« kifiif thai c»n do nci i»'inn{j, csinoot nraw
ibe wroDg done tu him aud his i^i'nLtlf'. if rhiti
fliwuki «(»p«iir rigorous to !<cin Ijut
eifiMilly compre ihe iucam , on botb
•Mcv^ »oil it wilt appear bv ilitE» uuy, ^ome |>iir-
licutar wen of shaken coti^cienors aud prtn-
Gip<iN9 may aiilTifr by their t>*vu folly ; bul by
tbe mber way, the public oaoy suffer under the
pn ijilt vf a^ew corrupted or ambi-
tin-
AiKi since in all ftjf6» it appears, how tofl
men are to the imprasiioiyi oC wealth and
power* how Just wilt itaeem there should be no
fvcuse for itlconiiciU ; and Iho^that will an-
<}i>ftuLi> \\\t» %i\r%* uf iTj-eat tlii^^'''^ Jitnrltt Id b*far
lli /Vrdoftbt' tit I this
W" 1 I It- care ot d ^ ',and oj>-
fKwng \\\\ Mod (Treat men would finil il l>eller
and safer to depend upon thi-it- own virtues,
tllAn on their flatteries ; und truth will then
ftpp^r the betft policy* when laliibnod becomes
the greater daii)jforl And I wilt rent ore to
add thin farther remark, That this lord batli
been bolder in thia way, than erer any subject
waa \ ami vt took^ hke au ill retin^n to hia gra*
ddtia and bountiful m&ster, that he never cd>
litlct him to any thiny;^ for hts honour | but aa
1 6bierved lieforc in the busiinesi of the gold-
imitliv, he wholly attributef» the good
to hirTt!»elf and would niiike the king's
purcha^te hit honour and iiaieem,
I \\\\\v heard of Kuch generous fri^ndi that
hn \ themselves with their friend^K
nti , to make theinKelves cnpahle to
aulTvr tor tlietn 9 but tbia lord haa not ucted
ao for his king^ ; but ou the contrary, would
fix ill thinipoii him ; For if what waa ottarured
opon him had been avowable^ there was no
■e«d to make any oilier plea^ than what mi|^ht
ffooeed fnmi the ntUure of 1 he tilings.
This hrinifii mc to conttider (he ejprefisioti
about the paiHinment, which he mi^ht justly
indeed auiip^ise had bec^n a principal cuu»e of
^rin^ offence.
Having* now with just duty iteparated the
k'tngf from the eor»eeni of thin matter, 1 dare
pruc'eed to consider it with the reaaoa of the
P«ragrapb«
1 a^ree with tbe author, That the clause
liiat ufavc the parlianicnt otfencc, Hie roi^ht
have added, and every Lnghshman that taad it
beaide^) was thia :
'* InCAMi^ the ron4htton« of the (leK^C shall
blSBCCe: ' 'i hllVC six TOlU
lionaoi ^rs„ from lJ»e
time tUui in * he-
Iwixt his \\ < \i ;
becauKe it Wi.i i^ ...., ., l^.k^ ^... - .- -t,tt he
«an hope to frnd hi?« purhanieiit in nu humour
10 i^iv*' hitii MiiiitilH-t. litter the having made
any peace \v i **
rherea»r>t[ ^ r thia cUutae ia fenwrka*
ble ; that it wkk mnerted uidy Xw a tOOlive to
penuad^ the k\n% of Tranct^ to give a g^e^ter
fam tlian sii lodluHia ^f Urrei| b«catiat«Ch«r-
VOL. XL
A, D, 1678—1685. [6T4
wt3ie, to tbe ill posture things stood in, th|
French king- mii^ht suspect u hethcr the king
of Eiig^lnnd would agree to uny peace ;it dll
I cannot iuiag'iiie the force of ihiK argii^
ment, unless it he to shew, thnt there wjiii no'f
motive to the French kin^j to give mone^
largely, nor to make him bidieve the kin;f
Eoj^laod was Ornt to him, but the coudiUo
of keeitinc' oflf purliamctits.
How clearly does it now appear, that tliii
way only the French believed their ioteresll
was to hie supported ; and as if the old artf ofi
adjournnients and prorngntions had not beci^
sufEcieut, it ia pr*ifected now to let a lease of^
parliaments to the Fieoch for three years |
and it is reasonably gueswed tliey would hava
been out of humour to ([rant supplies, wheal
supplies were gotten frotn others 10 destroy
them ; but bow after three years tbe parlia
meot Khoutd be brought in humour, is oot
be supposed ; it is more probable tliat
lease would have l>©en renewed.
The next <»hjection to this letter fhe sayf]^
has been, that it was writ tbe 25tb ot Ularrh^
1678, which was five days alter the parliameni
hnd past an act lo ruise money for au acta
war ^vith Fnmce.
This is coatessed to be true ; bul answen
Firit, '^ That an act to raise money for
war, is no declaration of the war.*'
But that at5t was grounded upon a me
from the king to the parliament for an acttii
war, and it was so declared to lie by one of ih«
tecretariefl in the House of Commons : buj
now it will be hard for this impurtiul frieiH
to fiitvise hi^ b>rd which to stand to, wbethe
the king was author of the message sent
tho secretary, or of the clause in his Jetter'i
for sure, tlnju^h he has been very bold with ih
kiuf^, yet ho would not make him own contr
dicijousiitthe-p
The second j 1 siich deetaratioDt :
treaties are l;>v ' then loo, if thd
kiniif pleases, m jiowerof mak-«
ing peace and w. I «^ ii.^ V ^1, l.iw.
There is no qucstiun, but in Uie tiaie of wa
declared, the kin^ n^uy tit>at of peace ; bu
whether thi)i lord may treat for it in such a
way, as by thechiuse of the letter, b tbe more
prtjtH r qiiestion«
Thiidly, ho says, that the king's amb«s«i.
dors were then at N iioo^uen ti*e»iing ot * ^ IVaec,
and were indeed nevir reculVed, nor forhnhkii
to treat the peace ; and cau it he thoui;ht a
fault, Ibr a minister to obey the king's orders at
home, on the same sid»ject ujitm whicii otlicr
ministers were actii»g at the same time
abroad/'
This is the usual nianner of arguing ; hut
it alfonls some new matter of answer, which
ariMs from ohKcrviufTt i*iat the mmisU^
Abroad tn^teii upon tlie *ame subject b« thia
lord did at home ; which impHcs, they all
treated for so much nioney lo be the prioe of
parliaments, or tl»e thi^ minister may be ia
fault, thou^fh the others were not : but I sup-
auae tho muiiatera ware Dot ao bold upon Ibii
\
aT5]
I JAMES II« Proceedings agqimk TkomoM Earl ofDanfyf ||Q7lt
poiBt ahroai), aa tbU minister was it borne ;
and if'uot, the arguinenl issftan end.
Thu i'oiwih argument i« ooB*pofieilol''nopeiR
mattei', till at the latter end it is. saitK that bad
it heeii u crime, his luajk^sly's aaihassador at
Paris iiiu!!>t Ik; iti am much (if not move) fouh
to have olu^od the king^s orders at second
hand, as this lord \v'as, to obe^ his majesty's
immediate coiiiinands from his own mouth,
and sicklied by his imiid.
1 1i:fve bdidrc taken uotiee how little it adds
or difiiioisiies to any oirence, to compare it
with what others have committed ; it bein^
Only Just and proper, that every thing shouw
boar itji own we^ht : but if it were not so, I
should not tronbfe myscW to dispute whether
tiie same I'aoil was j^reatcst iu the first or
second concoction ; hut ]M)S6ibly the first misht
be the adviser and obcyer both, which the (aat
oould not be. But perhaps the meaning of
this is, tliatthe ambassailor had been in the
{O'catest fault, if he had believed this lord, tliat
it was the kiog*s order. But Mr. Montagu
did not seem guilty of such an error, as to
believe so much in this lord, or so welt of the
business ; yet in his speech in the iionse, as
well as in liis letter, he affirms, he could pro-
duce the king's hand for the most material
things, and particularly for the letters now
made use of against him.
1 know nut what papers such a one, so great
iki the king's trust, aifd who usually presented
him with so many, might get signed ; hut be
had shewed the same respect to the king to
have publishetl them, as to own he had them.
Al^cr this, he winds up all upon tliis sure
bottom, in these words :
" In short, it would be ill for ministers of
•tatc, and worse for their masters, if the one
may not command, and the others be obligped
to obey, &c."
Though this argument of obedience has
been often used, I t bought here would be the
i»ro[>erest place to take notice of it ; reniem-
brring a little before he says, ^' there are very
few subjects, hut would take it ill, not to be
obeyed by their servants ; and their servants
might as justly expect their masters protection
tor their olieiiience.'*
I desire any reader, more impartial than
this author, to consider the falseness of this in
every particular. FirA, sure there are few
masters that would expect obedience from their
servants in unlawful tnings ; and the servants
could less expect protection, unless their mas-
ters were above ti«e law. The groat master
of the i.alion can jrivc uo more protection, nor
refpiire ui(»re oljcdirnce tliau ihe laws of God
and man allow. If olteditncc is the excuse
of ill act.9, it ci?ascs to be a good duty ; and if
absolution be tixt to obedience, all crimes have
lost their natures, and counsellors should only
be sworn to a priucc's will, and not his inter-
ests. If a ])rinee of another religion should
command a change in me, would die obedi-
ence be a good plea at the last tribunal P And
4Ae iwa$on lioldi the wm& in crery letter
baft Ihia aigwneiil of Mieh am iMpU-
cit obadiewe, is only put iote the rtiajgnisa off
oonsdeuce, to prevent tha true obedieaee aC
Christianity rather to sulihr liuHi doili; boi
sucii a notion of ooiiaeieBoa ia nuioh WM«
pleaaaat, that ahelteia intareit and wmhitM%
rather than the olher thttt cocpoaea then l»
iiazajnl.
1 have iK>w gone thratigh thi« lord's pav»
foraMocea, in the tieasury and atale^affiura:
aniLas for that which fiiU^awa, about the nafw
der of sir Edmundbury Godfrey, I aawly
agree them to be libeb that obarge this lard
with it; and think it must be aa aocu"''
against the witnesses, jia^ea, aifik jury.
L ier my part oMst confess, that U>e i
appeared to me clearly and fully pfovcd.
As to what relates to the Popish Plat, 1
leave it to others that know oiore ; boC pva*
tending to meddle with anv thing thai 1 hai%
not hod some particular knowledge i« : mk
therefore shall say little ta his coucftndiog ar*
gumeot, u)K>n an objectiou raised hy hiiMsK
*' Why an innocent m^a should withdraw*
frum his trial; and thoA upoa hai ayycig
ance, quit all delences, and betake hiaiwlf
to a pardon ?'^ But thia particular, of nwfci^g
a delence, oir relying imon a pavdon,. hdangi
only to tha lord hiaMelf; and l» drajw atg^
ments from thence to iiaidy ft guilty waaM
ratlier shew a desire to finda chiB% tfam prsft
it. . Nor will I meddit with tha natortt af bii
pardon ; by what means ohtouiad, o« hasF
▼slid ; that must be coasiderad ia a bmr
proper place ; and it were too much mnftdcasa
many single writer, to anticipate a
ment's judgment : but thia impartial '
taking it for granted, that he has made it <
dent that this lord was a good minieter and a
rd Eoghshmau ; he conc1udeS| that it w^
reasonably objected from thenor, why a
man so qualified to defend himself, ahonld qaH
all defences but his pardon : but it* by the ob-
servations that 1 have made^ the cxMitrary doit
iip[>ear, his pardon was certainly the beat d^
fience to insist on.
The conclusion of this whole matter briagt
me to my last Observation, upon the coraplanl
made, *' That innocence is no |»roteelMB la
firince or subject:" for one, he mstanoeslba
sst blessed king ; for the other, this locd ; wai
makes the severity of their cases equal. Ibia
iudeed, if true, is a sufficient anawer Ar
pltradin^if his pardon, when his innocency ooaM
be no protection ; and agrees with the fbaa*
dation laid down ia the beginning, **Hiil
malice had loo great a share in hia proiaca-
tion :" So that he returns a charge npoo hia
pi osce.utors, the Commons, for malice ; . aad
a^rainst hisjudgt's and jury, the peera^aa aa
regardcrs of innocency: though in tliialocA'^
cose, argiling against the libeHeri, that woeU
fix iiir Ed I uundbury Godfrey's death OB hiM|
he says, in tliat they diti accuae the witoeaei^
iudge and jury, that condemned ethen lor it a
hut now it seems be arguea another wa|^ all
alk>wiiig ao much ftfour 19 Lorda a«lta»
for ftfgh Treasm.
\
mons, »s to die others. Nor dof'9 lie (teal lets
!H>f«lly with all kings, and their rep rtut ions,
Uial com*? Id hw «f«y - n\Km this kintr h« en-
deavours to fii Hi; * ' , : I ou
Irim; and with li ,iv-
twr ' 'is owu : iij it nature
ftr i,n first, a itcd the
rtLiMu, .« i,tiic->t: ul' the Iw?* uiu uie cuaipa>
1 liavo not Mf'anlf^d rr-^^^^^invn^, tbttt it seems
•ert^re to endeavour I ^littothe un-
fortunate; ntid were r aiise g"ivi'D, I
shoald censure it as a want of jjt-tjetosiity to
«av any lining, though trtic, that might fidd to
Affliction : but mica it is chargi'd upon afl,
•* That maHoc may hftVe too i^feat a share ro
fh I hon of this lord;** I [iivfurred in}
tflr pubhc, before any purticnlar eon*
«ider:iU*»Ej ; m [irewutintj these oljservalion*
if> inform them of (hobe triiihs, v\)iich by so
many disg^uses arc turtMnl into ma54|ueradi',
and ncedo^J soiue ihai v»<jrc well atquniiUeil
ivith them, to uiake il»e discovery « r - - --
^rtictilar i and tlie rcadev is now left
lurhether they are well UHcdin the proi::
much tnilh, in XhiM Impartial Case oft
of lliioby .
the Karl
£Aat. or DANBY's ANSWER to 1*111
£XAM(NEH.
T * . * tcly seen a nan
*' 3011 of ihe J 01;
** t ;ifc 1*1 tiie carl of!'
td to be an annwcr to
li"
tl
;^ d <* An
e of the
■ "'■■iid-
u:ad
. -.- .w«, iwiule
autlior) to be only a licurritous
rne» every pagie otH baring some-
i nature in it,
learn certainly who is the ji^utbor ;
although he flays be has been rtry conversant
in my affairs ; and pretrnds to bt? ftimbhtd
arith more partic'i' ^lian
?W)or*neD: butt ice
fbr the more specious \<*oLmd::J!;; of iul ^ he-
eatiae it is loo Iciiavrjh a part for :iny body u ]io
V( ' ' Vu^ tor his
•r. -en tritf ;
bin i that it i^
Stupos L-hcquer
4?r '" ,;,...,.; V. UMi(*^r*(if
told no many ut)tr>ithi»
-1 colour to do hi* king
D' ice, in an action too black Ut
1m . I i». Although I mu>»tronfm«,
I kj)Ow not how tur Eiich a man mny go, n%
ftbantfont nM the mfi*** of honour and genero-
&M under rentnimlf tbin|rs
It otto l»c said of liny geti*
tie in tb scn^ihte of thia fault bimsalf, that
H
•Miu
9im
mil , iiini4i 0, LiKii Jit %a>H 11. r-. Lir^jm ii
ifevcry body by the author of the ftat*! of my
A. D. 107^—1685.
case» " That malice may have too great a sha
in the prnsecntion of me :'*' whereas the e3c3
presston in that letter, in intbe hes^inning'of Hi
and B[»eaks only ** of the cause which makci
son\e men suspect whether m»lice may no|
have too great a shure, &c," So dl has that
reason supported him u^ninnt the want of ge-
nerosity ; which oilierw ise, he confesse^jhim-
gelf, he mi^lit justly be censured for. ^
Though he haih shelved hiia5itif ^ vtrf
mean enemy, V*^^ he has betn e*o l:i >
me ihrouj^li his whole bouk, ihnt « ^
reasons and iuicreuoes have been ««uitabic to thi4
beginning ; and 1 intend nottn tronbU* mjselF
witii repeating or answer; or witu hit
frequent comrudiction^ *-i , huX shall
barely inform the truth of thow matters of fact*
whicli the authoi iiasfrdsely relate<l: Havitigp
00 design but to vindicate myself from all as^J
pt r*tonj*, of havin;r done any thing knowiugljl
to t^i ' Tjer of my king or conulry:
'i i > pursued no mt thod ; and
ihen o (. . .Mu--^ .- i"kcu?sed to lake the matte ri
of fact coufnseilly, and to answer them in the
same order as they stand in his paper, .
In the first place, he charges me with ** haT4
tJTg applied 2,? 17/. 5s> lid. to my own Use |
and to have been shotmo (uoeh i^ my account
of the navy;** Which is very taljie; for iha
money was remaining in toy hands, and al-
ways owned by me to be bo. But it is true,
thai his majewy, at my leaving the place of
treasurer of the navy, w*fl% pleased to remit me
that sura on the balance of my account : and 1
hope inn majesty la best judge, whether my
service in that station deserved such a reward,
The next matter of fact mentioned^ ait» to
money, is the IS months tax '*'" ' -'t^!
take noiice of Ids fiuggc?stioiis i
other things, when th*^ ia* ts ;n . li
was payable in fii.\ f
June, 1673. Tliird ». . d
ofDcoemher, 1673. Third of iMareh, 10? 4.
1*hird of Jime, 1674. Thitil o\ Bepleniher,
1574. And I entered to the treasury the 19th
of June, 1(173, ^ tiiat I recenetl all that came
in of that tax, saving what was paid between
the 3d and i9lh of June, tfifS. Jnsoriiuch
that the K:)^miner in that pars^ V r
« peo king t tTU\ tl 1 at t h c w h i)k' - > *
paid in my time; but be«id*f> nit ihm turtle
(juaiter^, which the Hsra miner ciHifc«?se*» were
awignrd by my lord (iifTord, there was also
*ilj6S/, 6*, 8«/'charged by his lordship on the
fourlli quailcr of that tax ; and if the Eaaniiuer
were as knowing us he preiend^ to he in th^
exchequer, he muiit know that the last tbre^
quarters of that tax brought rleur into the Ex-
chequer, only the sum of 565,498/. tSi. ICMrf.
alter all charges dk-dueied r out ot which *ium
i» likewise to be taken tlie atoresaid sum ol
21,1(13/. 0*. Bd,
\^ hen he comes to w hat the king 1o«t hi Hf»
one of tliein was above (H),0(X)/, a year, aud &€
679J
1 JAMES IT. Procffdings against Thomas Earl ofDaniy^ [680
other (Hitiniated to mc by the commissioners of
the ciisto.ns, at 150,000/. a year. And herein
he nrrai:{fn!i his own skill, as mnch as he under-
values the kintf^s loss, hy s;iyin(r, *' tliat none
can ^uess what those acts riii'^ht lessen from
the customs :" Whereas the rouiputations are
duly niaile thereof c?ery year by the comp-
troller of the customs ; by whose certificates
the com -del>enti ires amounted in my time to
more than (iO,000/. a year, for the years 1676
and 1677 ; and what the loss by the*^prohibition
hath aihour.ted to, could not appear in my time.
At last, lie ends that paraii^rapli with an urpi-
mentto cdnfute the author of my case, by w hich
he has done uic much more kindness than that
author did ; for he says, <* it will ap|>ear the
customs never ^ i elded so much as i:i my days :'*
By which he acknowlcdi^es a bt'ttcr nianng^e-
tnent of that revenue in my time, than before ;
and let ^ho the Examiner pleases have the ho-
nour of it, since his majesty has had the profit.
His 63d paire is so full of falshood and ig;no-
rance, that I know not of which there is most ;
for he chai^rs mc '* with hinderin{|f nnoney
from coruinfr into the Exchcfjuer, which was
lent on the fifth part of the excise, and diverting
it to other uses/' which is notoriously false ;
and he says ** Mr. Bartie, or a private letter
was the voucher for the commissioners of ex-
cise plncinn; and havin^f allowed to their ac-
count many liums of money which were paid
Ly my private direction ;" which is not only
untrue, nut utterly impossible ; there bein^ no-
thing'Iess than a tally or privy-seal which can
be such a voucher.
The next Charge this Examiner endeavours
to lay at^inst me, is about the Pol I -Bill, and
that ** because scjrae of the East-l:uid mer-
chants were n'5t paid for S(»mp |!jon(!.> uliich
were contract ^-d for hy the cjmmisviiouprs of tl.c
navy, beyond the suui that act amouLtctl to."
It is in this, as in ninst of the particulars
throua;hi>ut the uhole, both the Lxnmiiier's
misfortune, and niiiii', that he knows so litile of
the matters he meddles w itii ; (or if he had
known lietter, he would havei>;iien both me
and himself far les^; trouble : For as an exche-
quer-man, he must have known, that the whole
bill l>roii;;i:ht in but 2jG,2'2.'i/. Ux. 4(1. to the
kii)<^'s use, of which he churcres me wiih the
rcceij)t but of '2i)%900L in my time, and it
was ail issued arconlinjf to the direction of the
said act, to the navy, ordnance, and forces :
IVhich himself in the last fore|>;oinf2f pa^e,
has saifl could not lie otherwise, so tliat he
jni<;ht have answered himscif, why no care
could he taken by me to reserve inoney for
them out of that act ; and before my gfoinj^
out I had prociireil the kin»'*s warrant for mak-
ing'them a*«sipiment<i upon the revenue for
their remainiuj^ deht, but was removed before
the saiil assignment could l»e perfected: And
iiad the Examiner either hern priv}- to the pro -
ceedinp) of the House of Commons, or tliat
he would havt perused the act itself, be w ould
have known, tliat the parliament gave credit
"^ fyr 300|000/. k money, and ao in-
definite credit for goods and slom beyond the
said 300,000/. so w had theact hd^lout bul
to the money-credit given by it, the East-land
merchants hail been long Muce paid the greateit
part of their deht: and therefore the reader
will see how unjustly I deserve the reflection
made upon me in that particular.
In the same page he does againat hia will
acknowledge the ini<)rovemcnta of the kin^a
revenues in my time ; only he haa no mind
to admit mc any share in the doin(( it, which,
as I have said liefore, I am contented with,
the king's service having been perfimned:
and for the Case of Mr. Bret, kc. it has bem
so lately re-examined, that it has £afficiently
justified itself; and I do further aver, that fan
Majesty did by that contract with Mr. Dash-
wood and partners, get near 50,000/. a year
increase to his revenue of excise, more than
ever any did offer by a certain farm, or than
ever was made before of that branch of there-
venue.
For the impmvemcnts in Ireland, he pre-
tends to know little of them, because he tears
it might be to my advantage ; for otherwise
he seems through the whole, to pretend to
such a general knowledge, as coulu be igno-
rant of nothin;:: in this world.
In page 65, he telU you most truly, " that
you arc not always to appeal to the weekly
certificates for proofs." In which I agree
with him ; for I have bad out of thft exclie-
quer some of those certificates, which have
notbron true, and that to the mistake of 10 or
1-^,000/. in one week : But in the same pen
he takes great iiains to shew, ** that T ooaid
not know what interest I paid, though I migkl
know what I a!>;reed for," which is very rm-
eulouc, fur thei-e was no allowance made for
interest ut' money hut upon an account of the
paiti«-u!ar sums lent, the times of lending,
uiid days of repayment stated and adjusted by
one of the kin:;^s auditors U{>on oath, examined
by the chancellor of the exchequer, allowed
and signed by the lord treasurer and cliancelkir
of the exchequer; and consequently wbai
interest was paid, must neetls be known both
to myself, ihfr chancellor of the exchequer,
and the auditor, before whom the said accoont
is stated : and whereas the Examiner asserts,
"that nothing will Iw found in the weekly
ccrtificaiesof the payment of any such intereit
at all;" it is so much the coiitrarjr, that in
many of the weekly certificates it will appear,
that such interest is therein accounted ; and I
dare be confitleiit, «hore will not appear above
eight per cent, unless it be for some inoQB*
siderahle sum or time.
In the next iiaragraph, he comes to
" he culls the f()undation of all his work, i
sa^s he will furnish the author of my <
with a computati(ni more particular' than
perhaps he desires, and will pull off the
veil ;" which if he had done, he wuoU havn
corrected the author of that cane^ by aettiaf
down a true computation ; as I would ban
donemyaelf.ifthe nid nutlior had
481^
>• High Tr,
me bdbre bi« book ImkI breii prtatc«t : but
there ttr« div^-n* lbtnic« I wotiUl have nltered
Ihfrreiii, liitil I hi^u (he MiUhnr of it, althouuli
1 kunw not otic iiisfh f ..I fad U^at is tiitlrue in
the who^t*f (i n, which
I^Bfede ftjYiicnr ih^l tiific is; ami ii' 1 Uad be^en
^|( friend le^v^ as he suji poses me, that no botly
' WituM haf^ writ in my Jtftiiice, ! ^onlil nileast
I .have Iti^'u my t»wn fncml so tnuoh, as to liave
t down the kiiu)s in it to my ovra ndvixni^ge
pere they had bctri truf, ivnd ho ought
Bvaiuiner to hare iloDe* If he had been
rHe \ny% hrihl c^f a mistake of the author of
it Siure, (tbr I cmin<acall |t an untnuh, be-
u^«; it iH a sum b*^^ than lYie true one, antl to
pfvjudir*; ot' him v/hosc ctae he UL'sigrns
kh to rcpu^f nt) It is a computation the
u iake» by a ccri i fi ca i e of I he
fcli: II ; lor^ituBlarih JG7y,amount-
j lo H/J76,f Of / ; besides inU^t'si to tlieprohl-
iitb^, and other |»articultir8, wliii^ii uiakcs it
J tiircrrtaMi ; and l>csid«Tt tltnt, it euiunteiices
jn a titiie three titottih^ b^rlore my entrance
^he treasury, and is liable to the Ejcamioer's
ril, imleisv by hiftknowtedg:e he would either
le retthtjed it, or his printer*s rni^itake, who
ather beUeve has told the untruth mu my
for be has made it cig-ht milliiui!!,
JHy two hundred ticveuly six thuusiuiil,
^^•n bondred sixty Npven pounds: which
ikc'S 14/276^767/. : But I sujtpubi' he n»exins
I frrst w\\m of ei&^ht uiillions, (*^c. that he may
i better disguise what he there endeavours to
le believed « Mrhii'h i«^, that the rcveoue in
yeiip* and I hi re <|tiarters, viji. from Mid-
nmvr 1673, to Ltidy-day 1675), omounted
(the above sum ol a/i76,767/. ; whrreiw be
imot (io&«4ibly tie so ii;;norunt as not to know»
It what ban arisen f om the rereuue alone m
lit tittte, has not been ne.ii' thai ium : and by
f lloliert HowHrfl'i!* nluXe thereof, Jur fhe year
7>'^Y (^bif h is hereunto annexed) he t4'lh you
FtmcMJuted (hat year but to (J^6»172/. clear to
tiie kin{('» u»e.
tTlie foiiii «W wliicb tbc author of the State
la 3,27fyJ6ll. (acronntini^ fnmi Easter
rS. to Lady-day 1079.) on^lit to lie
,lt67,l2o/, (betwixt the 'JJd o| June 1073,
I Ltfdy day 1070.) He known likewise
wfiiont^mt the ^upplii-s whieb this Examiner IdU
you were give» by parliatnent, viz.
TbelBlkfontlisTaxaxiioutitiu^ lo
'^' ' I buiUlin^ the l\0 Sliipg
i>artoftbe Encii^c • -
i uii Art , * - - - . ^
hnt Act fbr diabaodiiig tke
^Army, and other t^f^^^ . .
58t,a7B
251,900
> 619*388
In 111 -
3,B9(^()16
.Tbattbe ^00,000/., meiitionrd on the 5lii
nf the exciae is - double beiiii^
t of the 619,3^/. (v - »ilful or i*r-
lir« Ujv utiitftk«» m bia yiiJciiJatiofia) aud
A, D- 1678—1685. [6S«
t52»757/. part of the Kaid619,*H88/. is not vwth-
in the foresaid sum of 10t867,l{26/M becuuse
so much of the said 619,388/. wa» not coitiel
intfi the Exchequer in my time. . i
His next head is about secret service^ ^%her#l
he talks of a compound of mistakes^ but she\«*^
not one but in himself; for to mtike proof
what he says, he affirms^ *'- that my pension «
8,000/. per' annum as lord treasurer, Hi& never J
tnefuded in secret service;" whereua it an«|
never paid otherwise until Michaeln;. ,
and liy a warrant dated the 12lh of J ,
which 1 procured to express the pailirmiu ^it-
vice, nor in all my lonl Southampton and iortl]
Cliflonrs times (and 1 think tlie lord« commis-^.j
sioners) was it ever otherwise than by secret j
service; ; so that (to use his o»n, phrase in tliaf
paragraph) it will be seen to whom this iitstance
IS most unlucky.
Jmtoeil he seems ottended that the Exche-
quer does not know ull the ii&cs to which mo* !
tiey ia applied under the bead of secret set vice f ]
which is an imposition (hat tha ExamiQeri
(wbcK'ver he be) woubt be loth to have put upoa'j
tumstelf in hifi own expeooeft, how regular &o«
ever thofie may be.
Forth*; «um of secret tervioe delivered i'h
parliament, I do not know when be means tha
ilehvery, unless it were at the time of my
peach men t, when by the articles of that iin«
peadiment, I was tlmrged \vith hai ing laid (
the sum of 231,602/., for secret service, in twfl
years ; which must then be meant from Chris
raas 1676, to the time wf my said chaiijc whic
was the 25d ofDccembt-r 1G78. But as thafc]
would have appeared to have been a voi
HTonnr computation which was then given
tlie House of Commons, so it wdl appear 1^
sir Robert Howard's certificates, that the £jc«
aminer is as much mistaken in hiii compata-j
tioD of 252,467/. for itecret sen ice, in the spac
of two yi^rs and three mooth^c, there bein^ i
such sumin that time ; butl find '2S'i,467i.
be the just sum accounted under the head
liCH'iet service in three complete yt aiv, vi
from Lady day lU70f to Lady-day 1079, whichil
aiiKMK'U fuit u^M^]5:yL lai/w. a year, andisft|
sun^ ) t hdvethoti^bt a man e>ipresain^|
1*0 mil i; J and duty t*t bis majet.ly, woulv]
have wondcrefi 4it, though it hud aH been )ai4l
out in the space (»♦ three years, w ithout givin^j
liim or any body else an uci^iint ot it; bulj
had there l>een opportuntty for that nccount, [f
had shewed, and am at alftimes ready to ahenrj
and prove,with lu» mnjesiy V leave, that 57.7<)3l«l
at l<^*(t of that sum, iMtti been difthur^'d ioti
public Uiics ; and then the remamiler of thHil
pretended <rncvatice has been at most lut|l
l'>4,704/. in three whole years; which hotl
been but M ibcraie of 6i,9<>l/. (>*, iuL a year,'
Alter all tht'?ie < fHii|intA(it»ns und proola pre _
tended lo by'thc Exununci, heconfnsses, *That"
tiu demon trail te ar^riniient n to he framed
from the par(}i'uktn> Ik^ h;i<i iiieu'ioited, but will
iherefon; betake liim to L^nierak lor the aure
proof of nil/ which I iMdicvc is the 6ri>t lime
of aiicb ati midertakiii^, aad thewi f ufficicnUy
«8S]
1 JAMES It
liow falsely this Examiocr pretends to llie4uiow-
led^o of exchequer accounts.
When lie comes to this " plain aecoQiit of
generals,'* he says, *^ he has a copy of a pSper
Sateil the 10th of June 167S, umler sir Kliilip
Floyd's hand, which wobM not pass for a proof
in this oase, if vt were true ; but that I might
know the truth of it, I writ to sir Philip Floyd,
mnd bad this following answer from «iiirn ; by
which it appeats both now much sir Philip has
been aboseu by the said printed paper, and how
different a state was made up by sir Robert
Howard my then secretary, tne Slst of Jane
l()7d, which was but two days after ray -having^
the staff.
Bated
JL Cojiy tf Sir Philip Floyd's Ltiler,
Maich 18, l()71>-80.
• My I^rd ;
' I have recoiled the honour of yonr lord-
ship's Letter of the t5th instant ; and in an-
swer to it, 1 do hereby assure your lordship,
that I have at no time given any st^tc of the
r^enuc to any person, but to such as from
time to time fuivr been my snperiors in the
treasury. .4iid us for this thing in particular
which IS printed tu a pamphlet under the title
of, An Examination of the Impartial State of
the Case of tlie Earl uf Dauby ; and called a
oepy of the condition \3i' the revenue, as it
was lefl by the Inte lord treasurer Clifford,
and saitl to be procurtd under my hand ; I do
declare to your lordship, that my name is
abased in it. And to coof ince your lordship
^at such a copy could never come from me ;
give me leave to say, that I have examined
such papers as 1 have by me eonoeming the
revenue, when your lordvhip received the
staff, and T find it to he false almost in every
particular. As for instance : I find the cus-
toms were left charged with— 245,905/. 10*.3rf.
hesidesthe weekly charge for Tangier. Upon
the excise I find— 'JO 1,1 48/. iSs. \id. Upon
the hearth - money— «^,3 18/. 11*. 3J. llie
law-bill left quite useless ; and which is far
difierent from the Examiner's printed state.
And then, for the three last quarters of the
tax ; they were not left cletir neither, as the
Examiner is pleasetl to say : For, the first
quarter of those three, 1 find to have been
char^jed with 31,163/. 6*. 8(/. before your
lonlship's time ; and of the whole of those
threo ijuarters, there came only five hundred
sixty. hve thousand, odd hundred pounds into
the exchequer.
*• I could enlarge anon the errors and falsc-
hoo«l of this pamphlet, concerning the re-
venue, in many other particulars ; but having,
as r humbly conceive, lully aiiswrrcd your
lordship's commuids, in assuring ^ou, and
shewing to your lordship, that no such copy
as the Examiner hath printed could conic
from me ; I will give your lonlship no further
trouble with any remarks of my own upon it ;
but take leave only to remember yoar lonl-
flhip of a paper which I have seen in your
*l«Mbttp%lHUKb| oTtalter tothority than any
Proceedings vgamst Thomtu tiarl ofDanigff [jE^
« thing that 1 enn say: wliich » a itiie of te
* revenue presented to yonr lordAip, by nr
* Robert Howard, the Slst of June, ld7^
' which was two days aAer yon etHered npon
* yoor office ; wherem having stated the in*
< come of the ordinarv rovenoe, anfl the ez^
< pences for that year, oy way of debtor aoA
* creditor ; he finds the expelKse woidd ezoeel
' the income by the snm of 1,1C3j400/. An3
* there is do doubt but sir Robert Howard^ wte
* was fVimished with all the.meaps of tnalong a
' tme calculation, did take c^ to do ao. Aal
* that, in ray humble opinion, (mv lori) wiUbi
* of considerable use to your lonuhiis to sbev
' the mistakes of this £xaminer. Iliegyoar
* lordship's pardon for this long trouble ; m
* am, my lord, &c. . Phiup Floyd.' '
Having perused the said ttate of tlie reveaok
mentioned m sir Philin Floyd's Letter, wbiefc
was given me by sir Robert Howard* tlie 91S
of June 1673, and remains in my cnstody,!
^nd it to agree exactly with sir Philip's Letter,
both in the calculation of the expence of the
year 167S, to exceed the income of that year,
by the^um of 1,163,400/. and in the
which were letl charged upon tlio three sreSI
branches of the revenue by my lonl Clilixd;
nor could any cony of the said painted uaper
come from his lordship, becauae there is not
one half of it true : Besides, this Exaraioer h
not only ignorant of thimj^s in die treasury, but
he does not know the officers of it st that time,
for he mentions a Letter from Mr. Monntensy,
dated the lOHi of November 1673, and saytit
was directed to sir Kobert Howard (ftenie^
cretarv to the treasury) whereaa Mr. Barlis
was then my secretary, and not air Robot
Howard.
The Examiner closes his report oonoeninf
the treasur}', pages 76 and 77, wherein at
pretends to shew : First, ** that the revenoe
was left charged Avith less than 300,000/. (ad-
vance-moaey exceined) at the time of my lorl
CliffonPs leaving his place. Secondly, that
there was 942,500/. then left in money. And
thirdly, that the said revenue was comi^iited ID
be let^ cbanifed with 1,485,570/. 16s. 4d. ai
Lady- day 1673." I suppose be meana 1679^
when I was removed from the treasnry: al-
though I could no more know be means that
timcby the computations he has made, than I
could by that year of our Lord which lie Ins
printed.
The first and secon<l of these are proial
fi-oin that cony before mentioned, pretended ta
be ti-om sir Philip Floyd, to vrhich air PbilM
answer has been seen, and consequently ttft
truth of his sure proof: But tliot it may h^
truly known how the three great branchai
alone were left charged by my lord Oiiferd*s
own computation, it is therein set down that.
The Customs were then charged ^. 1. dL
with
The Excise -
The Hearth-money
Indl
245,905 19. S
201,148 19 8
28,318 11 t
^409,«r8 an
besides tliAl the wmftllBr bnincb«s wero !«fll
ukIc0 fr 1*.*^ '^ruj year: Ami in the same
c<nn|iul: h f have in my custody^ it
1^9 «tinit' Ibr ibe saiil yuat ot ihj^u
tboft: COtiiti not b^ f X(>««ie«l (of i\%*f si^rricu of
that ycjir from the nCni^eiaiil Usihms ffi^fti
bfiQCDci, aoy niorc tliati 746«03'J^. nTuT Uit*
tltihlishment of tin* coi»«tanl \ejiriy expvncc
R(lc« the firrciit »mn» aifmg''at thnt time to
iievt rnitl urmy, then iu l^ini^ for the said
) fttdouiiteti to alcove U^OO^VOOL ]ier aiiii.
here f miifit \mvc kuve ta oWrv«, Ihni
it not bcun fiir'*! ^ ' ' war a^imit
the Dutcfai, it muM n^^ tlmt any
tllA ie?eiiiM io the htgu
Wbinll mas «fi soon Jiti, ,i ;. . ., ^. ^ ^ ^.
tile kiiiu > hen the cretlit wofi to
Nrolbeo, t , ic ivhoie year of 1672»
I believe there wa« not flO,0tX>?. hotfwwci Oft
the cretiit of the revenue*
.From the «anDe copy u£ what tie calls trr
Fliilip rioyd's papier, aivl hift sure proof i;fall>
» oiadB bis next etklcubtion ; thai there was
Oi%SO0/. kfUnmouey ; viz.
B^tfaelamdquartei'Hof tfaeTajc - iOa.OOO
Frotti the advance of the £3reii6 - 150,000
Frirtu the Frtnrh Monry . . - 112,500
U|M>a the 'S ((uartfir^ of the Subsidy tu#,000
In all
94«,^00
At to the first of these sttnis, (i^ 1 have $aiil
alfettly) tbe Mid last tlitce i[iiarteTi breu^bl
ta clear to hia niajeaty^fi use bul about
565,49B/. ; which ia abotit the sum of 198,499/.
for each 4|uafter one with aiiother ; atvl the
QnH of iiwsm quarters waa chacflrcd wi^
9lfl69/. and waa aut payable till ^/n M €€
March follovk^i * ir.h was full ifavee q^tar*
lerx of a ycr. ^^ hu4 t>aieea ikya) b»^
fore i couhl tr^i^irui. tbe &ni cfmrter; wbidi
^iiaiildtbcM ba dear bul t6t,3A&L: a^ y«i
thi«EzMaiiMr»deAV^ »••&< ^^^niiileiicetbo whole
O0a,000/.tob«|ef:
The three laaK b^ < „ the adtanoa, the
French money, and sub'cidy, nmomtOmg^ t»
^2JA}0L he aays, ** will be r ady m Oetobnr
I A Ah* payftieot of the fleet and
NUfiaii the greateit ptirt of adfanee
lay ^aea^ always iu repnymcnt of the fur«
•ilfaiieea» m case of wjw fannr i*?s and in
yn cocilbiMii hy old farmera ; btit no iww
^^^ c?y advancrrt u it less Ibera bo ao ioerttaaa
^Wadv«T lit that tim- i do
of 9hoin li aim c< he
M.iiiiiM^ui»rr ui
MJ.Jl,
ihai
Foctbeffeaeh immey,
oa neivtftit v* i wn ,
1% 1 lAa not know wbai
aim of B^^^QOO/.,
w' ►' treaaufer of the
iia^ , J line laia^ atMl na^
omiber 1074.
And ffip llir no.tyOOL itpOb !!io thmeqiav*
tei iheelouoafiw
m*} he^ allcx-
|NEttii#U t^iora iuy Utue, or it aiiy tlii0|| ibal
came to altowarda of that tax, it tnttst be «
corwiiderabla arr^»r<
ThiiNlia^^'hr >f** lasuleoiil in ^OM^
ncral^, atlmi lir ^ Lie cmdd not
tii^inslrate 1 rs : and I inust lurthe^l
oWrre^ I h , ^ 1 1 ihc last three qiianera of J
the 18 riKtuliia olx vi^ere not afisi^tHHl by tuy^i
k^d Cliiford ; 5 el much more than thut suti^J
was th<!n become due to the fleet aail nrmj
then in beiii^ : and it \s well koown, and
owned iu the House of Commons by the the
Speaker, that within the space of ftfteeq
months from the titne of my entrance to th#^
Treasury', I had paid nlwve r,500,O0OA to the
,,^» .. and anny aiouc ; fvhich \v'.\a three monthaj
* ihc last of the 10 months tax uas pay-» J
.j^ lutr) the Exchcqncr ; besides ttir nunn«
siderableuesft of the sum then come : t
tax, and of the 30^000^, increase fj
upon the excii'A^ and of the 85,000/. (if thalj
be it he mf ans by Frencli money) to «o gre
a diabursemeat as was made to the navy,!
army only, in the said space of 15 montlia.
For his third and lust general proof, riz*^
What charge was Ii'fl upon the revenue
liady-day, 1679. t "* Seas eh
in tlas^aii he \v.\ s obtained^
Itkewtse a copy \}i ihu uu riM;ut'cji uierevenuaj>|
as it waa presented to the lords eotnmi^ione
of the Treasury f * aod wLtdi h^ say!»i is as^
followcth :
Remains nnpaid of Tallicfi j[. t, dm'
Charged on the Cnsloms - 435,106 10
Of Tallies charged on the
£xci«e - - " ' 550,404 IS 4^
To repay tlic aduanee • 350,000 0 0^
TbeCharge on the Hf^rth
Dtity hy T»tlie«» and
the Adraoce Money - 350,000 0
ToUl
1,485,570 16
I have indf^d been informed that a state <
th^ revenue was presented to the Ixirds com-
mtEtsioners about that time, but I ktrow nothia^J
of it, nor was any tliinn^ of that kind ever re* I
qiiired at my hands; hut if any body haval
giTca tbcm Buch an one as is prmted by ilie j
uamitier, it baa bean a very malicious
wilful mutaikct tacba»fe th» favcvae la
wilder aiicK a 4l«tit^ becauae thcra were su
mliiesopon it, at tlie time of my Icario^: th^
Tretisiiry^ nnlcs» he would at the same tim^
i «;d the uses of those lalltes t As tirai
: of iheia was for scrrice forwardi
n\uU'y>m\ Lady^day 1(179. Secondly^ wl
was to be reck»)neil in repayment of B<»me <
thewiid lidlicK, which is to Ji'vcry considerabfa
Bum : and t1tir<lly, Imw tniich the adtaac
jr,«rw . "inne on llie cxtnae and heartb 1
!'> ;' whi'di is nut to bu reakooiil 1
u . ., - 11, hill :i^ Hccitrity Utr the rent
tboeo gi\ •« of the fuwrnuoBf
libkli tin! ^uyR doae if bii laaja
were ta the most plniti^ul cunditioii ot' liis '
ehe<}u«*r'7 nnd it utay l»e ulMtirvef), that
Examtiirr btni^^ec naidiarge lb« 150,000^
i
887]
1 JAMES n. Proceedings againtt Thomas EdH ofDanb^^ [588
adyance on the excise, as any part of the
300,000/., which he says was the chaise lef^
by my lord Clifford ; for he tells ycm the
whole charge upon the excise, was then but
110,000/.
The said advances, &c. therefore beinf^ d e-
ducted, there will be taken iroin the Gxairtitier's
charge of I,4i3j,/i70/. these sums follow-
ing ; viz. JE.
For the Advance on the Excise - 270,000
ForAdvancc'oo the Hearth Duty 160,000
To he Discharged hy Orders to the
Commissioners of Excise on the
first act for disbanding the Army,
&c. 101,000
More hy Tallies on the Surplus of the
Excise for 30,000/. and 99,000/.
being no Charge upou the Itent,
unless the Surplus fail, which is not
likely 129,000
BTore oy Tallies which were to pay
the I^orcesfrom Lady -day 1679
fonvards to the Hrst of July, which
was 97 days l>eyond my time ; viz.
bv 29,000/. or therealniuts on the
Excise and about 30,5l}8/. on the
Customs .... 59,538
flore by Tallies on the Customs made
usouf to caiTy on the Service of the
Navy and Ordnance beyond the
said Laiiy-day, 1679 - - 35,000
More by I'allies struck for Pensions
upon the two last quarters of the
Excise, viz. Christmas 1678 and
Lady-day 1679, for payment of
which, Money was left in the hands
of the Commissioners of ExciseBbout 33,000
More by Tallies upon the Curtoms re-
stored for Tin, which was deposited
in Mr. Kent's hands - - - 15,000
More by Tallies on the Customs,
accounted hy the Examiner to be
unpaid to Mr. Montagu, which were
paid in my time ... 2,342
Total
794,930
And then the charge which ought truly to he
said remaining upon the three great bnmches
(as an anticipation of the revenue) at Lady-day
1679, stands thus u|K)n each branch, as near as
I am able to compute ; viz. «£*.
352,176
2:^8,464
100,000
By Tallies on the Customs -
By Tallies on the Excise
By Tallies on the Hearth Duty
Total - - 690,640
The said three Branches of the Revt luie
were left charsfed (as hath been already said)
by the lonl Clifford ; as follows :
£•
The Customs .... 245,905
The Excise .... 401,148
Tto BMrth-Duty - - - 32,318
, So as the Charge upon the Cmtoiin is
increased in 5 years and three qnar-
K-rs, viz. from MidHuminer 1673, to
I^dy-day 1679, by the Sum of - 106,371
And upon the Excise in the said time 37,316
And upon the Hearth Duy iu the said
tin»e 77,689
ToUl
469^371
In all
89l.»69
As by this it appears that tlie «BtiGt|iatioiis
upon tlie revenue in five years and three
quarters are increased but 221,260/. so 1 moit
observe, that there was 140,000/. paid to tbt
goldsmiths for two years interest ol tbrir dehl,
by virtue of a gnint under the ^yeaX seal, dated
the 23d of July 1674 ; and 178,473/. more to
them and others by several grants of perpclnl
interest, betwixt Cbristross 1676, aati Lady-day
1679 ; which togethrr amounts to the sura or
313,473/. and is truly a paynxsnt of so aioch
of the king's debt, although it has not ben
called an anticipaiion of the revenue sinoe the
stop of the exohe((uer. The said 318,473iL
having thcrelbre discharged so much of the
king's debt, in my time, although what ire
called the present anticipations be increased 1^
the sum of 221,269/. yet the kind's debt ■
really less than it was at my entraoce to the
ti«asury the 19th of June 1673, by the sua
of 97,204/.
Notwithstanding that no aid was given \j
parliament iu the foresaid time uf five yein
and three quarters, but what was appropriitcd
to particular uses by the parliament ; and sol-
witiistandingthecmrge of the war with Al-
giers, and the rebellion in Virginia, which were
both great stops to trade, and very great ex-
pe^ces to liis majesty. The Examiner indeed
undervalues those exjiences, as he does evciy
thing to which he can give no better snswcit
than he has done to that in pa^re 60 wbereis
he says, ** That the rebellion in Yimaia oessed
quickly ; and while both that rebduon and the
war with Algiers ha])pened, if there bad bees
a considerable fleet for summer and winter
guards kept out besides, it had been a mailer of
somi* consideration.'' iSo that where he eaa*
not possibly deny the tacts, he endeavours H
blenli^ll them by something else ; hut in lUi
instance that will not serve his tum« thesomoMr
and winter guards having been as great as the
need was then for them, and the merchsDti
will be the brst jii'Itr^ how their trade «w
tben secured, as wtli as how that war wit
supported oi^uinst ihe Algerines.
W itli this state of the revenue at Iisdy*da7
1679, viz. that the debt then ujion it amonntei
to 1,485,570/. 165. 4/., the Examiner ends hii
computations conreming the treasury ; tbs
truth of which will be host decided hy the r^
cords themselve2>: but before he closes theft
part of his book, he thinks fit to leave hiacivil
remarks tf) the reader about me, and tinsstess
me with ballads ; which by his stile it looks V
if ho could perform much better than mattinif
socoont. /J
^r High Treasm*
•' '' i^rU ihe matters of t
III >t jjiirt of ihe ExamiMi
|i«jM^rf I lihoutil uke nuiict' of K^mt: of hii* hiig*
|peslioQ«, before I |»rogeeJ to tlie otli^r port of
It; bui ihgi>(i U'iii^ only oLMenrnrtontt of bifis
gwn, who has ilctilt so imlajUilulIy b thingn
jrhicU iir« viitible upon reconii I tUtnk It t^ill
%ii he Qocci«»ary to twy any dung to them :
only 1 will irtfonn the reudi^r, thai wberi^os this
Examiner says, ibat ♦* theotHte of Irmsurcr of
tb<i a«*vy depend* irp^^T* i|>" i.-r-i t». M'-iUfi- or
coiaioissJcioeni of lU^ v to
piiy f *^ \* I tlupfct? «iiii 1 '. Ivtl
WM tr< Iwo ports of
three in ujiil teA. upon
tue to borrow naonvy as 1 cuuiii upon theiai ;
inMHtmch \hni fnnst of my titne tmil care uns
Uim eit ':: ulihoti^b 1 made
it far J I -Is 10 the prtfu^'nt
trea»urer ai' Lh« uavy, while I remometl lord
treasurer.
T ' ', ' ■ ' t obfierve,
th s ** rh&t
it t^uiii iMHu- U3 . '^- .--f my
case to )iis who a- .iun
that ti^ •^•*Jt; - ^ vr..o,.,^u waK in ^i ..-.« ..,.■.«. J'or
piHiey in the fir»l six uioulhg afu^r my l>ein|,(
1|«««iirer;'* yel timt tti nut
li^ifled Co be to, by that s
dniwu uii by sir Riihert ?i
J I wbkh t^ '
J'l"_ . iter; for li'
Ss haih been HAui nlrcaiiy)
at year (which in tb^ e«tal
aCGODiited to commence in J*uvuuv^) duc:i ex«
oee<l tht" income of the said ye&r by ibe Biuu^f
1,]
>les that Jitate of sir Robert flow-
ti lie, but is
revenue
2 1st q{
hi sn' Philip
:imktiJ :ij»pe«r
e of
ya
•rdiifji - ^
' ' - the
king ;i
10'
HietMb-
It'll
•ucby ii
K-y
for ii:i
V >ar,
il
1^ fchjp» inui^t
f)i,i
to ,ea again,
only for want of
mon<ry t<» ; uud aU
though rne:ia«t wns mM to the fcca-
men <>'
, yet most of
t^ie m<
^'ii* nii*4ed for
tlitU |!Hi |.'.-: ., ...'
' *,tm
lb*' i:M-ila''"l i.M
't%
J knovv ti
ilmt
ioMurdi 1-
ilc-
Ufmd to bitn.
11 IHHH >fi U"«)''Ti ill xuird.
ipltilil fttatf; IK rt*nittinin:^iii my ciivloily (HCfjpy
whmM U «"-
^ ^"') wlit'it-in hir
^B<dbtnaeUH
, thnt bin TL**
ireniic^ urm ;
iittoi, tbot it
C<-"
)t ycnr;
iii^
I'tMi'fl by
hr
ly to it,Uxii. a wet k iii
^'''
m «iib*«istancr, and upon
a '
tUi> ibrft? ji(r«'iit bmnche*
p^
1 ptnch untk^itakom |^
■lieuld bcna
' ly. Iii«ottraita
4PMiiMfi w^
r underilood to be
^m^uutny yi^^i
ngQ, Uy tiMMewliu oiettdtdy
KUL. XL
A,D. 1678— 16S5. [690
ht to know the condition of it much better
- ii (lio Exaniiuer; and therefore it pu£zlca
nobody but bimsolfj to name peivoiis who wert
of that opinion. ^
A Copy if ihe Puffer dr liver ed to kk Majaiy
/mm Sir llontAT Howard* ihe 6iA ^
March 1675.
The Stim that seems the
foundation and measure J^.
iVntn whence ihe fciusj^en-
lAons are made^ is - - 1,351,96$
The Hum retnaininij afier
the Suypenfiiou made, in - 1,175,315
The Sum sui^pended, vt - ]76,(J53
The las^t vear^a expencea
amounted lo - • > - 1,941,931
Out of which the Narv
had 309,390 4
8pentthe last year besides
what iFte Navy bad - 1,212,011 13 ^\
The Sum of Eypenrcaftei*
the Suspt^n&iofiS made for
a follotvin^^ Year, is - 1,175,315 1 6
Tlic Iiirome for the following year to dis^
thai nee of 1^175,315/. is, (?</. may
arise ^ br:inches,
(The rest of the Excise is charged,)
£, Charge J.
COitOms . - - - 600,000 100,000
Excise by the Moiety ^
of Pensions - • 50,000
Firjit Fruits and lOths 15,000
Ltw-Duty . - - t5A>00
SmuJI Hranchev - * ;20«000 10,000
BeoJtb-Duf^ - - 150,000 8«,H2a
Total . 851,000
191,828
The clear locooie remaioiogi is ' 656,17? u 0
The Income short of the propor-
tiont'd Kxuence, by - * - 519^143 1 6
Ue proceeds to affairs of state ; in answer
to which 1 shall troiAe noyself no farther, than
to shew hi?* fjiUe quotations of my kntcr oi tho
25fh of Mttrth^ 16715, otid of the l« "4
IMie Stale tif my Ca^e^ (aA to so mi: \t
ferri s
knowing" ^n ffowigil
I :- Li L the Exsitnmer Is ; of
whir moe may sutliee^ ♦' Of bn
Mill < ti lutfTftit was proifioied by
the manit^^r of the lady Msfy to the l^nce of
Br%n\c% hiv t ? piy inir of t Wgt tf> mm
wIvHt ?«r«- •»•>! r , hut lint KA «p|r|r)i4fe,l
thr ^i5Ui ul ^UiirtiJ, wunu ui* uoi m il, atid
aY
691]
1 JAMES II. Proceedings agntnsi Thomas Eart ofDanhjff [G99
that they are said to be so by the said autliorof
the State, although there be not such a word in
his book ; and he makes one of the said false
Msertiuns a principal i'mindation not only of ac-
cusing me, but of aspersiD^i; the kin:; to (lie
greatest decree ima|*;inab]o, whilst he would
be Uioui>ht to shew him as much duty as J
think he has done contempt, *' which is a crime
be truly (insures that no g;uilt but Treason can
exceed.*'
The said assertion upon which he builds so
many fuUe inferencrs, is in pag^e 92, w hei*e he
says, ** It is fit to observe in that letter" (mean*
iog the foresaid letter of the 25lh of March)
<* that the king was sufficiently informed that
the French desired peace upon the terms sent
by the s€»uretary,'' whereas it is most plain in
that letter, that the king's iuformatiou (which
Yffa by Mr. Godalphio) was, that the confe-
derates desired peace upon the terms sent l)v
the secretary : and in the same letter it is said,
** to prevent the king's sending into Holland
again, (before he knows the mind of France) I
am commanded by his majesty, &c." And,
but that the Examiner hath no more regard for
sense, than he has for truth, it must have been
as apparent nonsense to him, as it is to all other
men, to have sent into France to know what he
pretends was known concerning that king al-
ready.
In the 94th page he says Again, " Sure the
author of the State forgets that but a little be-
fore he says, this lord" (meaninfl^ roe) assures
bim that they were sufficiently mfbrmed the
Frepcli desired peace upon those propositioiis:
And again, page the 95th, ** That sure be can-
not mean the proposals that he says were re-
ceived from the confeilerates, for those he was
informed were desired by the French."
Now from so many rcpetition^M* things, of
which there is not one word, neither in the
letter, nor state of the case, and that both those
have been so long printed, that every man has
had the opportunity of seeing this falshood ; I
doubt not but it will easily be concluded,
what belief ought to be given to any thing he
has said^ which may be cither doubtful in the
proof, or obscure in the nn^aning, to those who
•re not particularly knowing to the matters
Ibis Examiner has taken Hi pon him to meddle
with.
From these " sure assertions," he does just
as he did from his sure proofs in reckonmg,
draw divers as good conclusions ; and lest he
should omit any occasion of shewing that great
duty and respect he professes to his majesty ,< entire restitution of thedukeof Lorrain to
he takes care in page 9ii, to make a particular
exception against the author of the State, for
having justified the king's honour in the 31st
page of that stated case, by making appear that
the king could have no design of getting the
French cnoney for the purposes suggested
against the carl of Danby ; for the Examiner
in the same page 93, has laboured extremely
lo have that argument of the author's of thie
State to be taken for a very weak and f^lseone,
which vindicaUiathe king so folly fmm so foul
He then procceda to that pflrtoT 'Hw IcMer
which says, that in cose the ioonditiona of tha
i>eace shall be accepted, tha king expecti to
have six million oflivreayeaily lor tbrae y^ars.
&c. but says, <* that beibra he cnten npon that
paragraph, he must aeparate the -king from
wrong or disliouour,"- and exphuna that aapart-
tion, page the 98th| " with naviBg aeparatci
the king4Tom the concern of that matter." I
confess he had not need to say ao, becaaae ha
says in the next page 99, *' That it waa a piv-
iect to let a lease of parliamenu for three years ;"
but whether he has done what be jireteniMftr
the king's houoar, I must leave the Jeadarta
judge ; when, if I durat have said in my letter,
that the king expects six miUiona, &c. withoal
the king's order for saying ao ; yet certainly it
could nut have been m my power akme, ^ fa
have leased out parliaments,*' and aa be says
firesentlv aflcr, " to have renewed these
eases ;" so that how it is poasiUe to render a
king less, or how thb imputation can hedesiga-
ed against any body but the king* hinudfl
(althouglr he wonlo pretend aome. cover by
doing it through my sides) I cannot imagiae,
nor is it possiUe to be understood otberwiae.
I conresa be seems to mitigate thia crime a
little, by the only modest exprcaaioa he baa
shewed through his whole book, wi&ieh is in a
paragraph, page 89, and which he wooM frio
have proved by a syUogism, but finding the
first part of it would not hold good, he sayi
very modestly thus:
** If this be a good-conseqnence that to ic-
cept French money is to enslave the nation ; I
hi^pe it followa, the sum of six nailliona onivm^'
(Sec. was for the same purpose ;" but hiaMdf
acknowledges the consequence not to be good ;
for he did not think the 112,500/. wfaieb ha
says was letl in French money, waa for that
purpose ; nor have we found many great anms
which former kings have received from that
nation to have been so applied or intended ; aad
he cannot deny but . bis majesty might have
had great sums from them if he pleased, wbieb
he has refused, and refused only becanae be
would consent to no disadvantageous terms if
peace fi>r the confederates ; nor at the laat did
nis majesty ever consent to those tenna npsa
which the present peace was made, hot on tba
contrary, the lowest terms his majesty did ersr
agree to propose to the French king were, la
have had divers more towns restored hj hitti
both to the emperor, and Spain, than are va-
stored by the said peace ; and demanded an
dukedom ; aa may be aeen by those very pio- t
posals, which were then &ent to Mr. Montan
by secretary Coventry, and without which £■
)y secretary Coventry, and without ^
majesty would not hearken to any oflferaof thar
money, nor (as is said in the said letter) wonM
he sutfer it to be mentioned by hisambaaasdari-
nay, ko much has his majesty been iniurad ii
this matter, that he needed not have wanlel
that money which he ao totally r^jcdMl, if ha
would but have given hia consent to tha lant'
nnoii which the peace was at bat caodBiad fl*
Nimeguen.
i'Li ibis Examiner halb
He folloiri thai cbarjCfe of l*ea)»mij Parlia-
nit'nf«i. within iwo or tf*ree ptii.t;''jiii>l»s. \\\\\\
♦♦ 1:^ imiliclionit lo th*
but '/> •":''.: ^iiipoa^S thUt ftJsO «Ijj.'.
ibi} 8tttU% ftavinsr, ** sure tUuugti he htM U-tfii
Tcry bold mtii the kin|;|^,yethe\t oulJ uitt uiuki'
liim i»vh cMMitrTtfJictuitiB at the eanie (ifUf ;\
mod I do out linH th^ %aid author to huve suiil
one ward lik^
clone ao with ^
TV -, :■,
»hi upy-mirt v>as kept
aect.. ..... * ^U M^,ui<t^u
having both II y,
aud liaviti^ \n V. I ui-
selff thu it Miiitht l»e kept iwcrt't f rnm uU men
)>ut rnc, who never aought tiiai trust at bia
faamJB.
I will f herefnw* If^ave the rest of the letter lo
tbat prii 1 I >n, and shalf only ob-
serve t\^ i.oui U, which m"e the
close ok Uiv livinnnt'i >e upon that
0^l^^ct. One ia tlie II \s. u{K»ti nte
fora(SrminjQ[ in n Hue^oii m uk i i 'ai&eol Lorda,
*Mliat [ could |>roiuice the kiniJi;'^ hand lor ihe
Iftiera made use of ag^ainst rnc ;'^ to which f
sbiU only annwcr I had the klti^'i leave lo to
|lN»» a^^ well aa his atuikinirv int wU^i I vmct
Tbe other is ao ( »>,
IB the ia mi' page, i > me
auUiQfV of the Slate ufwu iUf* %aid letter; viz, ,
** Sure there are few inasteu that ivould ex-
pect ob<:dieorc front their »er%anla in uiiUv%ful
ibinga, and the scrvanli could less exnect pro-
le ci ion unleB« their oiastera were tiliove the
law. The ^reut ina^ii-r uf the nation can give
no nuvre proletti'tn, i*or i re obedience,
than the Iumii uf Cioilaro »xv.''
Now \vbat does this un^uy m^cui^ snid upon
tbia oceasioo) lesa than cbitr^tut^ the ktn^ uith
caiDoiaiiding an unlawtut thinjif, if be did4:oni-
mand Ibe Hritiut^ of t tie $;iid letter (v^hK'h his
rnaifstv hfius*If htiv ouned pubhety ;) and me
for , 'i^ cutuinaada in Mrhat
Ibi vvful?
To li' > , tluit I damt not take
ttpmi nir ibiB Lxaniiuer »kiei, to
htJth^i that vveie unlawtui, nhw:h the
likks lo lie laivful; ahhoiij^h it h;id hc«rn
in A more douhttul matter : Hot wht-u Ihe hmU^
jeet matter ia about ficuer and ivur, the Exa-
■oilier btmaelf ' 'i^ea^p.lOt/'lbattbere
is ne^uesiioo ng may treat of peeee
eren in war \**niu • u , ' and yet in pa{^ 103,
would iuMuuatctiiat a letter oilbat iiatarr, ami
Ln... *. "nTimand. and before %var de-
uhfntootl tu iie uhnitt an on-
otherwise by the Kvaiijincr'a
kin^N oetDtnands on tliat
uiid uiy obedience no crime^
t si jiiutection.
i Iw liuib lione with the affiiira of atait^^
ncd *^ to agree the accusations about
ndbury Godfrey to be hbeU a^ioat
Ttbatto draw «r|fttineDta of ^uilt froiD
relyinqr on the kind's panlon wo\ilil rather ahew
.1 (Ksirc to tind u ciiiiit' tlitio prove it:** But
0 king's part« how vaUd or ^^i^od hia par^
-, lii^ contuiited duty and reaped to hii
*nu|e»iy jnak^-s inm loiU^ar to sjieuk liiit f»pi-'l
niun ; arid 1 perceive algti he takeii it to be of!
KUch weight if be ^hoitldf thai ** he fears iti
niiijht iiHi uiiich anticipate a purliurtteut'sjudi^J
ineut;*' and upon the ivhole, he couctudea^
(dod I a^^tve with him in that) That if he hasj
made appear tobetruti, what he Xias ^idagaitist^
me, my pardon was certainly my be^l detence i\
hut bein^ £0 appaieoily tMmtrary to truth, not i
only concerning^ n^e, hut the kmg" himself; I j
am sure he needi a pardon much more tbati (
he de«enes one, ^ I believe he ia senwibie, be- (
cause he takei the ^afe^t courae of all, whicb
ia to di)$guise biniaeif, aa ivetl at he has do
truth: and if the Examiner was any of inj
nrottecutonj, be cannot deny *^ but that malice
bail bail too great a sitarei at Icai^t in bia*par(||
ol my proi»ecuiu>Q*^*
Sir ROBERT HOWARD'S Accouitt ow%
TH6 STATE Of His MAJESTY*S RE-
VENUE, AS rr wis le*t by the Ejibl^
Of DANBY AT Lady-Dat, 1679-
In a Letter to a FatsNO.
Sir;
It lit now some i|>onths since I received your
commandji, occasiimed by my lord of Dauoy^a^l
Answer to the Examiner of hit^ Case, of whtcb
you deiiired iiteto |^ive you as clear aaUhfaetion '
as t could, of the matter of fact, eapecialty re- A
laling lo tiie difiVreutj^j of the aecompt, how,-
the kin^^^ revenue was lei\ charged Lady<daj,
(rj79; vthich, as you justly ^y, depends on. |
ahe large deductions fiet do Mu by my lord <»f I
llanby, the charge by tallies bemg seemin^lj I
JUj^reed to on both bides,
i waa nut only wihing" lo obey your com-
mandfi, but ali»o inHirt*^! of mvsetf^ to ^\\t* thtt
jmblic siumeacci I ily finding",
uiy name often '■ but ho\r
mJ^ennuus^l^ ., I leave iflh'TH to judg#
by the foil unt;
I had behiitr wiw lii ' ' +' is, but the sick*.
nvm ol my neare<iJ and my long,
cootiouiinrr ■•* • "i 'I'- ^...ti»itcr»
lOCO, hiodi I iiuer.
to IV hut 1 ii, il nol
till now obl.'iiu i- I [daces ae
Were to be the , i I shuulti
aajcert ; beiii|^ caretui to «iet down nothing^^ hut i
what 1 had vtHicheil from the oiHee or records^ ^
to which it rctatoil ; i»ot desinn|^ lo meikl}#*
with polttic diapuics, nor to endeavour to supn
port reason or matter of fact^ with uudeceul
ejtpresoona.
Vou mtul uoi tberifore«:l^r^ etipe€l fto]
695] 1 JAMES II.
tbin^ nf ar^finnent, nor nny ihtnp; m t digested
metliod ; but as 1 inert thV particulars, to my
best know lei) ire I ^v ill set down the matter oi'
fact.
The first thing that occnm, is about the
^JO?l. 5i, IW. short upon the lord Danby's
aceoinpt, uben lie was treasurer of the naiy
(pa^e 35,) the sunt is mistaken 40/. perhajM
false printed.
The matter of fiict is, his lordship left tbe
treasurer of the navy's place in 1673, and the
sum of 9,747/. bs. IXd. was forpiven him by a
privy -setil, bearing date the 21st of February,
1676, as the Kxamiuer says; but whether it
\\'as us(Mi by my lord, or kept in money by him
for ho lons^a time, his Inrdship best knows.
The next thinpf is about the 18 months tax,
which was payable in six quarterly payments.
The matter of fact is thus.
Thj Hrst quarter of that tax wasohan^pd by
the lont Clilfonl with the sum of 200,000/.
The second tpiarter was cliurged with
199{3b6/. And sitrncd Clifford.
The third quarter was changed with 201,000/.
And signed, Osborne.
And are so entered in the receipt of the ex-
chequer.
■ I had then the honour to be secretary to sir
Tliomas Osborne, who was then lord treasurer,
as it must needs follow when he signed this
list of the third quarter, all which original lists
are now in my hands.
The next thing- is in the sum which the last
three quarters of this tax brought dear into
the exche(iiicr. all changes detlncted, wt:ich his
lordsitip affirms to be but 565,498/. 13s. \0d, ^.
The matter of fart is thus. By the records
of the exchequer t'lere appears to have Injen
paid upi#n those throe qnari* rs, to the day that
iny liird J3iuby re'.i:,nip.l the lr<'asi;rcr's .stafT,
th[> sum o' 534.7 18/. 7*- ,W. so ihnt the mistake
heroi.ii^ 10,«2Jf»/. I'M. 67. [. lUsidi-s, thi-ro
WJis paid in the name t»f arres»rs, 7,o7o/. C>s. 5r/.
the one half of which may be presumed to be
applied to this part of the tax ; and then (hoM
iiMstako will appear to bo 2'2 P08/. 15*. 'M. and
this falls but liiite short of the conipntiition of
the last three quarters in the printiHl copy, by
the Examiner of the condition of tlic revenue,
how it was left by my lord Clilfonl, in which
paper it is saiJ, not expressly, but abt)ut
600,000/.
Au<l for the sum of 21,16:1/. 6s. 8(1. which
my lord Danby says was chjirjjwl on the fourth
quarter of that tax by my lonl i 'lifford, I know-
nothing <»f it ; nor is it probable it should be so,
since the disposition (»f the third quarter was
signed by him, a« I lia^e sheeted before.
The tw vt tlimu- ik about the customs, and
the Kx.tuiiL'M-N words quotcti, ivherc he says it
will appt ar, *' Th«' custoips never yielded so
murh us lu t'Ms turd's ibiys.'*
Tiie in.iiti-r of.l;ict is true ; and I believe the
cusioms at that tirae were luauagi J by most
«xcellfiit coiiuuissioncrs ; and thni which did
yet contribute more to it, was occasioned by
XAc i- Kroad . insomuch, that the Engtisb
Proceedings againH Themas Eart qfDanbjff
to
[0»
were then the carricn to bkmI parts of
world.
The next thin^ that oocdib, uu thofttny lord
Danby says, the £xainiiiercbar^ him, ** With
hindering money from coming loto tho exche-
quer, which was lent od the fifth port of the
excise, and diverting it lo other iioeo ;" which
my lord says, is *< notorioailv fhlae."
In this place, it aeeiiia, tbat rather thtt ny
lord Danby would lose the odvantago of oo de-
cent an expfeieion, of colhng oomcthiDg Mli-
riously false, he would tranepooe MHiie troidi^
leave out others, and slip over all tho matMr
of fact, to make it like tho exprewton.
I find the worda in tho Enminer are ihttm,
*< For whoD roooey was lent od the credit sf
the fifth part of exciae, be hindered it fnm
comiuiif in (which wao often qpnaplmiood if
publicly at the exchequer by tho leodcn of ibo
money) and diverted it to other ufeo.*'
The words of the ExamiBor that are hen
transposed, is |ierfaaps to try to make it inplj,
that the Bxaminer does chaige my lofd if
Danby with hindering money to be leet od the
fifUi part of excise ; whereaa it ia plaia enough,
it was for hinderiuGf tbi money wbicb waalcal,
to be repaid, according to the act of parHaoBcat
The words let) out are a whole paronthMii,
viz. (Which was often oomplaiood of pab-
licly a| the exchequer by the lenden of the
money.) If this had been in, it wouM hats
seemed strange that the iendeis of the aiaacy
should complain they were hindered to learf;
and money not lent could not he diverted ti
otht*r uses.
Tlie matter of fact that is alipt over, if id
down by the Examiner, page 61, where apeik-
in^ uf the fifth part of the .excise, hia words
are these, and can hardly be plainer exprewri;
*' For the full SOO,rx)0/. was lent in hia liai^
and at his going out on the 86th of Alarrk,
1679, 83,400/. Was left to pay, whMi ainct
was paid by tliese present Lorda
sioners."
This 900,000/. was lent in his time,hy
Kent and Charles Duuc*ombe, eaquiroa, aai
there was left U) pay at the time whee he i«-
siifiied the treasurer's staff, as appeara by tbi
l^eeorls of the Exoheqner, 83,400/. which ««
since repaid by these present lords
sitmers, and is diseh-.irgt'd in the Kxcheqi
This sum was part of the diarge let)
revenue, which the Examiner did not ii
for the account as it is set down by him, wai
only of the anticipniions on the reveeue by
tally, aud repayment of advance- money : M
I shall lake notice of this, together with other
more coosidc rable sums, in another plaee, what
1 come to consider of the dedueiinna my laid
Danby makes from the charge. It iaJiKearne
\i:ry true, that 3Ir. Charles Dnnoooibe did
oft'.^!i complain to me at the Exchequer, '
my lord Danby did hinder and divert the i
frnm being paid into the Exchequer, aeei _
as the act or parliament did direct ; and leiL
8ir, you may doubt, whether if the Mh part v
thecxeiao had been daly paid isi ill
697]^ i
fuit Hig^ Trm^m.
A,D* I678--I085-
[(338"
been wiiffiHcfiC to Mtp HfpaiJ tbe S€0,000/, tbe
friMn I \ mrr, (m wfiecU time
the 11.1 lo ijie 95lh of Marcli^
1679, iMr-uijf <»u«* year omt tliMN? qrmriFrjii,
trntjuiil^ tu '203,OUO/. %vlucii h ^^OOOl. more
iMn the piinmirtl m^nvyi tirwunls payment of
inlerrnt ; whi<» in the whole ivas but 11,**«0/.
aoi. \d. anif wmild yH IjfiTc lioef» nuu*H less,
liid Itic filVli part tx^'ri ftuly piml mtottic Ex-
oh«|UT?T to ]• ' ' ' ' ' As for
the monies le letters
Ttirre inusi either he a grpnt uml or a privy
%px\ tiw lit* IV tliri.r ..f ,r, v r^to.^py n| tflC EX-
fi V lhi« qf«?tienil
di • „ iMi ssiins fvo
i«yri«d^ patT, cct
sifrvice, art- Jar
wmr^ms, oft -tiittt.il by prirule )i'i(ef5 rtr dircc-
Sotif ; mn it it yet morecftnrly nppwirs hy it hat
hftth be<en said in tlir 1- • iragrapH, thikt
llw 85|i00/. of the H I exciwe lo Hi-
TPrtcif fmm cnming" lu^ wjs :i|)pfie(l hy thiB
lord tuolhrr ufcs, in the ttfvistanre of h^ mit-
liai^eaietit, ^c. hy his |i; " ' 1 1 recti on s» anil
wu ftlloti^iNl fi Ihe * ri~> of cxf'isfe
Q|}on their accounts : t ^m li • siriitot t»c made
appear, that .my !rr«?at setil or [»nvy sir.il fivcr
divcrif'* <^"*^' ■'•"i ^'»v of this money from the
u«c it ^ < tohy net of pnrliriment.
And as iticipHiion^ at wimt time
tlic somg so < ^re pnid. or when the in-
terert igto r , the EYehefi»ier h.i« no
CO^tzanee M' tt ; aud ahhouifh th<f iirroitnt 19
frtiide up hy a ssworn auihtor, yet (#i romputn-
tii>o« of mt«*reM must arise from jirivjitr
voueherVf nrtct \,\\^ lord treaMin»r and rhanecUar
of the exchequer nitist 5iiUi*v the acctrnint, u[k>o
tbr ctcsUt uf (iriraU* voiR'hers: Fur ihiy itan
h ' Mie oni*s from the C\chec|iicr,*tlit:re
In ' onl of any i:euJ ishuc to vou< h it
tWit:;, ««itit ^Nt'rhllfN |hr*l# pltVKt r ' ' -'
miaaMNi€r» of the trea«utv» hiv.
iain th«' n^ni^.. *.* iAVuJM ,,,, .,^„^ ,.,...
liiAilK; f moficy,
tlwy IM , !>it1 what
jnu*t Jm* OiA i« credit^ they en-
deavttfjr to 1^ to he (ravcrniefi hy
lli« recorils icquer ; For what mo-
me« fher • f^i honrow, ihey horww
upon Ifmns ruadt; m ihe Kirhcqnrr; ami Wr.
itirhiH K*>nt nod ^Ir CUark'S lJnnrond>^,
]^ iM!)i, ha?** paid it
tij lAqnifr, where the
^i, bit thp
iicooutit
"V (iif rf« f^risi ■ and no
\wTf(fm^ in this riuHliod
mill' ; :iod of riH mo
of ii^WriX"?«t r^ T'T • *- -r
eond.fimtio I
CRti dt*frau(i
Til? ii«^t
|i>rd Ihmtiy aayf, Th
IxrheilOiif but *^50,S
thf* Folt-BHI. and
-*.' 1 1.\ whore my
■ ti^ht into tho
Tlie matter
kef «i appciara fcy the recoct of ^t Excbe-
liiUiua:
There wai pid Ofion ttiat biil to the 2Mh ef^
Mareb, l(j?9, thv sunt of S49.404/, 4j- 8J* and *
no ivore : but tli^ loaiM miidc upoa the lanniit
of thni nri ;itnootiled 10 1i5'2,90u/. whirh suoi,
ifky I . had the who4e tlii^po^itKin of|i
and I- Kjcnminercltv^ca him with,
Th« Kni^iUtwl meroiiants were |iniipiart'
ready money for their tfioilsi yet were wboNy:
|H\ uftsatisfiVd ; and these present brds of the
treasury have upon ihejr accounti mnoe «tated,
made them iis^i 'jpon the hearth -duty
If? the sotn of 1 . ^^t. 9ti, Jtnd hnve ac-
tually t»«frforme(> unai iiiii» loni cai| only i
for his best excus^ thai he inteaded m
flone. And Lhta id jcA a farther char|r<e ]^f^ j
the rerenue, whieli the Exanivner did not lad
cliMle.
By what bus be^ said in the Ibrefoint,^ pa-
mg'rdph, it appeara tlie weekly ourtificaiei ni
the Eicehe4|tier cannot be proolafor m«iaies dia "
nosefl hv tal I it^ of anticipation : but tny lu
baoby bns been pleased to Ray the caute is
th»t he hiK had out of the £zdi6qii#r some i
those certirtcatcs which have not been Iru
and that to the mistake of 10 or \S,OO0i, iti]
one week. I caimot imagine what my I
meamshy this ; for I ^uppose^ had it l»een reaL^d
fw, 1 ha vie not hod so ^rt^t n i>tiare in btt) iunUj
ship'a favour, but that he would liave miMle T
appear in a m»»rc proper place, if he could ha
made giMid any such thii^g ;ih is ^rreteoded.
The next thing is abtMil tl^c urt^umeiit ooa<d
ceminLf nn Mceiiunt of the PelU from El
I673> to Mtreh, 1579, amciuntmif tA tigfti
mdtimia, &c, which my lord liaiihy haH i
to he tf'u miUtonH and more. 'I'he repetttia
uf tli# former (mm I imagLua is tdJse printed tnj
t!ie Examiner.
I hUMI not meddle with their argtin
but a^^ree wijb my lord of iJanliy, Um
^OO^iHViL on tbeTiftb port of the GTcwe
twice reckoncil, it bcinj; iurlodeil m ihe acij
for dislMtMlmnr the army. And t <to also be^ i
lievp somt part of that t^x vfm not paid in bii
'' ! but not tuidmi4^ any mffreocea tu
1) from it| i have not ^i^vvk nrynelf ih»]
., , ' ' ' <" "viMpiiittt* tt : Sinee if the ordinarv i
Venn with the a<:crd4*ntid taves, harve ]
not ; ut jihofe ii!n uulhooK, at ihtl
Ion I iH l»een publicly acciMmted fori
at tit ithattiuK*; it will neoeirsan'
fijtJow tiiai the rLmaiuder must l»e no aotieip
lUm iTprtn thi*- reveitoc ; whtHi will he beat de*]
'\ upon it lisidy
! I at ^bicti mucti ]
tit piUib , .Hid I Will Ue as dear aa I can, tth
I c»»me to it.
'Vhe rreirl thifi|^ ia about tecrei iwfvice, MjfJ
bir«l Danby ia plcwetl to s^y, the jmn sun
niud in three yean eom|»lefta was tJ},44lfl
Out by tho fAsniila of tbc Excbequar I dii4 j
paid ill three years, viz. from Lady-day, 107^1
Ui L.ifly-duy«' Id? ^^ the »iuu uf 29i|^.''iC^'. lit^
4'/. whereof in "^Ir IU-ju'm liume iiid^>e{| ^
2'i2A67L 10*. ur mm of J
l4JH0f. aa shot. , tod ti» \m*
dudribulctl in newa-yeiinkgitls by Air. Bertj'a
699] 1 JAMES II. Proceedings againsi Thomas Earl ofDanby^ [700
•ir Philip Lloyd, by my lord Clifford's direc-
tions ; of w?iich I liave had a copy by me ever
since Ihat time, i cannot say wftiose hand it'
is directly ; but I can affirm this to be a tme
copy of It ; and it was so ackowledgcd by sir
Philip Lloyd, to a gentleman tbat 1 sent to
shew it him ; hut doiied that. paper to be hk
hand.
I did ailer this, about the Slatof Jane, make,
some further examinations for the scirioe of
my lord Danby, then Lord Treasurer; and
dill presume the increase of charge ou the
customs by tlial time uas 9'ij90SL 17f. 8d,
which if reckoned togetlier with the farmer
chargTP, makes up the sum of 345,905/. 17<.
bd. But in the same examination 1 gave roy
loni, the excise agpreed very near with the sum
in the copy before recited.
I did also present the Hearth-diity to be
hands ; which sum in the half year's account
of the Exchequer is placed under the head of
secret service, there being no other proper
head for it, according to the methods of the
Exchequer. This sum being thcu ad(Ie<l to
the former, will make the total of secret ser-
vice for those three years to amount to 309,556/.
lit. 4d.
As to the payment of my lord treasurer's
pension of 8,000/. per annum, it was never in-
cluded in the accounts of secret service for
those three years, which I suppose the Exa-
miner mu^ mean : For it was altered by a
pciyy seal bearing date the 19th of July, 1676,
to express the particular service of that sum ;
the first payment to commence from Christinas
1675. nut neither when the service was ex-
presiied, as well as before, did my lord trea-
surer ever pay fees for his salary, or the Chan-
cellor of the Exchequer pay any for his, as
the Examiner rightly affirms.
The next tiling is in the State of the Ilevennc
left by roy lord Cliiford. The matter of fact
is thus.
My lord Cliflford made a Ftate of the re-
venue the 10th day of Juce 1673, as follows ;
viz.
The customs were charged with about
153,000/. for the navy, ordnance, &c. and I
hope this last fleet will go near to dear it.
Almost two thirds of the rents of the excise
for the quarter due at Michaelmas next, is
charged for the forces, cofferer. Sec.
All the forces are provided for, until the
95th of July, and the last new additional levies
till Michacfmas next.
Tlie household is provided for until Lady-
day last.
The treasurer of the chamber until Christmas
last, except the old arrcar in the late Lord
Treasurer's time.
The office of the works until Lady-day last.
The great waidrobe hath been supplied from
time to time, as their most pressing occasions
have required.
Tangier is weekly provided for on the
customs.
The ordnance hath had as much yearly in
proportion as in the former Dutch war ; but by
reason that that office hath not kept the ac-
counts, I cannot justly say how that office
stands.
The victualler is paid within a small matter,
except the last agreement for the land-men.
I'he first three quarters of the tax given by
parliament are assigned ; the three last are
untouched ; which amount to about 600,000/.
There will be in October and November,
for payment of the fleet and yards, in ready
money, these three following sums.
From the advance of the excise, - 150,000
From the French money, - - - - 11 '2,500
Upon the 3 quarters of the subsidy - 80,000
The chimncy-monev and law-bili are left
free to be charged as there shall be occasion.
Tl if^ of Hiii piip^ ^g, ^nwa by
charged with' 8J,318/. Jl«. ; hut withal e\<
plained it in tliese words :
This charge may be paid by the arrears of
Hearth-money due at Ladv-day last; and
at Michaelmas there will be half a year due to
the king, which amounts to G7,500/. whidi
at Michaelmas will begin to he paid by •boot
3,500/. per week ; so that the variation herdn
will amount but to about 93,000/. in case my
lord Danby is pleased to give my fialwdatiffB
the greatest credit.
I dt) further acknowledge, in that paper I
presented my opinion, that the Custoais wodd
not have paid its charge at the Christmas fol-
lowing, probably by 40,000/. But it seems
the good management of the mistoms, and the
fulness of trade, gave Mr. Mounteney occasion
to write tliis letter to mc, which 1 nave now
by me.
« Sir •,—1 have a list signed by the late fcird
* treasurer Clifford, and contirmed by the pre-
* sent lord Treasurer ; the said 'list being
* wholly paid, only 8,400/. payable to the Irti-
* surer of the navy.
* I do hear there are several talle^'s stmck
* on the Customs, but I know not of whstva-
< lue, nor to whom payable. I undentaod
* the ))ersoiis have made their application ts
* my lord treasurer, and that my lord inteA
* to^nakc a new list : Which is all I can say
* to this affair.— Sir, &c. R. Mountemct.'
* Custom-House, l^ndon, 10 Nov. 1073.*
And it is very true 1 was then aadilor of the
receipt, and not secretary to his lordship at
that time.
In the same paper before- mentioned, I lik^
wise acknowledgMo have given a short stats
of the revenue, and the expences for that year ;
wherein at a general guess I calculated by war
of debtor and creditor, that the expenoes www
exceed the ordinary income by l,i63,400iL
I could not but admire at the ingenious nse
my lord Danby makes of what I then pr«
ed : for I believe no unprejudiced man <
imagine that I should give such a sMi
that so great a revenue as the king Ucn hada
should not supply tbeotdinaiy
701]
fxif High Trtmon.
A. D. un—\es5.
[70f
goT«mm6nt, by al»OTe « mitVttJti in nne yetr,
wit my lord Drniby wnt plfiiscr! t'> "^- -^t of
ll«? pnper only mioh ^ ijrd* a** fie 1 1 jhl
lifuftrfu' ♦ ^ '■- ■'""^-''•-*' ; Forliftil t^l
Ijie tru K jiiicb m I'll
WHS the :.... .1 lli^' iTir, f 'eJl
CX|Thinr4J ; " Tctl
Uy the i-onirii i in
one y«ar to tlif nun o4 l,4iK>,Ooo/.
And in tlu* said pnp^r I alst» addf^il in the
rtry next worth, tnotlier cAfculation for the
eiWiiintf yr«r t6T4t inhere my lord Danhy
ioi|yrHt have likewise foaod, if be had pl*as*^l,
the^c wonk :
The fttsti! fur the ftiiumg year ](Sr4, if itl
peace wrH hf^
i>r, liy E.tpeti<«. Cr> by Income.
^'Md7.400 ^1,S86»500
B«1aiice - 419)100
^1,386,500
Ho that by a clear calculation « in timei of
f«ea€e tb<* y^^rly inctnne would exceed the ex-
pence by '4 19,100/. »
I wifl not niak« any fdither reflections on
4l»e«e ibiu^, but keep only lu my rule ofmittcr
•tfact.
The lAit thins^ that n i!ie itateof the
Ite venue, boiv it wiis I i) by my lord
ol' ilanby at Lady-Dny mmi*. 1^0^ *«t
down by* the BKaminer, and not denietl by
•ny bird o* D^nby to amount to the suni of
1,486^^70/. i6f, 4rf. excepting one talley of Mr.
llonti|ru'« of 2,443/. which he iay?* wtis paid
ill bis time.
From iln« Cbargv my lord Danby dedticti
these following' particulars ; vis.
For the advance on the Excise - 970,000
For advance on the Hearth-duty • 150»000
To be discharged by orders to tfie
CoinniiJwioiicrsof excise on the Grst
act for disbanding the army, ckc« 101,000
Mure by tallies on the surotu;! of the
excise ft»r 30,000/. and 90,000/.
iwiti^ no charge upon the rvi^U
Muleaa the attrplus f^ii, whicb ia
not likely 187,000
More by tallica which were to pay
the lurrea Trom Lady -Day 1679,
forwardH tn ilu' Kt of July, which
wa«97di 1 my time; - 50,5aS
JVIure by tain custom^ mnde
use if to carry mi lin xr:^;tf of
the navy and ordoAiu^ 1^^ ^ jkI the
said Lady. Day, iti79 - - . 35,000
more by tallies itruck for pmiioaa
ttpoi) the two laat quaderH f»f the
esciae, vtz. Christ maA 1Ci7H« and
Lady-Day 1679, for
of whiclu nuin^y \rt* >i
laiodii oi thecomroiiiiiouvj^ iM t^-
about - 33,000
by talliei pOpott th^ eualoma
re<tored lor liit« which wiU dvpuftit-
«d in Wr, ILtQt'a baada - - - 15,000
!Vlore by tiUiotoo tin oHfliNzif , aa-
fnuQted bv the Exmtnmertobeiin-
fmifl to Mr. Montiigu, which were
paid in my litue ----- f^$4
Total - - - ^704»9
l'hu9 linve f set ilo%vn the change as it!
made up by the Esammcr, na aUo partic
larly the rteducHons out of that cliar]^, i
tliey ftre set dowu by ray lord Danby.
£^ f»
The KMmtiier's C'harcreii - 1,4B5,570 16
My L»oid Dnnby*s Deduc-
tions arc - - - - - 794,950 0
So that by thfit Lories Cotn-
putation, the Dobt on the
Hcvt*nue Lndy-Diiy 1679,
amounted to no more than
^,640 la 4
The examination of these particulars must
determine the true state of tlie eharg*e lef^ on
the kinj^s revenue ; which I shall endeavour to
do with as much candtntr and clearoea$ as liea
in mviiowef* But before I proceed to taketho
partidnlars in their order, 1 miist tiikc nofico
of ooe small mislake of my lord Danby ^s; Ipr
he reckons the arfvance on the excise 2o,0o0/.
more than it really was, whiclTinrrenses hti
detlui'lions: tor the {idvnncc^ wan but ^50,000/.
and is bo wt down by the T But upon
the farm of the ^-xcise I i of March
10? 3- 9, which was a Itinv .>< M^re my lord
Daiihy left the staff, the advunee indee<l was
L*7a.00O/. of whixiU sum W'- r- ^ f ;^ --J- :i:.^.
p**sed of 58,35«A 9». OfL v ^
tally, was included by th^ _ . : ...-^ ^^^
neral accotmt of the cbii^ on the eted^ by
tallies.
Bnl tills mistake is not of much moment,
^iuDo 1 fff^tme the deduction itsidf is by no
I the purtteuliifi in th« same
onli ] : M ir- Mrtdown by my lord Datih
' Itl
(il the same riati
(\\
i
ire, vt2. t
i and tl
i>utv.
si i.
(I'l :i/. !I(!n :-!'
«*!lOfl<»l Hil
looked UpOO □ h i ,
the r^«''-"t'^' 'I' If
it W: q
reas'r. ^ ,, ^ .: , - , ' - .,.,. ;.- >*
a security only for ih*^ rent <>i '
branches; whtch must always be i mt
maj«rty wem in the itKitf plentiful condition of
hiaExcbeqtier.**
In tiiiswer to this, I would in Hie first plaeo
ask his lonlfdirp* wb-'ii ncf'Orit y f*i w*iw ^iven for
the r#ntof tl> i e
it would l*e to v»
two branches oi me excNo uimi iicnrtw duty
were tninaged fts the eiistoms are, and not
farujedi* And then there was no nee ccsity of
such a security (as hiilbrdahip calls il) Jor the
payment
Afc to n, I cannot but thin k«
that tbc**. : , managed as ttte bus-
toonftro fuiglit bo improved abov^ wbaithey
1
I
J
1 JAMES IL Proceedings agamd Thomm EaH ofDanfy^ [70*
alio : And sura my lord of Daabj vmof tho
same opmioii a little bdbre his goiag out ; §m
he baAl almost compieteil a bargain, to part
with tlie kiog^'s title to the surplus, for a coa-
siderable sum of money : And I am sure il
hath been esteemed by the present lords osa-
missionefs as a jmjL of the revonuc, and 9
considerable a pait^ hath sometunea eo
very seasonably, ibr many important
/703]
now yield, as well as the customs now exceed
whatever they made to the kiujjf when the^
were farmed, and whilst they also hadan auti-
cipalinn upon them by way of security : and
.perhaps if thi& advance- money (that my lord
I)anby would not have reckoned as fart of the
. debt) were not in the way, they might at this
time be managed in the like manner with the
custom.^, with equal advanta^^e to the king's
affairs, and prevent many frauds and bargains
that are this way sheltered.
And upon these several accounts this ad-
vance-money may very properly be called part
oftlie debt :
First, Because that until it is cleared, his ma-
jesty is not at liberty to manage those two
branches to the best value.
. Secondly, The matter of fact determines the
argument; f^r every quarter the sum of
fl2,000/. is really paid to those that advanced
upon the excise, and 17,500/. every half year to
the iarmers that advanced upon the hearth-
duty; whidi certainly makes those two
branches, the one now let for 460,000/. per
annum, and the other for 160,000/. per Anum,
no much less worth to the king every year, as
88,000/. and 35,000/. amouiiUi to : so that I
presume 1 miy justly conclude, this advance-
money must ui necessity lie accounted as a
debt left upon the revenue ; unless my lord of
Danby can demonstrate, that while those sums
are repaying the advance to those that lent
the money, the king does not receive the less
for it.
The next deduction, according to my lord
Danby 's placing it, is 101,000/. that was to be
dbchargc^ by orders to the commissioners of
excise, on the first act for disbanding. . This
101,000/. and the 99,000/. mentioned in the
next deduction, amouoting to the sum of
S00,000/. was double securily in the hands of
sir Joba James and partners, to enable them
to carry on the payments that should be
charged on the excise : And in this perplexed
condition the present lords conimisssiouers of
the treasury found it at i^ady-day 1671).
The 99,000/. will receive its proper answer
in the next paragraph ; and this 101,000/. to
be discharged by orders, did not ouiue in till
some months after, by the tax on ^^ hich it was
assigned : Nor was this i>uni comprehentied in
the Examiner^s charge, and therefore ought
not to be deductetl out of it : So that without
either malice or mistake, thv charge on the
revenue was as it is set down by the examiner
(notwithstanding this pretence, among others
of a deduLtion.)
The next deid notion, claimed by my lord of
Dauby, is 129,000/. on the surplus ot' the ex-
cise ; which my lord would have to be no
charge on the revenue, unless the surplus fail,
which is not likely.
These are my lord'adjTords ; but not intelligi-
ble by me, w hile I take the surplus and me
rent both, to be part of the king's reve-
ime: So that in mv opiaioD, if the surplus
lyjif ehmra^ With tLis simiii tba rcf ewM waa
But to make this yet more clear by raattvof
fact, it will be proper to abew the kiag *!
title to the surplus by this short acc»uit, vis.
The excise, formerly let in absoliite fana,
was now granted to Mr. George Dmhwood,
and otiiers tor three years, under a oertaioMt,
with several limitations, aod restrEctiona for the
king's advantage : viz.
1 . The king had a power to make orden for
tlie better regulating tlie fanners and thdr of-
ficers.
2. The commissioaen were obliaed to keep
fair books of accounts, of all th^dutiea of ex-
cise by them received, and upon oath te givt
up such books.
3. A certain sum waa consented tO| for tbe
vearly salaries and allowances to the svb^ri-
lectors, and other inferior offioere ; and in cue
lese than that sum should be expended, ths
overplus was to be aceonatad and paid ta the
king.
4. That at the determination of the taid
term, in case the whole duty of cxciae Dtdo
more than the reserred rent payable by the
patent ; they the said George Daahwood wti
others were to have a fiutber allowanes lor
their care of management, proportionable is
the overplus ; and the residue uf^the said over-
plus to be paid to the commissionen of eaoH^
tor his majesty's use.
These conditions perhaps had two respecn;
one, tliat the excise was tietter paid wha
collected for tlie king, than to abaolute Ihnnns ;
the other, to try to improve it. But however,
it appears clearly by the wliole, that the kisr
had as much right to the surplua, aa the ml
rent : And since all profita arising by the duty
of excise, are alike the king^s money and re-
venue ; to allow this a deduction, weve like-
wise to agree, that the taUeya ao slraick
upon the sur|ilus, were never te bejnaid agaiD.
I may therefore |Hresumeto affirm eoafi-
dentlv, that whatever either of the nent or ear-
nlus had any charge upon it, may wtryimAj
bo esteemed as so much debt leA on the iv-
vcnue. And thus I lio|)e it is evident, thai of
these three first pailiculars, (by ronch theisort
considerable nart of tlie deductions) there ii
no colour for allowing the leaM titib if
them.
*' The next deduction daimed by my M
Danby, is the sum of 59,5881 whioh «u
charged by tallies to pay the forces IvonLl^y-
day 1679, forwards to the first of July, boig
97 days beyond my lord Danby *• timn»"
Tins particular I have cnuMnnd> W$k i
pay-n
705] fir High Trfottm.
St Um toteTcnr trae. Tills deductioD there-
re ocigiil III be sllAwed ; and when I ium
up the whole, I will Acconlingl y stihtncl it
** Tlw ttexx deduction is for tall*** on the
customs, madcti}ie<H lo cftnrv on lUe service
•t* the nttvy tind orffnnnf»e !ji'V*>nd I he isaid
Lady .1 ■ ",>,(JO0/,'*
Cknj ; liAve receif^d
aoertlhcftte Irom iht iitht!L» uHlic oi^Danco^ rery
QOntniry to ^Imt is asserted : For they sav^
*Tb«tthelHte m««tff ot ilie on^ 'i'l ftt-
* tiinffoiii riiy lord o| t^«idiy, y n^a-
Usurer, lomelhiuff like a sfUleuu ui . ...ii. oijly
by a vefhaJ prumi.<ii' of 4 1.600/. per unnuni,
' ^^CMistantiy ^ 'i- '"* "* '^^'^ i-.n^iorTm Uy
D/. per Ti'i'ek, , ex-
of the o. . ^ ^^ ,: LI irotii
MidfiUmDjer 1677.
^ That this cootiuued to be paid but till Feb.
JO, 1C77, betDg^33 weik«t amoimiJngf at that
Fnte to 2a,4CX)/. which yet was not tully paid
» before the I3th of May 1678.
' So thiit at Lady day 167d, the ofiice was in
* arrear of this allowance no less than .58 weeks,
* that is, 46,400/. aot! from Lady-day 1679, to
* Mid«utDtner last 16^0, beiof; one year and a
* qtiarter, 52»000/. in toto 98,400/.
* Wherefd received, March J9, 1678, by a
* lalloy struck upon tJie custom*, by order of
* the l«»« lord Ireasnrer, 10,000/, lor the ordi-
* nary exj>eijc« of the said otiice foroue quar-
* ter, eadio^ ai 3Iidsmntiier 167B,
* More u i I les, by order of the rifjht
* boDoamhl' i commisaioueni of bis ma-
*jciiy^« trrasitry, for the ordinary enpence
* Ibcmf til) the '24tli of June 1660, the sam of
•il,4H/. e$,3id^ in ti^to :31,4I4/. (iJ..?i<f.
* So that then, Vi% et Midsummer Iftit past,
iupposifiif the -vance of 800/. per
reek to be corrt . ' i la ollee, there was
^ niriick tfpon the customs
«.. > U.I V , were »pplieAlde to any f»€r*
^ mea dooe si nee ih at time. (Si i^ned)
«JO}KASi MfK»Hn. EdWAR|7 CoNYIttS,
• Bl>W. !SH(iBBlRNE, G. WnAllTOM,
^ Office of Or4ifmncf, Hrpi. 9, 1680/
These are the words of th« Certifit?atc 5
which instead of allowiog- any such thing as a
* Provision lor carTyint^oti tne sertice of the
navy and ofdfiai! day 1679, it
<$har^^v»s mi nrr* (allowinff the
t>^' Uu 19lh of March
1 Id't at that timr in-
*' ,i fie-
} ilC*',
f^ .'- uj^L rciJiirit tO
t1 when I come
*• t .iUcular, in the
,^ for talleys struck
two ttst cjuArters of the
5 K>78» nnd l^dv-day
aem
I the
A. D. 1678— 1665- [708
This particular could be determined no way
firoperly, but by (he commi^ioners of excise ;
rum uhon» 1 received a CciitificaU: sent the
15th oi September 1680. rh.
* 'J 'hut ull moneys nceired by the late com^
* nilijiiiu tiers of excise, are by them duhur^d
' anduccoUDted for^ except wbatiaremuining at
* the toot of their accnunt i and that it doth not
^ ttppear unto U9(, that any such sum as 33^0001,
*• v%Aii Hi any time lefi in the said commb'
* siouen* hands for Day uient of pensions.
* Rub. Hl^ftJTlNGTO?!, C«A. DaVOiANT,
• Ejcctte Officf.*
These two bat dediictioos therefore cannot
be alhn^ed, unless my lord of Danhy could
likewise find out a notorious falsehood in the
Certiticates of the offices. " Tlie next de-
duction is for talleys upon the Cu»hiras restor-
ed for tin, which 'was deposited in Mr. Kent^a
bands atnountiiig to the sum of 15,000/.*'
i have oUmuied from Mr, Kent and Mr,
Duncombe, the account of this tin, that I may
he as dear as I can in matter of fact.
Thu Account sent lue was thu^, by way of
debtor and creditor.
Till Account Dr,
1678, £. s. d.
Sept, 11. To money lent - - 31,220 17 O
Aug. 13, 16T0. To so much al-
lowed to Charles Duncomhef
EfH} ; and Comp. for commis-
sion tor selling and managing
the tin, -*-.,. fn y
Aug. 13. To money paid to the
present Lordsoi the Treasury 4,395 3 6
36,3^7 r 6
TinAeoouut, Cn
167^. ^, f, i,
Blay 13. By talleys on the cus-
toms, *---.*- 10,000 0 0
Aug. 13. By the product of the
laleofthetii^ . • • . 26,397 7 6
36,327 t 0
By which aeeotint tI nf penp^, 'hat irtiftetid Of
but ; 11^
vv h I ^ k e « I ic s u bt r AC t , h lieu 1 t oiu»
to M whole.
*^ .,:; * ' ' ^ * ■' , ' '' ' "]
on the CI!
be tinpaiil, .^i iutu \\i:i
paid^' (as inv I
1 sent ht\h if theciK-
tonss, cot: iio sent mo
word he I iljfs : how-
eter, by reason i have no direct
1 will rathf^r admit it tui a deduction
707]
1 JAMES II. Proceedings agaitut Thomas Earl ofDanJnf^ [706
The dedactious then to be allovred are,
•£. ». d.
1. The tallies to pay the forces
forwards to tlie 1st of July. 59,588 0 0
2. The balance of the Tin Ac-
count, ------.
3 . Mr. Montagu's Tallies, -
4,S95
2,342
3
0
66,325 3 6
The true state of all I then conceive to be
thus:
The Examiner's cbar^ was, 1,486,570 0
From which subtracting the
deductions, which are - - 66,325 3
Tlieren]ainin:rchargewinbe 1,419,244 16
And that the niaUer of fact may yet mc
clearly appear, how tlie king's raven nestnod
charged when uiy lord Danby left it, I mint
also add three other particulara, mmoaniing la
655,634/. 195. 6(^. (of which sum the pmnt
lords of the treasury have paid and aatkfied
478,646/. 18«. 6c/. viz.
J£. s. dL
1. The Moneys led unpaid on the Fifth Part of the Excise, which was - - 83,^ 0 0
2. The Debt to the Eastland Merchants, paid by Talley on the Hearth-
Monev, which was 186,58S 10 f
3. Upon the Return of Sir John Narborough's Fleet (which '
had been a long time at Sea) there became a great Debt
upon the Navy, which being computed to Lady-Day
1679, amounted to 385,648/. Is. The particular Account
1 had iu two Certificates, from the Navy-Office ; of which
Sum these present Lords of the Treasury have satisfied ^. t. i,
tiie Sum of 208,660 18 0
Ships yet unpaid m the list, amounting to 60,273 15 0
268,934 13 9
And the remaining Sum to compkite the Debt above-men-
' tioueil, b^g 116,714 6 O
is supposed either to be paid by Tickets before the S5th of March 1679^
or is still unpaid.
385,648 19 f
The Total of these three Particulars - 655,634 19 6
To which adding the Charge on the Revenue before computed, amounting to ],419,S44 16 6
The total of the whole charge left on the
revenue at Lady-day 1G79, by this account, ap-
pears to be 2,074,879/. 16«.
And as to the proof of all these three parti-
oiilars :
The first, concerning the fifth part of the
excise :
The second, concerning the Eastland mer-
chants :
The Records of the Exchequer will be the
evidence. And fur
The third particular, concerning the Navy
and Fleet, under the command of sir John
NarborouQ^h,
The charge is accordinof to the two certifi-
cates before- mentioned, which I have now by
uie, to£fether with the others ; and am ready to
shew them to any that doubts the truth of the
particulars.
And these present lords of the treasury will
be the truest judges whether these charges arc
justly computed ; to whom I submit it ; and
shall gkdly acknowledge my error, if they do
not feel the matter of fact to be too true.
There is nothing more remains, as 1 sec,
. that concerns me, or matter of fact, but u
paper, delivci-ed by me to his majesty, the 5th
of March 1675, which was almost tnree years
'.after this lord^s liaving the staff.
I bava not tha w^^ by me ; bat I remeaiber
£. S,Or4,870 16 0
I delhwed such a paper to the kin^, and did il
out of a sense of duty , to offer to Hhd, whether
he in his great prudence would think fit n
make some suspensions, and upon that dcdan
payment of the residue, which the revcBM
would not hear.
1 do believe, that as near aa I could thtt
guess, the income would be short of the pro-
portioned expence, by the snm mentioned bv
my lord Danby, of 519,143^. 1«. 6J. wbica
only shews the matter of fact, how much tlie
revenue was impau-ed, from June -1673 ti
j>Iarch 1675.
And the state of it, as it is here now icpt-
seuted, shews as well, how much it was in-
paired from Aiarch 1075 to Lady-day 1679-
And his majesty 1 doubt not but remenbcn^
that i gave him often notice of my apprehcn*
sions, how much the revenue was Tike to auAr,
by the way of management ; and therefm mj
proposition to the king, to find a we(^ly credit,
w as to help to pay off all talhea, and to brifljl
the government of the king's revenue by apectt
into the Exchequer; in which those fnudi
that had been committed, would infallibly half
been avoided. IVhich ia quite contrary ti
what my lord Danby mentions *^ of puCtJBg At
three great branches into the hands of under-
takers *," and a thmg I never thought of. Bat
thepropoiitiootlpieseBtedt9 llMki^g^ \4r
709]
flit tfigk Trraitm.
A. D. 1678—1685.
r7io
m
frred to protr, %x\A conlrl lin\e mnile ifood, if
li.i K-wi ttu.^i^fit ii for ilk service; wliicti 1 can
If I Uy ID I'll of the jfreutcM ijiiulitv,
\\ : , : mo •, nml to «%t<1riir« \\\hX it Wis
my CI' : ;ment, that tallica of ntiticipa-
ion *** ' Kj ruan of ihe revenue, V nre-
teil to my lonl Danln* i^t VVunlscir, not fon^
r he received the sutf, my thou^hbi of ii ;
ind how tt was nt that timii in hi^ lonlship^s
fM>t¥cr» to (ilacp it io tt*c rii^ht way of maoagc-
tnent; ujiod which he ei<niiiii)n<l«'il me to put
it in writing', which ncconlio«;lv f did ; aud in
that paper i' I no' dtfiicully, but
upon ihe d* 7hen Fox r*y laMieH
€Mi l!»e excise, Lir iwi'jui i M AS cnritinandc'd hy
liis tordmhip to imparl (he M^heme ; who !«riti^
11 for T»^" 1.1,, t'v service, Irecly consented lo
recei^ i>y the Wk^V^ hy which meann
err ill liuvehcen reihiced to that
US wotiht have hiadcreii
ri' ^^ vy the king, which since
it hiijk hupjietied.
! only g^ive this short accownt» to thcw what
' nt ever was coneernint; tdliea of
ti' i» and am at lastcxtrclT1<^lyfiaiiisflefi,
ace my coti>ctnntly d»*cl«red opinion approved
by the proceed Mijif-i id these present lonls com*
miMvoiM^n of thi . who use their eu-
d«i|irour9 to brin _r*s revenue fts fojit
Bs tfeey can, to t>c i;'jv». mcti by reeord^ accont'
iu^ to ihe rules and metboiU titthe Exchequer,
which ii the comtnoa law ol' Bo||tarid.
Thus, 8ir, I have endeavoured to he so clear
in what I htv« done, that it may admit no coo-
trmdiction ; at hiDit, t am not conscious to my^
telf, that I liave noi in every ihiog' acknow-
le<lperl truth where it appcarinl, i»nr have de-
nied or aaM^rted any tninj^, but ^liat I had
IMtMift l« jussUfy me in ; aud ho|ie it may give
Ihttt aatiBtactiou which is cksu cd hy you, and
intended hy, 8tr, Vour*»» 6cc*
TuE Eaiil of DANRY*8 ANSWER to Sir
IIOBERT HOW Aim,
1 know not wheilier I Khould fmd fault, or
thaiik Mr Itoberl llouanl, lor liis *' Acct^unt of
ihe Htat4^ of his MmjcsIv^ ttcveuuef i^ tt wai*
^rfVat Lad 3"* day I«i7v», * Vc. Because upou
iminatiun it will nppenr ta hftvr don» iii4! no
ijury ; arj'i ' - > \vt?d the j^ iliat
Here} waa u tH* \si\\\ \\\ > ti of
Dyoihcrp ' ' • 111^ vMiai con-
kToed tlir V :t!j jt wati found
me at Jii»^ liji.', 4ju<i i^ iL at Laity-di^y
Jti?!). *
t«stav
ijifidl .M- r , ^
la ccriaiu untruth, a notun ^^od,
»i Bi>b«rl aeetiia to he mm > iJ at
li*« «iApr«Mioa.
Iltf aheiia hinwetf aUo far niofife iageiiuoua
than the Esaciiiwr wmf ; for '
errors, although the Examiner be rery positive
in the di fence of ihem ; viz. In hisi ahsulute
atBrmiu)f that my salary wus never iiiclu«l
in secrci wi-vice, Jn bis donbte charging'
200,000/. on Ihe oue-fiHh of the estcise* Ai
io sayioiEf, thtit the whole Ij*x upon the fii
act for disHnnding the army ^ waa come into the
Exche<jucr in my tune, lVc. which sir Robert
\% fM mttch my friend as to acknowlcdj^e ho
believes to he otherwiM:; AltltiMi^h he con-
fessc>8, that he has not given him>^eU the trou
ble to examine it : Aud in the same pag« h^
says, he shal! not mcfbllc with «hetr mg-umputii '^ !"
(meaninjj, 1 «tip}K>^e, the Examiner'^ argu-
ments und mine ;) ro as I perceive we must
Mnnd upon our own le^;^ tor wtiut either of ua
hare said ; he bein^f resolved only lo (five the
public an account how the revenue woa left at
Lady-day 1679, ami not to meddle with po*
hlic disputes^ nor matters ot^ state ; n hich til[
the greater aumbcr ot tohos in the Kxanuuer'
book.
Sir Robert does aho know, that if all th#
mattera of fact cuiiiained in his account wero
true, it could be no crime in me, that the re-
venue w aa more or Irss in ilebt at my leavin|f
it ; unless I had either lessened the income ot'
the revenue, or not truly answered the whole
income according lo his majesty '6 directions ;
or had diverted any of the moneys given by
parliament, to other uses than were limited by
the several iicts : And he does not pre lent I to
S4iy any thing either aa lo the lessenings, i»r not
answering the wliole reveutie ; (hut on the con-
trary, confe^Aes the revenile to be iuvrea^ed m
my time :) aud for diverting^ any [»uri thereof,
he speaks as if aouie oiliera tlid comptain to
him of it ; but I do ciot understand ttiat he
directly charges any such Ihinjf himsf If ; nor
can any man do it, hut with g^roat untruth.
lo^much, that were it not tor »ome expres*
aioDsnotso becomingr a man's own sect'ciary
to be guilty ot, and that the time of publish-
ing'his accomt hiiih not been so generously
taken, as some men of honour would have
done, I Khoutdoot only have forgiven biui, but
havcthanktvl sir Robert for the opputlumty of
dtaring' the intej^rity of my manng-ccneni ia
the Treasury, however 1 may" have be»^n wunt-
inij in thoT>e ubiUiies which God h:ith given to
himself nbofe other uien ! And he ou^ht not
to blame me, but my underbid nding", if I could
not always comprehend such schemes und
i projects or his conceroiupr rhc revenue, \* herocd'
[ have some Htill in my custody, which t %\\\ifX
ackri* " I do not yet i* 1, nny
mon \ when 1 lirstn n,
1 ii it ii^oH II innkM inv <M>iiipiuiii or loe time
sir Robert hoa taken todivulj^e hiiusrlt, i^i, bc-
'*"r*^e It may be too reasonably Hii«tpi'*cled,
ihose reiUNMis he ^ivcs for liavin({ de-
__. il it Ml iiijitiv iiiiinttkK, are not so prolxibtey
as S'j y be» which he doca
netti _ ' ause it hia relalioj
wetc not well at Tuniuidffe, yei it
waa well himself: And Row a man wl
ol&cc «ud dweUiuff it U the Exchequer, ami
tioot^J
I
J
71 1 J
'1 JAMES IL ' Proceedings against TktmoM EartqfDanby, [7IS
to have it iDferred, that 1 had the
some of the money of tliat quaiter ;
which I
vfUo hath 10 fpreat acontroal OTer it, could want
either rec«)nlsor certificates from other otiices,
so long* as he hath taken to satisfy bis friend'a
enqtiiry, is not very likely.
But these reasons were likely : First, That
snch an account as this (though I dare say
understood by very few that read it) would
make a jipreat noise against a man in my con-
diti(»n, in the time of a parliament's sitting.
Secondly, That in probability it would be im-
possible for me, under a conhuemcnt, (and who
am without power to send for any records or
. papers, and who am now without tlie help of
those ottif'ers who acted then under roe) to
give any full answer (durin*^ the sitting of par-
liament) to what he lias found so many months
hitle enough to do, who had all the leisure and
helps tor it be could desire. Thirdly, That
being under accusations in Parliament, I niidit
pcobably be called upon to answer them at this
time: 1^ us I should not only want leisure, but
in all likelihood I could not have my thoughts
free to attend to such a matter as this, when I
had so much greater concerns upon my hands.
And Lastly, Though it contain nothing of cri-
minal in it ; yet it might be hoped that any
small weight which could not receive an an-
swer in due time, might contribute to the
heightning of men's ill opinion against one
he thought not yet loaded enough with fiUse
aspersions.
if this was the design, (as I have too much
reason to believe, both from what I have said,
and because otherwise I do not believe he
ifould have troubled himself to have writ
what he knows will be found to have so many
mistakeK) I do acknowledge that he has gained
so much of his design, that I shall not be able,
under ray circumstances, to give so full an an-
swer at present, as I hope to do hereafter, if ray
condition will permit : and I doubt not but to
make it appear, thatl have said notliing in ray
first answer, but what I have still good reason to
believe true.
In the mean time 1 shall endeavour to shew
the fallacies whioh are in many parts of his ac-
count : the wrong state of the questions to such
otBcers from whence he hath got certiticates : _ _
So as though the certificates may be true, yet so as the one tifih wkslo be paid by then lolbt
can prove that himself knows the oontraiy (m
well as that I pever was knd tre— mrer under tlia
title of sir Thomas OabonM): nnd. firon the
same reason of my having ngned tlint ymrtir
(which U^as done at the request of my Imi
Cliffoitl, and fur satisfaotkin of the craditanim
that quarter, that they should not be paatpenii
by my coming to the treasury), he wouM haie
it believed that the S1,1G3/. 6i. Bd. nid in my
book to be charged by my kml Cliffoni on the
fourth quarter of that tax, mw not en: bnl I
must acknowledge he iosiste not mnek opM
that matter; but ends that pern|pmpl^ wdk
a confession, " That he known nothinfr oif it'*
Uis next pretence is, that upon the thiN
last quarters of that tax, there apyrnn li
have been paid into the exchequer the
sum of 584,718/. 7«. &d. which 1 call kt
566,498/. 13s. lO^d. all the chnrweo bcinir ^
ducted (as the forgiving any reoetven, or thor
securities, &c.) which is notwithelnnding wnk
received in the exchequer, as if it cnuw la It
disposeable money to the king^a una. Mai
although I cannot now have the aight ef erin^
nahi, I have great confidence that the em^
cates I receivMi'of that matter befhre aw Isw^
ing the staff, will prove my coaputntMHi if
be true, when all the oifciunslnncen moi-
mined.
He takes great peine to abow, "l^Mtldii
hinder and divert the money of the one fifth sf
the excise, from being paid into the [iTrbeyff,
as the act of parliament dkl direct ;*' end M|t
*' Mr. Duncoinlictbe goldsmith did often com-
plain to him of it." The truth is, I hnvesa
often heard Mr. Duncombe ponapUio ef ar
Robert himself, that he -should not ibr hii own
sake much regard bis comnlainta: bntinlhii
matter it happened, that uie 200,0001. hoM
lent bv Mr. Rent and Mr. Uuncombf ; «2
Mr. Kent then being receiver of the cnsCeon^
from whom sir John James, major Huntingdon,
&c. (who were then paymasters of the ennj)
were to receive 3,000/. a week out ef theem-
toms ; and the said sir John James,
Huntingdon, &c. being receivers of the i
they are nut iiroperly applied by sir Robert
j^nd lastly, the disingenunus swelling of tlie
account, to make a noise to tlie world of a great
debt, besides the anticipations, which will ap-
pear to l>e no more any ground for accusing
my management, than it bath been of my pre-
deci*s$(»rs, and must be of those who succeed me
in the Ti-easury. As the Examiner I doubt
not but knew ver^' well, when liemaile no men-
tion of it in the range of his malice ; who
Viade appear suiBciently, that he would not
have s^Mred tlio-c, nor any other particulars,
to have loaili-d bis chaise, but that he knew
how eukily they would be answered.
As to the lulUcious g'owt^s (of which he
makes great use througliou*) he begins, " That
Hie third quarter of Uie eighteen months tax
woMaigQtA (MKMrne)i" and hopes troui thence
said Mr. Kent and Mr. Duncombe ; an agiee-
ment was made, or pretended to he aadi
amongst themselves, (and without any dhee-
tion of mine,) for the accoinraodntien ef the
king's service, hy Mr. Kent and Mr. pen-
combe's taking the 9,000/. a week, (which eoi
in their own bands) tor part of the money dm
to them from sir John James, ^. upoolheoni
fifth of the excise : and ahhough some Mcr*
euces did at last arise in this matter belwiit
them, yet it uas setiled in the kiufj'a psemnci
at the treasuiy- chamber, before my lenviof Ihi
staff; and was s«> far from beiuv dicvertedlf
me, either from being paid into the mciihfyg
as the act directed, or from beinv peM te m§
enhlactda
other uses than the direction of the
appoint ; that 1 will put the truth en AM
or whit either he or 1 hnve wiitahtK ilm
fo¥ High Trettmm,
A.D, 1678— J 685.
▼«iitt«» ilpdb the proof **( thai purtiiMil&r. And
for f*- ' '**^ '<K*L Mrliidi he says w;i» impiiitl «>f
fki I conJv^Sd 1 uiulfrntaixJ mti \utw
liiJiL 4:....,.i ut, when Mr, Kent nud Mr. Duii-
oomb DtigUl force tlMi receiver of the excise to
|wy vkbftt iriii <lue to them on the oae fillb,
wheucvxr they pleised : besiilei^ ttiat I beheve
Hi tht> time ot idj^ lc4ivint<^ th«> Httfttf, ttuire WM
5a»D0t>/, iii Mr. Keoi's hjwula, hy ma •nrir of
IImt ^,000/< e wr«k oti lh«* cuitoinK, thisn rkie lo
Uk John Junes, bw. 15y whirh Mr, Kent adH
HHll Buneombe mt^bt f>uy thcTn^i^Ues io much
m^ whftt««*yv<T fiiffi Wfts'romaiuitif; imiimd to
^ them mt that tiiOc» on the fine fifth of tne ©X*
' cue. Ami in truth the wlii»i<? matter concerned
nt no itiure than it did sir ttulr*»rt himseif : and
1 hirefome rr^nun to think, tliftt the Esnkintuer
WM not SCI il( iii«trucued, as to have left th^t
stun out of tiw chtir||r« (e»peciaHy having' parti-
euJtity luentioini'd it,) it it could have been
mute any argumeut a^nin^st me ; which (as I
I bsitt already 'Mid) it ounnot b« ; tmlcss f had
dihir given onlccs to the receivera of the ex-
eive, not la pay the flftb aeeordhif to tlie act,
or bad given them orden ibr applying any
paft of it tn other nse« tlian the net directed :
flilliflr of \i iiTch I do rballaiyt- %ir Robert^ or
any ho^ly eU^^^ ut prove ; and thercfor« it was,
that 1 adl&ki It, notoriously izil^e.
The next hrnd wherein he is knowingly tin*
VriUing- to do nic right, is, oIkmiI the Hull Bill,
|, wludt i IUhI I bttve spoke no foUy to, in mv an-
OTMT Io the K^miner, that I see he lb inks nol
fit to make any reply to whit 1 have thero
I nid t hut only deaigui to make it a pieco of tny
ill nuinn^ernl'til« that lf!dt586i. Idit. Od» (for
which he 9oy« thecomnniaaionefsof the trea-
oory have given nAEignmcntB) ia added «o a
ehar^ upon ihe revrnne, to make up hit addU
tionai char$[[e at the cod of the hof^k, to amoyttl
to the Kum of (56.^^11^/. I9f. 6d. whor^aa no
kody kaoMrt better than i^ir lloUert, that the poll
Bil( was eatimated U) 4U0,(HK>/, at least ; that
credit was givra by the Act for 300,000/. in
moiioy upon it, :j ' r letinite credit lor
I MWfttka^Nid lU*^ ; lo at t*o part of
' liheinoaoy or ertn»^ii« ....; upon ikiat act, waa
^licapi woMlift owr Nive aincted tlio revenue
alaH t aodiCraady money waa protDtaed to any
koAy upon that act, which was not pertormedi
» inan Inn say they bad that pro-
me ! and vniiroover thoii^rli mr
thia 1H0,&8^/. 18s. dd, as a dot^t
^ to the i^fiiNtbiod mtn'chantif, I rcm^m
the M»tn dcTiiaodcd by them in my
was far \€*H^ (midt as [ think, not full
iiwj/.) Notlial I Mievc, that riH'koniivj^ must
Hwelled by other dt-nmnds, and tn no tsuH of
m» if there be oovt «ucb a ctiarge on the
fcvetmow
Likewiaa • ftnd *Mr MoboH hringa tke juoio
pajifT. •**i«'i^ "t'' M«-.»iHi hy the K**— -♦-r $tw
m. itot> . OS it vru Uy
ay kn i i*Jih of Jlm I
0Daf««» I di» llot»ao» atiy use hr mak«<^ ot it :
p Btttlio \u»\tt§ paiiriiM tliai olliem will, wh«m
Ito Jus toU ibiOip llMl tka ong kiai $if *ai
pa|>er «wt drawn by sir Philip Doyd ; Bist
ttiat can by no n)«^ns agree with sir Philip'O
own letter, which »*• primt»d lu my answer;
and air Robert must give me also leave to doubt
it ; because I never savf nor beord of any audi
piper from my Icn^ Chfford, who would pro^
hahly rather tiare designed such a pa|>6r foa
mv iofurrtistion, than any hodiea ducv ooleaa
t}ie king himaetf. But tihe £xamioer bavtnjp
said. That be has a copy of it under sir Phtlip^a
own hand, may pot diis matter out of dispute,
if sir Robert have but interest enough to pvo*
cure that copy from the Examiner.
Those points I have already spoke to, fa^
having been very disingeniiously handled hf
sir Robert) I take to he all the ttaOrra of faol
mentioned by him, till he coneieatothe Riaio
businesi, (hegioning with the stale ol there*
venue at Lady-day, 1679,) excepting a mi^
take of tlie printer, of forty pounda^ whicb
he believes hath been made in the ExaoEunor'a
eorapntation, to the sum of above ibreo mil-
lions (altlwugh sir Robert calk it a rtpetftiott
of the former suit! (which it is not) : And ex*
copting an acknowledgement be niakea, That,
ttie customi} never yielded so much &• ia my i
time : And excepting the head about ^
service, where he conf^ssea that the sum of J
252,407/. 10*. bd, is all that was paid for secrel (
service in Mr. Berly*a aamo, in three oom- i
pleie years ending Muly^day, 1679: htttdoei|
add, 14,640i. in the said throe years, which htf |
does unhandsomely (and contrary to his ov^n
knowledge) insinuate, as if the yearly aumf ^
for new years git^s (which I am uo(
to say whether tliey he that sum I
fbrlKree years or not) were privately direotelJ
to be dbtrihoted by Hv. Uertie ; which uH tb#|
contrary he knows was the king's «on
yearly allowances to several of hia aervaata,
and officers, long before my time, and without j
any alteration of them that I know in mjr |
time ; so that I might justly haveudded thm^
amongst tlic rest, which have had such disin*
genuotis applicatiiins m<ide of them ; hut tliat^
1 am not faroDiheil to answer^ nor do I know i
whallte means by that sum which (with the]
^52,467/. to Mr, Berley, and the 11,640/. for ;
new-yeara-gifts) he pretends to be for sec
service, and to make tbe auna of a09^556/.
the said three years ; u#r do I know to wh
any such money hath been paid for
sen ice in that time more than the
«5t,46r/, to*. M* to Mr* Berty ; aad
which (as I have said in my formes
57,763/, at least has been disliorsi ^
eaes, and sir Robert may nerhsps be mis
in this matter aa well as be ceniataBa |to 1
very next fiaragrapb) that the Smm
in fiia poaitive avernitiil, that «iy aabi
never included hi secret srrvice*
Hlr Robert begins, p. 171, of bta
with the Kxuminer*s ebargw, and my
tiiitis ; but iiiktnedialidy confipist« *' a ni
of the Baaigtiwi. in that oitaegi!, to Ihe stim of
58,HMl. 00. <M.*' wbicb it seema taebari^ h^
tbe Examiner as part of tbetotol abarifVv be-
ri5]
1 JAMES IL Proceedivgi against Thomas Earl ofDanbyp [7 18
■ides all the advance- money ; of which the j
68,.See/. is part, ami which' I could not have j
known hut by bir Robert's help ; ao as by that •
cooiputatioD, the Kxuiiiiner's cliarge upon the '
three i^reat branches ot' the revenue at Ladv
day, 1679, ought to have been but 1,427,918^
6s. lOd. and whether it may not he yet less by
auch double charges, which I cannot know tor
want of the g«ieral particrhus of the charge^
is very uncertain.
The Particalars which I say ought to be de-
ducted from that Charge are the nine follow-
ing, viz. £.
1. For the Advance on the Excise, 270,000
2. For .Advance on the Hearth- Duty, 150,000
3. To be discharged by orders to t£e
Commissioners of £xcise on the
first Act of disbanding - * 101,000
4. Mure by Tallies on the surplus of
the Excise ibr 30,000/. and 99 fiOOL
being no charge on the rent, ex-
cept the Surplus fail, .... 129,000
6. More by Tallies which were to
pay the Forces from Lady-di^
1679, to July, following which
was 97 days beyond my time; 59,588
8. More by Tallies on the Customs
made use of to carry on the service
of the Navy and Onl nance beyond
that said Lady-day 1679, - - $5,000
r. More by TaUies struck for Pen-
sions upon the two last quarters of
the Excise, viz. Christmas 1678»
and Lady-day 1679, for payment
of which, money was left in the
hands of the Commissioners of
Excise, about 33,000
8. 31ore by Tallies oti the Customs
restored for tin, deposited in Mr.
Kent's hands, - - . - - - - 15,000
9. Store by Tallies on the Customs
accounted by the Examiner to be
unpaid to Mr. Montagu, which
were paid in my time - - - 2,342
Total Sum» 794,930
I agree with sir Robert, <' That the exami-
nation of these particulars must determine the
true state of the Charge \ei\ then on the
king*8 revenue;*' and by this declaration of
his own, that it must do so, it appears that
sir Itobert did not think any great weight was
to be laid u|ion his following particulars of
655,631/. t95. 6d. by which he would swell
the debt to 2,074,8797. 16i.
But I can by no means agree with him,
nor admit his reasons, why none of the above-
said deductions should be allowed, but 59,588/.
to the forces, and 2,342/. .to Mr. Montague,
(nor does he agree with himself, in some of
them) and for thfi 4,395/. St. 6d. which he al-
loweth on the. tin account, it will appear in its
proper place to be over and above the 15,000/.
deducted for the tin in my computation ; and
must therefore in its due pwce be added to my
/briiicr deductions.
As to the advanoei which are his firM ex-
ception, it is to be observed, thai air Robeit as
well as the Examiner, makes use of m prelnd-
ed paper of the lord Clifiurd's ; but ooBits u
draw from thence (as the Ezauuiier doth) a
state how the revenue was left charged by my
lord Cliflord ; and yet without doing that, it m
impossible to compare whether the debt be in-
Gr«ued or decreased since that time : lnso«
much that this omission most be for aosM
other end, and serves particniariy that it may
not be seen (as it most he by dimvnng- sock a *
state) and as it was in the KzamiDer*! book.
That the aihances in. my lord Clifford** tioK
were accounted no part of the «lebc opentiie
revenue ; and I wish that all his ftliycsty't
debts were in such a condition aa would alwait
discharge itself, and yet leave hb n^jesty tb
full use of his revenue : And adthoygh lif Ro-
bert be of another opinran, I cannot help be-
lieving, that if all his majeaty'a revenue wai
brought into the same way, which I hcoiq[hl
the excise, vis. of being let upon a cxrtain grstf
rent, and that securnl by a great aam ad-
vanced, and tha overplus (after certain sala-
ries paid for management) to be to the kii^i
own use, with an encouragement to the maaa-
gersof increasing their waffes by aanaal al-
lowance out of every pound, which they
improve beyond the sum secnred ; the wi
revenue would be increased by the iadnHfyrf
the managers (who in that case work ferthoa-
selves as well as for the king) much more tha
would pay the interest of the sums adfaoead;
as hath been made appear by the overpleirf
the excise in my time ; and which, I ftar, it
would not have done by any who bad only
taken pains for the king, without any urospcet
of gain to themselves more than their bare n-
laries. But to conclude this point, siner it
hath never heretofore been reckoned in ihi
state of the debt (not by the Examiner hin-
self) and his majestj^ navin^ the use of bii
whole revenue, notwithstanding the advance-
money, and tliat sir liobert's beat reason, ii
only. That he is of opinion it might be beOff
done by management without advance: 1
suppose these hrst and second deductions will
lie thought but reasonable, and 1 must here
desire it may be observed, that ur Robert aa^
1 have reckoned the advance on the eiene
20,000/. more than really it was ; and yelii
the end of the Very same paragraph, hecse-
f esses that the advance on the excise i«M
was as much as I call it, viz. '270,000/.
My third deduction is 101,000/. to be dil-
charged by orders to the commisnoners ef ex«
cisc, &c. as aforesaid.
To which sir Ilobert gives no colour of em*
tradiction, only he says, it was a part of a doa-
ble security ffiven to sir John Jamea, &e. bv
which he acknowledges there was ao much
money in their hands for the diachacfiag «f
talleys ; and Chen, whether it was in maH-
aminer*8 charge or no, is no great i
is it less to he allowed for one of tha <
Only herel do obsenre air lUbntiii
717]
fvr Hii^k Treason.
A.D. 167S— 1685.
[T18
jtli the F' that be knows of utiat
^irticttlftTS 111 iwr'n dmrge U made up,
^-htiii I dnmiil liuvt; licen glad to have kiiuwD
either ffOHi the Ei«iflitier or «ir Robci t j and
tbt^n 1 could have ansnerfd more putticuliily
«f ery part of the charge^ in the »atiie niethud
iftt» 1 do uow bti duwu eMiry particut&r of the
deducttonfl ^vhifhou^hc to lieaUowiMi*
My fourtli dt'ductiun, iis l39,0tX)/, by tallieu
on the surplus of thr excise^ which I say is no
chari'*-* upon the rent ; and yet tir Robert soy;*,
thai I My it is DO charge on the rvverme ; which
I do not say ; and tlic difference I make herein,
ht because 1 found the revenue of the eitcise
let at a certaiu rent of 6:iU,lMXi/« per annun)^ at
my entrance to the treasury ; which 1 tii^
ruii^ to d^OfUCK>/. per annum, and then to
500,000/. per annum ; and it was never let for
snore Uian that suni under any certain rent ;
and it waa at the said rent of 550,000/. and no
mure, which sir Robert made his caicnlations
concemintf' the state of the revenue to the king^,
in ]075,cu»out which something will be said in
its proper [daee : But I mention this now, to
•hew tuat this branch of tlic ro eoue was no
more impairtnl by me, than himsetf confesses
the ciiftoujs to have been in my unie ; and it ia us
*>l! I nnw n thai I raised the hearth money from
i^r ann, to 162,000/. per anu. ko that
i luiake out the revenues beingimpaired
IVom June 1673, to March 1675, and from March
i675 to Lady-day 167J>, as he says, I do not
urul« r^uviid : 8iuce therefore the hijy^hest rent
4>t I he excise was but 560^0001. per an n. and
that by nvy way of letting^ that branch, l>etwiart
• furm at ine said certain n^nt of 560,000/. and
a rnai»;i^etneijt accountable to the king for the
©verplu*, ther« IwL, arisen a surplua of liJ9,000/.
and more beyond the said rent of 560,000/. 1
tliiuk it ou^ht to be allowed as a deductioui the
le venue not b^njf ahat«*t) by it ; but on the coo-
trmry is accounte*! at 6G0,0<X>/. per ann. which
is i()Ayix)i «>♦ r wm rnore thau sir Robert ac-
• ihe rerenue in hi* com-
|»i -, and is 30,000/. per ann.
tnore than that part i»f the revenue was tet for
at my entrunce to the treasury, which is the
litne taken fift making the corupariaon betwi.\t
the charji^e on the revenue then, and at my
Je:ivin^ the treasury io 1079. So as in truth 1
ini^litjU9tly Uhoug:h I do not) account all the
in: rrhAc^of tnc revenue ou any branch of it in
iri\ ijitic tobaliince the increase ol the debt In
tiic kjiid time ; and then 1 am sure ttiu total of
ihc debt wouhi be much lem than jt was when
1 entered to the tr<4wury ; l*ui I have only sjc-
countinl thtM one Kurplu^, beciia:*^ it could not
he drurrii!rd iiiMMk fiH any certain rem ; nor
V ci'rtaiu u\ti*^ an utl the
• \cixe waji ; hut wtiAap*
phcdhlc to auoh u»ui as hia majesty ahoutd Ji*
fcct.
My fifth / to the forces,
Ice. which : la allow.
My sixth Ucdii^-iion, i^ Jj,OOU/, made tiiwof
%o carry ou tLv s«rvt€« of tha uavy, 4>rdriattcir,
Aad mj seventh deduction is 53,000/. ft
lalhes struck f V»r pensions upon the two
quartera of tlie exciise, 6cc,
These two lost, \lz, the siJith and seventh,
have put toj^'ther, because sir Rol>ert hath m
c«rti(icatea in these two particulars, seeming i
contradict the rea2H>o» given by me for the ali
lowancc of tftem as deductions from til
charge ; which 1 am glad to lind is all he cai
pretend to rotilrartict by any authority ; hi
cau^c t»uth tiie sums toj^ether, if they weie ik
allowed, do amount hut to 6B,000/. and (as 1'
have remarked h('fore) he acknowledges^ thil
the ExQuiiner hath mistaken 68,^597. 9f. 6dl
by a double charge of so much of the advancei
money ; so as the ditference of my lirstcooi
putatiOQ would be le)>&ened but 10,000/. if thi
two sums were not to be deducted ; but to
shew that the matter of fact is a« 1 have said
in both these particulars, i must ^hew that
those certificates (if true) from the ordnance,
and comiliissioners of excise, are nothing to tha
matter he pretends to make out by theju : for
as to the ordnance, I must needs say, that if
was not only the otfice from w hich 1 could get
Tery little of any accounts in my whole time ;
but notwithstanding any direiHions or orders to
the contrary they would take no notice of that
stop which was put to the exchequer before
my time ; but did apply those moneys to pay-
ments luider that stop, which were ordered to
the payments of service forwards ^ so as it
was impossible for me, without entirely dis-
charging the old debt of that ofBcc, to have
brought up their payments to the time of my
leading the staff; and this makes the latter
part of my time seem not to be provided for in
that o6ice : But 1 do say that taUies struck in
my time to the sum of 35,000/. (and which is
reckoned as part of sir Robertas charge of
1,419,244/. 16f, 6t/.) were paid after my time,
and the money apjkied by the present com-
missioners of tlie treasui-y in the stead of other
money, which they must have paid. And sir
Robert himself knows that these lords com-
missioners, when they appointed a weeklj
sum out of the customs, of 2,000/. a week, to
discliarge the debt by talhcs in course, made
use of tallies struck "for the navy, ordnance
and forces in their course too ; and by that
oieans had so much also of the ^,000/. a
week, wliicli tliey applied to the payment of
the several offices ; as I doubt not but both
thec'T iieri of the triasury, and pay-
tua^' trees will own: and to say this
was y.^i;^ the othccs of the navy and
onlnance foi-\viird l>eyontl the time of mjf leav*
ine the staff (hecu use it did not i»ay the whole
dcTit of those two olhcLs) is no argument ; for
until the whide dibt cuii be paid, all paymeuta
arc directed in course : and as I paul dv' '^
before my time, (especially to the navy) ^^
these gentlemen must pay Wfore their time ;
and so must the payments of any who sliall
succeed them be applied to the poyntent of
ships and ysids, &c. due before their time,
nuUis it may be snpposad that sbtps abroad^
Xlt» J
719]
1 JAMES IL Proceedings agahut Thomm Earl qfDmdnf^ [7i0
&e. lit the akimtion of tlie treasury into other
hands) KhaH never be paid.
But had sir Hubert sent to the offict of the
ordnance for a certiiii*ate, to know how nmch
money I had paid them in all my time, and
what the accrued debt was in the said time, I
doiibt not but it would have ap[>eared, that I
had supplied more money to tnat office, than
would satisfy the whole debt accrued in the
said time.
As to the 33,000/. or thereabouts (for I have
not positively named that sum) the matter of
Act is.
That a stated sum for pensions was directed
)'early ; so that if tallies were not struck, yet
the money remained in the hands of the com-
missioners and receivers of the £xcise, until
such talKes were stmck : and that this money
did remain in their hands at my leaving' the
staflf (in part of a greater sum) sir Robert who
was one appointed to state their accounts,
cannot but know ; as also that those commis-
aioners and receivers (bein^ to be laid aside)
did apply all the cash in their hands to tallies
in course, and paid over this 33,000/. or there-
abouts, and the other moneys in their hands to
discharge tallies in course ; and such tallies
as are reckoned nart of the charge left by me
on that branch or the revenue.
But the said commissioners and receivers of
|]ie Excise, might perhaps give the present
lords commissioners of the treasury an accoirat
of little or no cash in their hands, for the rea-
sons aforesaid ; and yet this is no manner of
argument to prove what sir Kobert would infer
by his printetl paper; unless, as he had les-
sened tnereby my deductions, he had also
lessened the charge as he ought to have done :
knowing that with the money in their hands,
at my leaving* the staff, they really paid as
much in tallies, which are a part of the chai^
said to be leh by me. And this sir Koliert
would have writ to them to certify, they must
have owned to be true : and consecfuently (from
what 1 have sitid concerning these two de-
ductions (I hope others will think tbcm rea-
sonable, althou(;h sir Itoliert do not.
My eij?iith deduction is 16,000/. by tallies
on the customs, ^c. Thi«< f must needs siiy
was not so plainly ex^)re&je«l, as it ou^'lit to
have been in my former answer: for these
tallies were given to Mr. Kiri^^duu (tlim pay-
master of the arury) and not heinj^ made ust* of
by him betbre my leaving the treasury, they
were since delivered by him, to the present
lords commissioners of the treasury ; -so that
they relate not to that account which sir Hubert
hatn taken the trouble to set down. But I
am sure sir Robert knows it to be true, tiiai
such tallies, to the sum of 1.5,000/. were de-
livered up by Mr. Kingdon to the lords com-
missioners ; and he ought therclbre in justice
to have added tliem to that sum of 4,395 /.ii^. 6ci.
on Mr. Kent's account; for the knowledge of
irhich 1 am beholden wiiolly to sir Robert,
because otherwise I •hoohl \fKft beea ignorant
«f that deduction.
\
My nimb and last 4edlleliM^ \m 9^*4/- kf
Mr. lfonta|(ii*i tattica, wUeh air Hobot ia aln
pleased to admit.
Having gone tbroagli the deduetioiia, aid
having given the reasons on which thev ait
grounded. I hope they are so dear as will pre
every body satisfactioB ; and I ahall now fiiloe
sir Robert's method, by takini^s
First, the Examiner'achaiga
which was 1,485^70 0 0
Then subtract my fi
Deductions, whliA
794,930/.
Then subtract likewise the
deduilions now to be added
• by sir Robert Howard's
assistance amounting to
58,352/. 9s. 6i/. whwk is
double charged on that ad«
vance of Excise ; and also
4,395/. 35. 6c/. deducted oo ^
Mr. Kent's account of tin,
viz. 63,747/. 1S«. Od.
Which together amounts to
the sum of - - - - 057,677 13 0
And the remaining charge ■
willbe 697,802 7 «
I suppose sir Robert admits the <d»ige hA
on the three great branches of the refeoseby
the lord ClilTord, to be as I hare said in my i
swer, VIZ. 469,371/. because iie says a '
against it ; and in that computation are i
reckoned advance- moneys, nor moneys suill
to ships, &c. which amounted then tosM
treble the sum sir Hubert now reekons ts as
John Narborough's fleet.
And then, the charge left by jg. s. i,
me on the said three
branches being put - - 637,802 7 0
And the Charge by my Lord
Clifford, being - - - 469,371 0 0
The Anticipations are increas- ■■ *
ed in my time, viz. in five
years and three quarters (al-
though no supplies were
given by fiarliament, but
what were appropriated, and
uere so applied) only by the
sum of 158,591 7 0
And as I have itaid in m^^ answer to the En-
miner, that 1 puid in that time, 318^473/. lolhc
golds luitliN tor tliuir per|»etual interest, wbkk
is almost double the sum increased unoa tta
anticipations : besid(*s the rebellion of Viigisiit
dec. which 1 have mentioned in that aaswtf,
and then-lore will not repeat theiii here.
U<'tore he cli)stfs his account, sir Rsbttt
thinks fit to add to the Examiner's obaige, A
furiher charge of 055,634/. 19<. 6i. by tistt
particulars, viz.
Uti|)aid on the one <H\h of the
Excise, ..... 86,000 0 6
The Debt, of the EasUand
Merchants^ . ., . , ^86,5M tt-'f
»
The Debt to lii« Navy moa
the relitrn of sir John Nar-
boroach*8 fleet, * * .
Of whic!n he says the present
Lords CoroiiiiSKioners of the
Tr^atury have jjaiiI and
385,648 19 9
- - 478.656 18 6
I tuppose the Examiner Imew nothing of
this tuuUer, or certaiiily h wotitil not liave been
omitterl bv him : and I must here observe, that
what Biir Robert calls iu me, a charging the re-
irenue by talties^ he calls now in othera, a salts >
fylng of creditors, although it he tlie vt;ry same
tiling', and by tallies at a Tery great disrance of
payment : which if I had done, 1 perceive sir
llohert would have made no use of for me, but
to have aiMed it to my load of anticipations,
For the 83,000/. as I have already said (and
«m very confident of the truth of itj therf was
remaining in Mr. Kent's hands at Lady-Day,
1679, 53,000/. for 26 weeks, of 2,000/. per
ireek on the customs due to sir John Jnmesand
|iartuers ; and for the remaining 31,000/. or for
the whole 83,000/. I know no man that either
did, or could have protected then* from the nay-
liient of it, aeionfing to the act, if Mr. Kent
ttd Mr. Duncomh had |ir(*«ecuted the receivers
of tlie exersie about it ; nor did I ever use any
authority or other means in ih^t matter, he-
twjjct them, than by penmading them (iXH I did
all toen, who were concerned in the king's ser-
yice) Ut accommodate one another^ riccit«ion8
}0 tbetr tkCvcral employments, an i'^v- as their
own «»afetics and co nvcn if nces would permit:
nor ahoutd I have either charged the king ur
Itny but the rec^jiveis of the e.\cise thernvd? es,
to have made iiuti'« faction to any biMly for
any sum which wus due in them by virtue
of the Act of Parliament out of the one iUih
of the escciw.
For the 186,585/. 19». 9d. (which m Robert
oUU tlie debt to the Eastkind merchants, and
which 1 do not reroemtier to lie m much in my
time as 40,000/.) it became a debt by the money
of the Poll Act fiilling so infinitely short of
what it wasciileulatt'd lo be by the parliament ^
and for which tliere will be lound very liltle of
my directions ; invomuch, that as 1 did not
charge the revenue with it, in my time, »u I
lake mvself to be no cause of the accruing of
Ifaat debt.
For the 585,648/, iOi. H. due to the fleet
upon the rulum of sir John Narborou^jh, 1
wonder air li<jbert will name it, when he is
^ompariuff the «tate of tlie debt led in 167^,
with the debt lell in 1673, when he knows how
vajit a di^pr<jpi>rlion there is betwiJtt that debt to
the navy, ami thts in 1679, the sum then due
to the deet being tuueh above a million : so
that I look 'upon this last addition to be (as 1
have su: ' : only tu make a noise ; besides
that tiT r liorougb's fleet came in sinoe
1 wan < lioymHit; nnd, 1 thank God, 1
mm ai> f that there i^ever was three
abina iii mi mj lime, that were not paid olT
%kh n»ady tnoncyi lad aa looki at ilie ihip
VOL. XL
A, B. 1678—1685-
books were perfecteil by whiclyhey were to be
paid.
Lastly, If sir Robert will give me leave to
reckon, as the Examiner hath done, I may
reckon the advance of the excise, viz.
^11,617/. 10*, 6d, (for sir Robert docs ack now-
ledjje, that I had only disjiosed of 58»35'2/. 9s. 6d,
of the 270,000/. advanced on that branch) to he
so much iu ready money, towards payment of
the said fleet.
So that upon tlie whole, I can no more con-
ceive these three last nartictilars ought to be
added to the charge of tne revenue iu my time,
than the Examuierdtd, when he had mustered
up all he could think possible to be laid to that
account ; and for the particular of the ships, U
is impossible but there must always be a debt to
be [mid by whomsoever shall succeed in the
treasury, only it will be less or bigger, as the
ships kept abroal are more or fewer in num-
l>t.T ; insomuch, that sir Robert needs not give
himself the trouble of proving thi^i particular
with that care which he seems lo take about it.
Most of p. 157, is taken up about sir Robert^sj
paper which was given to the kinif the 5th of
March, 1675, by which he says •♦ he intended
other uses than have been mentioned in my an-
swer to the Examinar/'
I shall say more to that paper ai^ some
other of sir Robertas schemes, as also Ui some
managpimients of his own in his office, and
Ills mistaken certificates, (which I have in toy
custody) when my leisure will give me leave
to ask nira the meaning of them : In the mean
time his paper of the 5th of March Wing
printed in my answer, every man is at liberty
to make his own construction ot* it : and not
being present aiyfJelt at the delivery oi^ it, 1 can
only aay what was told me when I received
that paper, from those whom I do perfectly be-
lieve. One intent of tlie paper, sir Robert
says, was to prevent those frauds which had
been committed in the Exchequer; but since
he bath not thought fit to instance any one
uarticular of those frauds, I am apt to believe,
he either knows none, or none that h*; is willing
to speak of; for he knows, that if any fraud
came to my knowled^-e, as some did, 1 made
it always to be examined in public ; and 1 take
it for one of the highest vinthcations of my in-
tegrity in the Treasury, that sir Robert cannot
charge me with any other appUcaiious of
money to my own use, out of those great sums
whicK have passed through my hands, more
than the sum of 2,747/, 5*. 11^- bestowed u|Min
me at the making up of my accoont as treasurer
of th« mvyt w hereas there are good store of in-
stances of^lord treasurers heretofore, who from
teasfoondatiouii of estates than myself, have lefl
visible m<»numents of more money laid out tn
some one single building of theirs, (besides the t?*-
tntejittddcd iu |in>porlion to them) than I have
got in near six ytntn eryojment ol tlie vimc
office: So that'tmce the blame can only bo
laid upon my management (who could be n«
wiser than Ciod had mode me) and not ui>on any
corrupt actinga in my employ mem ^ 1 do noi
72SJ
1 JAMES II. Proceeding* agaiiut Thomas Earl tfDaidnf^ [784
only willingly undergo sir Ruheit'i rebukes,
but do acknowledge my ov«-n failings, and hope
tliat by sir UobertN (;ood adiice, bis majesty
\\ ill for tlie future be served as be ou^ht to be.
In the last page of bis account, sir Robert
says, ** it is only to give a short account, to
shew bis judgments conceruiug tallies of an-
ticipation, a ud how extremely satisfied he is''
(which I lerily beiieve) *' to see his opinion
approvcfl hy tlic presc-nt lords commissiuoers."
lie bas mentioned soiiieibing of the antici-
nations in tbe beginning of his account, which
I passed o\cr in tliat place, because they would
more profiCTly be 8p<»ke to both together, as
also tbe matter of interest dejMnding upon
such uiilici]Mitions.
And in the iirst place, I do agree wjtli sir
Robert as much as any body eltic can do, that
it is better to avoid tallies of anticipation, where
it can be done, than to make use of them ; but
that the revenue must be ruined by them, I
. deny ; or that the interest is left to any such
uncertainty, as he would have believed ; but
that it must be by the knavery of the lord
treasurer, chancellor of the exclie((uer, or the
sworn auditor of the exchequer, before whom
tbe account is brought) if the king be wronged
in whijt interest he pays u|)on such tallies.
I doubt not neither, Ijut the present lords
commissioners of the Treasury have endea-
Toured to avoid such tallies ; and so did I, till
I found it impossible for mr to help it ; and
(if I am not misinformed) although the pre-
sent lords commissioners have spared 2000/.
a week by their other retrenchments, to dis-
cbarge tallies, which I was not able to spare,
anil supply the kiji^'s other occasions, yet those
tallies which were m course, bein^])aid, I bear
and have good grountl tti believe true, thr.t now
the lords commissiriiiers are neH:cssitatedto com-
ply with some leudei-s of money so far, as to
give them tallies of antinpatidn to a coiisiilcr-
ahle sum : Nor do I know how it can be help-
ed, iirdess sir Robert can be able to do more by
his legislative cap<icity for remedy of the mat-
ter, than he will ever be able to do by his pri-
vate ; and if this be now the case, us well as it
was in my time, then by sir Robert's rule, tbe
cxcIh quer will still be no wiser than it hath
been, in knowing when interest is to commence
upon such talliL's.
It is true, that the exchequer doc s not pre-
sently know the eommenrcment of interest
upon unticipnti(»ns ; but J doubt not but the
lords commissioners do take cure, that the
vouchers, thou«>h called private ones, shall be
as authentic us jmblic ones : And it is the
duty <d a sworn auditor to sec they he so, from
whence thev are entered in the* exchetuicr ;
and from tfiat timo the exchequer does know
tbe timers of lending upon tallies of untici))ation,
and consequently the charge of interest upon
them ; so that the bugl>ear is made far more
terrible than it is, althou^^h, as 1 have . said, it
were better to be avoided, if tbe king's Dcces-
flities will permit.
i have now go&« tlirough i&r Robert's ac-
cdunt, and hope I hare madp mear tbtt
tbe state of the revenae at Lady -day, 1679,
was not as it hath, been leprejcnteJ citbcr
by tbe Examiner or air Robert Hoviri;
and since sir Robert'a friend, (lo whom be
writes) had no curiosity to efH|inre into ihiMe
other parti of the exauunaiioD which
concerned t!ie aflaua of aiale therein men-
tioned, I shall repeat uothiofi^ upon thai tnbiect,
but conclude that bis friend ia satisfied iuUMM
matters, which are of much the greatest oh-
cero to me : But I hope it will be uken notice
of, that both the Examiner and sir Robot (hov
much soever they may he staogers to ooe m-
ther) have carried on the same design agaim
me, as if it had been with tlic same band ;
saving, that sir Robert has shewn himidr
to be the better accompUnt, by rectifyii|
divers errors in the Examiner's oompntatNBi.
and that he has been much more civil thio ik
Examiner in bis language.
1 shall conclude this answer to sir Robot
Howard with this single request to all ay
countrymen ; that they viould not believe uj
thing against me by reports, till they ne<
proved: And then 1 shall deaire no oUier^
vour, so I doubt not but to be restored to Ai
good opinion of all such, as have not paitici-
lar prejudice against me.
March 20, 1679.
The House of Commons resaraed the Fr*-
ceeilings relating to the earl of Danby*! !■-
peachment, when, among others,
Mr. Vau'le delivered himself as follovFs :
■\Ir. Speaker ;
I should havo been pleased to have bcaii
what was needful to have been spoken unlo^
from some other mc^mber of this house, radw
than ii|^'self'; it is concerning the eari d
Dauby, M ho stands impeached by tbe Con-
mons of England of high-tieason.
The person to whom we owe the dangcn
and fears of the French king against us.
The person to whom we owe the thmB
and severe answers to those humble addreaei
we made the last sessions of ])arliament.
Tbe person to whom we owe the nua if
this nation and exhausting the king's revcmib
The person, to whom wu owe the expeneeif
200,000/. and upwards, within a year, ubm-
counted for.
The person lo whom we owe the many pit-
rogations that hap|>ened in the last pariiaflMO^
wiieu many profitable bills were ready Ar
passing.
The person to whom we owe the raiaisgflf
a standing army, to be kept up by the R-
ecipt of six millions of livres yearly, for thne
years together, to enslave us and our retiffioa.
The person to whom we owe the late MM
that was thrown in the sitting of the last dsT'
liament, to hinder the good issue that 01^
have come by their pro^ediaga ; who ia oav
laying down his staffi and muung uf l|is ae*
7S5]
for High Treasmi*
compu in tlie treniurv fiJi be pleasetb, to en-
^ch liimsi'lf ouloF the spoils of ibe people^
Hd lo rlepart.
M J hoinlile motion i«, Thai ii mefsenger be
lent immetiiiitDl^ to the Lurds from the Com-
Uinns of* Rng^land, to deitf:* their lanUliips,
Thai Thomas furi of Oaoby he irnmeiliiilcly
«>oitMi)ittt'<l to safu ciifttoilY, he bein^ impcacli-
ed hj the Commons of Eng^land of High-
Tr*';isoij.
11 debiite the House came to thts reso*
** Ittsolired, Nem,Con. That a IVfesss^ be
Kent to the Lartk to put ibfra in mind of the
Iin|Hnulimt*ut of Hitrfi -Treason, exhibitefl
ngitin&t Thnmaseail of Danby, in the name
of the Commons of Enjrland ; »nd to desir«
tUttt he limy l»e commilleft to safe custody."
ff' ' n;4^in, **Tlifli U he refened to the
C if secrecy to draw up further Ar*
titi- - «i;.iiU3t bim/*
March 32. The Black Hod summoned the
CottuuonH to attend the King immediately in
the House of I^irds, tihere the king said ;
*• My l-iords and Gentlemen ;
** I shouh! haTc been glad lo see you h?id
made any ^od progreits in the tnuitere I ealksl
you for, 1 pereetve that your proceedings
SffAinst my lord treasurer haie hindered you
tfierein, I am therefore now come to put an
etid lo thtt husinc^, such as 1 hope mi\ t>e to
your SAtiMfaction. I hafo (pven him my
pardoti under my broad seal, I>efore the call-
tng this parliament, for securing both his hfe
mud fortunes, and if there iibould happen to
be any defect therein^ in point of form or other >
iwtse/[ will {^ive it him tun times over, mlher
than it should not be lull and Kufiicient for the
purpo!(C I design it* 1 net er denied it to any
«jf m\ servants or ministeni, when they quitted
tl aR tord Hhal\sbary and the duke of
lii ;rj Well know, Ht'sides, I must in-
fofut yoo, that there are great mistakes in
those matters concevninjsr him. For the tetters
were written by my order, And for the con-
cealing' the plot tt was tm{iOf visible, tor he bad
h«ard nothing of that but what he had imme-
diately from myself, I hare dinmisseil him
my court and council*, atid not to return.
PubUr busiiiets presses hard, and therefore I re-
commend themio you lotrouppedilyuooo them/'
The CotnmoiM bif'nf^ Murnetl u> ihelr
House, the follow iuj/ dtlmte ensued, *
Mr, Iknntt. As there has lieen too much
heat iistd here fortutrly, so I hope this House
will not 1h' too cixtl now. If pardons go on at
this rule that the Wn\^ has told u^, wc are in n
desperate coniHtinn. In Spain, when a Don
is srni tn a government, and is aceused of ill
•'' "'^n, the court scpif esses some
ti. t hint, and be \h pardoned, and the
' ii#\t 1 ovema does the ^ame, and so
tibrrcbv 'vemment is become iiios.1
despicit^>ie, Ira I ICC is grown great by a ctjU'
trtry metliod. There is a chamber of areount«,
• 8<« Grey'i D«batef, vol, 7, p. %0.
A. 0. 1678— 1G85, [736
nod rwhat the o/Bcer has got more thah the
usual perquisites and profits of the place he
must lefufid, and that jjoes on towards ihe
war. Our co^r is miicb worse* When a mi-
nister falls, as in lord Chirendon's case, ther*
w;ls an act of banishment, and now, in the
treasurer's case, a pardon. The lawyers can
best tell you whethei- this pardon is good in
law. Infitead uf squeezing' a minister that has
been faulty, he goes away with 247,<XK>/. —
An army 'raised — And the fleet unpaid, with
Popish captains in it ! When he put the Papists
in, then the plot opened upon him. We Rhall
be still worse, if this minister rides ofl' thus
unpunished, and it will be alwavs thus, whilst,
after an imjKacbment of hig*fi treason, any
man shall gt) at large. It is for the safety of
the kini? and the nation, that a minister be
afraid of this House, If you let this mini'jtcr
g-otbu!?, three years hence you nmy have such
unoO"- "" •' !n time, we shain)e ali l>eggars.
Si n^g^fr/brrf.Sujjpose the treasurer
becc?: .... — J by the king to doau ilJ thing;, as
the writing" tliose letters to Mr, JHontagu, ike,
let him plead his panlon at his trial. We are
not to take notice of it till then.
JItr. Wogan. As the matter stinds upon lm>
peacbment, the pardon may be pleadetL 8uch
an impeachment or information he must plead
his pairdon for, at hi^ii arraignmentp and not
before, ' We cannot take notice of it. Matter
of fact cannot lie pleaded ajjainst matter of
record. We ought therefore to desire the
lords, that he may be secured to answer hit
charge.
Sir John Knight . In the treasurer's last let*
ter of 26tb of March, Mons. Barillou, the
French ambassador, and he, made up a peacei
when that letter was written without the Iclnt^'s
direction. When a man comes to be tried,
then is his proper time to plead his pardon.
This man must come to trial, to shew the
world, how ill a minister he has h^n to the
king. All thiii^ have been done by him, and not
by the king and council. Therefore, pray go
on with the articles of impeachment, and let
him plead his pawlon uj>on his trial, and
shew himself a traitor to both kini^ and
kingdom.
Sir J^khotat Carrw, If you should go by
address to the kmjjf, ^c. as sir Robert Mark*^ ,
bam has moved, lot it jro with a represeoti
lion, in what condition the nation is in. Vfi
have uLHther '^liips, money, stores, aor all!
auces, that I know of
Mr. Booth. I think tht^^ is the first time, that
either any king, or ihi^ Inner, '^nt for n Hoti^e
of Commrjns to atic
ncj^ ji«?ifiis. I will li
lifrcatmatti: ii», but iiiookr*iiUtiii. The
Ltdd u«, ** that it is usiunl for him to
piiidon Ins servants wh**n he «1 ' s
>S[c.^* If it be «cUKtom,iti^ 1
:' ' I hat cati be. Hut if
, they ur<? not so in ►
lyu i-iiFiv can parallel the villaiiM': > ...m- *,,*
cdneitats of this man. The kiii^ tells us, '*
A^i
787]
1 JABfES IT. Proceedings ^mmt Thomas Eari itfDanhy^
vrouli have tit mind the grezi kmmnen of Ibe
SAliori :'* j6u hare do greAtcr busincts tban
lb»« It' these pardons arv thus obtained, it
will l^ siicb an encouragejnent to rogues! If
the king wilt give us 0|>| let us do onv duty
not nit) I standing.
Mr, Lcveam Goiter, ff the speaker bad ns-
DQeiuberod all the king^s spcecb, be would
have rc^iortcd atl. The king iMid» *^ be ims
given tbiB lord hiti jvartloo before thepsrliamcnl
met« and bus done no more than he did to the
duke of Biickiaf^iiam and lord SbaiUbury***
And I thii»k« il" be be so removed, as you are
Cold, by the kin^, that the nation is not iu
dan^^tT, and the kin jT says, ** he will pardon
him again and again.- '
The Sptaker. 1 will not say, thai the kiiig^
did not say the words of ** pantoning him attain
•nd at^ain,^' but^ on my credit, I do not re-
fn ember tbem.
Mr. Pc'w'e. The king said " all thofse tliat
bad quitted bis ser\ tee he gave pardons to, an
you will find Buckingham and Sbaftabury
nad/^ But, ** that be would pardon hiuj
ftgAin and again,*' I did not hear.
Sir Chttrie$ UariH>rd, It is ordinary for a
minister or secretary of state to say, " !Sir, I am
g'oing' off from your service. Pray let me have
your pardon " Lord Bacon, Mich* II, Mornpes-
sou, lord iVliddlesex, lord Suffolk, had pardons.
Bui did the king* ever pardofi any on^ after an
iinp4?ucliment was ag;uut>t ihem ? This way
of pardoning (aaimpeachm^nl depending) is of
the roost daogerous onseqiieoce in the world,
both to king and people, I hav^ said this Mty
years ago. In the last king^s time, projects
and monopolies flew about, and I was troubled
about tbetu ; those reduced the king, the best
of kings, and perba|j« of men, to own them at
the council-table. It is a desii'uction to the
laws of the kingdom, and of the people.
Take away the bearte of the people, and you
ruin the kmg in countenancing these things.
When the treasurer of tho kingdom disposes of
ibe public treasure, tor Uje kmg's recreation,
still It is pro bofio publico. It is crimen Ue$i
imperii to dastroy the treasury, which is for
aafrly of the people. How shall the Com-
mons be able to support the king, that be may
•id his aUii?s abroad, when tne treasury is
wasted ? Vi ho«;ver does tliis, commits treason
against his allegiance^ 1 jpove that you will
make a remonstrance of the state of the
kingdom.
Sir Henry Beaumont. I am glad to find rea-
80DS and arguments the same to day ns they
were yestenlay. i am glad no crimQ is too
big for this House to nuuish. If the treasurer
be not susikcnded in tjiis setisei I hope be may
be in another.
♦Sir Tkomoi Ckrga. I would bare you re-
DTestnt to tbo kiug all the evils that may issue
mm this pardon. The king in bis speech,
•t the opening of \h'^ r*«»rt; .meot, says, ♦* thai
we were best able r le him from tbe
calumny put ujion li lii >e vorvt of men.''
lioUung Ota mftke the king more bappj,
or shine in greater luclrc, thmt
This is no iiictious parliMfeicnt
lieuKioners are licre. Ilcvie Cbe ktiig^s
IS of gold and not a rod iif mm — Ami
shities lo his greatest Itulre. Tbowli
has pardoned my lord tret8urer» lEe
never done tn any memory, when the wWI
biKl^ of the kingdom bold up tbeir hantlt ftrji^
tice agaiijst him. Those about the king itn
his ear, and represent tbiD|^ to bitn. it
about him (protectio trahit fuhjcctKmfm^)
intercept bis grace from his pailiamcnti ^
two nor ten can protect the king at W^
Let U9, in what we do, beg«C a
tbe king. But still these anbappy
advices are the king's ovm ; wneo we
deliver him from them, ihcy are put up«
him, and what those about liim adritc a
ill advice. I hope what Gower ivd mta^ bt
forgotten, and I second the motixMi to tt A4»
di-ess, tScc.
31 r. Wiiliam Harbord. As lor tbe pardwt, 1
know not what that is, nor wbat means ** pr^
doniug for murder;^' which ih^ kin^easBi
pai-doa, because it is a crime agaiasi a gitafef
than himself, against God. Sutoe thiiniilki
king will not fmrdon. iSuppooe any man kd
sold forty or fifty ships of the king's to lb
French king, or *burnt them, doea any m»
tliink that the king would pardon it ?\Mm
proceed with safety to the kiiig and oumdnfr
The lords have refused you justice, and bsw
not committed the treasurer to custody, %U
you ought to insist U[>on it as yuur r^
\Vljen the earl of MiddlesOK was cbarfwip
parUament lor embezxhng the king's siofCi,b
was immediately sequestered lixiiu parliamcBt
This parliament has impeached the trrasaiae,
and the lords deny tis justice, wbicb llMirsi*
oestors ever did us. As the kin^ comes 1^
wards you, so 1 would have you gQ loaiiii
the king, and 1 beheve the king will nenra^
low those letters to have been by r :fdft|
but that the tiieasurer has been tiril
by somebodv- I can never believe tJiat (ht
kmg is so il[ a man, that, when a wrarwasii*
pending, &c, he should order tbos4i letlfiflt li
bargain for a peace. I desire toatioe ^gaiiit
the treasurer, in the name of all iha ipiMmnmi
of Englandy hut yet with all good mamKis c»
the kmg* I would have a Caittmitu^ It
draw up a representation to tl»< tin
miserable estate of the kingdom, t Uia
gentleman is the occasion of it. ki you sotftf
this pardon to pass over so, you will f\^rvt da»
cover the plot. And ii^ the advii ^^fo-
tieuian had been followed, souj, I tkl
last parliattient that wi;re troublesome to Iba
gi^ntlcman had been cut off. A gentiemaii told
me this morning of still
artifice of iomoiody <
not a member) that u
out— Because a parti
Put both (JllP^tufir |1
tion, ^<c* :
Commotti^, r : _ .ij^ „:
from parliamaii«
aU wtdflDca
il*e repmuii
rtbc ritflil o/ibi
ri|^i
TS9J
Jbr High Treamm,
A. D- lff78— less.
[730
Mr. Sletne.* We have ^pcnt iniieb time io
talking' of ibe tretaiirer's pardon. E7«ry cme
Icnnws the ]iuig''B power of pardoning ; ra^9
of ippenl only excepted ; Wut if you will have a
Bill to ri'stnxiti the (lowers id tkein, thnt mav ^
|»revent il fur tl»*^ fniiir.v All laws that are,
moJet areCci res iinlimited power in
tJie king", for wa *■ bwR, all i>ower
IB in the kiog'. (iie was ont, anil could pro-
oecil 110 tartiiir^ uod Mr. bc^mour pulkd hiw
tlowii.)
Hit Rchrrt SouthmelL One word has droppcnl
fSrom Mr Harhord^ ** that there ia an atMjmi'
naKle evidence conceafed, in the murder of sir
7^ ' Tjdbur^ Godfrey. '* I would have hicD
"li Lee. Pray let no interlocutory
•li . tnt us from the question, of send-
ing ,i/ tMv: Aiiig, as was mof ed.
*Sir Francu Winnin^ton, Tlie riffbta of the
crown are not ouly in the case of this pardon,
but of ujj and our postei-ity when we hare done.
1 never had any difference with this lord, hut
aa an enemy to the king and the nation. Now
what Lb your dut^ to do in this case upon the
kinsr's signification of his intention of pardon •
iog the treaaurer ? which I sup^tose is, as it
were, asking your advice in it. If the kin g^
will pardon the treasurer, without all contro-
i^arsy be has 8C4|uainled you early with it^ to
be advised by you, 1 apprehejid, that is the
reaaioti why ne entertain the debate* If the
lung profMMea it as a le^sbtire case, then it is
but to gire the king advice what is fit and con-
▼enietit to he done and advised. But if you
consider it as you are prosecutors, then yoit
are to conatiier the legTil part; and I will con-
•ider both. He that stands charged, and pre-
tends to a pardon, confeiises the crimes he
•lands charged with ; be takes sanctuary, and
pleads bis pardon under the great seal of
£0gland. The law of England «ayg, ** that
by taking a pardon, be confesses the crimes he
vtands chat^^ with/* This being considered,
what it tit m tliis case for us to do f A pardon
once granted i» sot the kw of Medes and Per*
mui^f not to be* revoked. They ba?e been
4uoneA in Westminsler Hall, much more
may they be here. And now what is fit for us
to do f* What is this lord guilty of? Either his
pvdoii is commensurate tu liif crimes, or it
win do him no goinK A ]es*i crime than of as-
smnioff royal [»ower was in the Sptjocers case
in Ecfw. t^s lime. The treasurer hns ex-
baiisted tbo ireiuurc of the cnrwn, by uc-
Mlfiog a great estate Ut Itimself, .Sec. aiitl en-
inaTOured to Klitle tlio diivrovery of tbi? jdot,
wben il was just coming to light. Now the
Uag eommutiicntes his pardon Ui yon, for
ibe^ and siivrral other oflenct-s, -5cc» for your
advice, in this mattrr 1 will ^[n:kk plain^ and
liiartierge my conscienoe* The law of Eui^'
huulii of an adniirable oompoiition When
gxval men are in the presence of the^ kit»g, I
muil bfldieve^ tlisl pf^reons, in their several
fitatto&s« arc good or bed, according to the ef>
fecU of their mitiislr)\ Should a minister tif
state have einlcavouretl to stibvert the goveniV<
merit, parliaments have power, by 25 Edvr. 5^ i
to declare that treason, and it is the wrMtom oi 1
the government to leave that declaratory powet i
to parliament, that no man, though ever sa|
gieat, may he able to atrnggle with a parlia*
intnt. This lord's crimes are &o well knowQ^J
that a man cannot pretend to be unprovided lal
apeak to them — When came this great lord in ? j
When Popery came, and the Protestant Re* J
ligion was discouraged, and no 6tter man t»i
succeed lord Clifford, than sir Thomas Os* f
borne, a private gentleman in the country 1 1
Have not French councils and Popery prevailed i
and the tri[de league been broken? And badi
the plot pone on, nothing could have saved our J
religion but a hand from heaven. No man ha»|
been prefenecl in court, but a iViend to tli^i
French government. Money wasgiren by tb^l
parliament for a war with France, and T *
man, at the same time, treats fur a base i
dishonourable peace. Though the law wiftJ
made Kevere, that the money should be ero«
ployed for so many ships, yet they are not half
biliu, though Mr. Pepys said ** they would
be built in a year.^* And there was 600}00oL
gone, for they got the money and prorogued
the t»arliament — Money wa« given to disband
the army, and that money was spent to keep
thcni up, and then we ueie prorogued : But
we have been so bit before, that no appro|jriat-
ing clause we thought would serve turn, if the
money ^^^ lodged in the Exchequer ; and sa_
the chamber of I^ndon was thought of, 1^
place it there ; and this, you wert* told, was
against the king's prerogative, and gave of-
tience ; though m the Palatinate War, the sani~
thing had been done before, and so the parlia
ment was sent bome ; and this lord is the per4
son that breaks all your laws. A m^^saage wat"
sent from the king, the last summer, ** That
things abroad had all tendency to peace, but
because of several emergencies of state, the
king was advised to ask of his parliament such
a revenue as might bear proportion with his
neigb flouring princes, the better to carry on
and inpport the government, &c.** This pro-
ject was then brought into the House, aud then
•r^*T^*^""^f*n said, " That it was a subverting the
lit, and the way to make parliaments
s ..:.. Aitd though many gentlemen in
the last parliament were nilting to give mo-
ney to the king, yet they supposed the grant-
ing the king so great a revenue as be then de*
mandeil, would make their use in paHiamenl
crivse, and so becon)c insignificant. And u|»oii
their giving no money, their mettle broke o0^
and ihcy had no money. This lord mutt ba
the person that has doiie these things. How
could this revenue, that the king aiked of oi
the laNt parliament, l>e brought to a<^ust that
sum, but by linnthnt knew and adjusted tbo
treasury P Tbini^s comintj to this liead, say
they, '* How shall wc relieve ourselves f"
Out oOfues a plot, too bard for ilie statesmea
1 JAMES IL Proceedings against Thomas Earl qfDmtg^ [731
same Commons of En^ud protccute tbeioH
peacliment still — But it is to my admintioB
that he iff not committed to custody, tMi^
charged with treasoo, (when formerly the
lords, cdinmiited persons when for misdemeaB>
or only) eapecislly now there are such tricb
of runnings away. We say it is not a gwd
pardon, and may hare a fatal slip in it, k-
cause done in the dark^Let bim plead ids pir-
don in hac verba, and we will plead to it. I
infer from hence, whether it be lawful, or not?
And thoiif^h the king* be surprised in the gim
of it, yuu may not he surprised. A man maj
have as much injustice in tbe manner, as tile
matter, of a grant. Ifthe crimes of tbetap
siirtn- come to be judged capital, the forfeitiR
of his 1,200/. a year— But thoM that eom
at)er us may say he is an example made of u
offender, \c. You can but do these t-ii
things, either think him innocent, or nske
goofl your prosecution. It is a position io liw,
'* That the king's mercy is boundless;'* hm
upon an appeal, if one kills my father, the kit;
cunnot pardon it : I am his heir ; I may hare
TCii;;eance.^ The king can pardon only vlat
relates to lilmscif, no more than he can paidn
an action ot dcUt I will corae a little cIomt.
There are mala prokibita^ wherein one paitrf
the foileiture ^otn to the iniurmer, tbe other Is
the king. Before the information is osp-
niencedl the king may pardon the whole, tWre
being no informer, <^c. JL would tbcrefoit id-
tlrcss the king, to know how this iNudoa mi
obtained, and tlicn demand justice of ibe
king, «S:c.
^j. Maynard. The great danger the kiR^
person, our laws and liberties, have been %
^'ou all knotv. W hat advice to ^ive, eonoen-
intr this great lord, 1 am at a stand. A gral
deal has been said, ^and with good afffdio^
but some tiiinp^s mistaken. The kii^ cassol
panlon murder, unless it is said, in the paidos,
that it is nuircier. A man is found guilty of
uuirder, and he pleads his pardon ; that ii
usual ; but you have not read this pardon, Mr
seen it. It cannot be oUowed, till it be met.
Ihft that which stumbles r4C most, is, that,
when such acts are put upon you, the whole
nation is put upon ruin, if ne do not take Ba-
ilee of this, when the king's life is at sUd^^-
This lord being cliai^Ml not only with cos-
ccaling treason couiniitted, but a plot whibt
upon execution ; I take that for more. I wiH
never spi'uk ihr tU\our, nor aflTection ; bnia
panlon does disrhargo bim in point of law, yd
you may enquire into it, and it is in the pomr
of parliament to lake olF that pardon ; but I di
not think that ^ our Impeachment takes off the
imrdon ; but it is in your power, as a paiUi-
ment, to void these pardons.
l^>nl Cavendish. I am one of those ibr lbs
king's power of pardoning, &c. as many of Ui
prtMleeessors have done. But applyUw thii
pardon to tbe circumstances this lord m in, iis
cruelty to the public to let this pardoa pt».'I
would therefore apply to the Lords, toi
them of our hut message. ■
731]
to suppress ; and this demand was as a refuge
to the statesmen. They fly then to a pardon
for refuge, when the letters tliis man is im-
peached for are all under his own hand, to sub-
▼ert the crown as well as the ]jeopIe. He that
sets up Popery suppresses the royal family —
The spiritual |)ope, and the temporal power of
France, suppress both soul and body. But in
tbe close of the last parliament the inequality
was so strong, that the strength of^thc pen-
kioncni did signify nothing, and the king sent
them home ami dissolved them. And I thank
God here are none of them that I see. £m|)son
and Dudley were mentioned ; and was ever
any man punished for not going against law ?
It was answered, ** That tliey stretched the
law farther than was intended." But shall he
be panloned that has gone against law, and
breaks the law ? No man is so mean as to have
malice in his heart against the treasurer, but
the rights of the king are concerned in his
crimes, and a good mettled man sets up again,
and does the like exorbitances, and gets a
imrdon from the king, and this shall be a re-'
ward for his crimes, and so escape unpunished.
Since this panlon of the treasurer's was passed,
he has got o,i)00/. a year for a pension, and
1,200/. a year of tbe fee farm rents, which is
part of the queen*s jointure ; and has taken it
out of another branch of the revenue, because
the queen will not be so kind to him as to die.
It has boon said, ** that the king lets the un-
fortunate fall gently ;" but never that be re-
wanled a man that has bei*n such an enemy to
his king and country. What then shall I pro-
pose to you in this case ? I would make an
aildress to the king, to take consideration of
this pardon, ^c. — One word 1 heard of the
^ king^s s|>eecli, '< that we should not dispute
this pardon, though it had not passe<l the
usual formalities, 6cc." I beli<-vc it has not
, the
,tbe
secretary's again for the privy seal, so that a
caveat inay Iw enteral, and so to the Gix^at
»Seal. Ill all these gradations pardons ought to
pass, that the subject may enter caveats. But
if this pardon has passetl per taUnm^ 1 woulil
move the king not to pass it, and represent to
him the inconvenience of it. It is not without
precedent that pardons have been voitlerl by
ieiret'aciaif when obtained u|>on false sujjfgcs-
tions, iVc. The treasurer could never have got
this {Kirdon, but that he used arguments to the
king, *' that he was for his prerogative, and
liis sufferings were for that ; and so the pardon
needed not to pass the usual form, that the Com-
mons might not put in a caveat." 1 would
therefore some way address the king, to repre-
sent to him, how unjust it is this pardon should
pass, and pray that it may be stopped. If the
legality of it he now argued, it is a very ini-
pro|)er time. For tlie legislative jiart, we im-
peach him as demandants. The king speaks
to us in his legislative capacity ; this is nothing
to the impeachment that is in the Lords House
U WOM sant up the Isst parliament, and the
passed all the ofiices; as the Secretary's, t
Attorney Cieneral's, the Solicitor (ieneral's,t
Jof High Treason,
Air. fiiti^han. I will suy nothing to llit le*
gdilj ur ilk«|;uUty of the panlon. But vvlietlier,
<iri sucli ati luxuiiiluu, llti^ |iiir«loti <^&ti l^tf just'
JJ^hen a |)nrilun ti> flej^Uuctkvo to tUa people, U
^^Btrtot be, Ttmt cannot ))c n mercy to ibe
^Kfilc lb;ji is Mi, due lliiti^ i:a»riot* b€ par-
oouftd i lie is ratlnl to accotrul for Iw^U
offcucrs ; SDiJ tliat he ^hauM ntlvise Ins mvn
jKirdoo^ (v4 hat us<e nre you of?) ita Jinpfnch-
lueut Jepciicliag. When inert gruw too liig for
tiie law^, yot) can rtiU thetn tu Aci^tiiit, vla^s
Uicy mil tnuntph over (he king's juslice nud
yours too. Before ever the nutine of inn crimen
u opLueO, h<.-rif is u pardon i.h(»pped bctuixt
you and jtisUei'^ f t rs tt ^i^s^i nnd t|;lori(JUsi
urtroj^aijv<* in the U'ln^ to panlon olTenL-eh, &c.
but at tins rate of paidonin^x, ^oii itiiiy Ituve i&tl
pcrMttH Urrnli loose, ajid nil honest men in pri-
coti. If vmi pn>M*rult nol^our liupeaclittii'nl
you mijilcad the kin(^, and give cauntenaucc to
tho«€ ilJ counsels ^^iven the kin^. If he must
Imre bis partl*ii, lei it be louden with all lUe
notorians crinie^<. Naturally all is true out of
thekiDj^^s mouth, bin this speech he is ad'vised
io. if thus man must hare the benefit of such
Biordou, i hope you will take care that no
111 elsje may >
^ Resolved, vem, con. That a messagpe be
mrneiJi?it<ly sent, to retnind their lordships
"** iif the la>it niewag-e sent from this House,
*» relating to the earl of Dnnby , and to de-
** matid thai Thoinas earl of 0anby may he
** forthM'ith sefpieslerrd frotn parhametit, and
** eomnutled to safe custody/'
A present C'onlirenee wau dcsirisd by the
Lords, u it hour dechiiin^- any solijeci-HMUer ;
irht<^h otxiuiioncd this debate.
Mr. Fouk. If the Ijords may require Con*
(ereijce8» without deelariti^ the sidfject-mattert
il aiiiy be Hbout moneys and then you ivilj
never reach them %i ilh a conlerenre about ju-
4icaiure, They aiipoint phice of conllerenee,
and M^e do not. I ant apt to think this an omis-
iioD of memorv in the mesaenj^crr* ; but if uot^
you mukt £end an anii^ver by me^ksen^era of
^aur own.
Sir Tkomat Mtrtt, The la&t parhamcnt,
4bere was a prtstf nt c'onferente des»ired by the
I^rdti *' on matters of ^rreat importuoct;,'* and
ve granted it. When great lhin|^s, as the
I*tot« ^c* were on toot, that \*a!i some matUT
<»f ci»nierence, but Ihit* is notiiiug at all. This
In too \n% iur ncic to adT)«e \i^m, \ will teaie
it to others.
Mr. Vaiighttn. HuppOse that the Lords shall
tell you " that it in necessary to give money to
ship«." This iiiess«^<* cannot ha«e a
ticular anKwer now. but 1 would send au
w you accept
.-. it 1 1 were Ufjon
red upon* 1 km^f
r e»olv<*d a point of
■iWered the Lord*,
r upon that pouit^
Tnanifm uow i
ierv not
tUfiQg iiiieoirc4 it «ireftdy."
A. D- 1678-^1685,
uould send the Lords auiwer, ^* that you will
Bend them an answer by me^ssengei's of your
0«n." And llien venrltlicm word ** tlial tbtl
message is unu^iualf and that we cannot gran
tlteni a conference, before ihey declare th^l
subject-matter.**
Mr. Sa/inottr, I am very desirous to keep i
goo^l correspondence with ihe Lords, and ourj
endc'avour» are all litUe i uoo^h to preserve Lbt
nation Irom the dangfers we he under. This id
indeed an uiiuHual message. Formerly ivt
have excepLed against n general Conlerence^ J
and now, in thiii here is no matter at all — Thi^l
may di&tnrb a giHMl correspondence. I \(ouldi
therefore send a message to the Lord$, to let theaij
know 'Mhat it is unusual to cooftr upon wha
we know not the subject-matter of betoie.**
*» Rescdved, That a Message be sent to Hid
^^ Lord?, to acquaint them that it is not ag^rec * I
** able to the usage and proceedings of parlia* t
** ment, for either House to send for a tJonfe-j
*» rent^, -without expressing the subject -matte
** of that Conference.'^
A Message from the Lordi : ^' The Lnrd^l
desire a pre^nt conference, fkc. upon mattergl
relating to the Earl of Danby."
Mr. PowLe renorts, That the duke nf Mon-J
mouth opened the conference thu.i : ,
** T am connnanded by the lord^ to acquaint
'* yon, that their lordships, hafing taken intrf
*' eonsidei-ation matters relating to tin* earl q'
*• Danby, together with what bis majesty wa
*^ pleased to say upon that subject, hare order^4
" eil that a Bill be brought in, by t4hicl||
♦* Thomas earl of Danby may l^ made for r vc
'* incapable of coming into hi« majesty *s pre
" sence, and of all otficcs and eniployinentijj
*' and of receiving any crants or gifts from thi
*' crown, and of sitting m the HoLkJ^eot lVers.*^i
The eaH of Essex added, »'Thut the Dili]
relates to the beginning of the narrmmcnL"
LoTilFauconherg. " The lynl\n made haste t(>|
*Mbe conference ; and to take away all diffe'
'* renee between the two Houses, have sent ih
" Bpectgl matter of tlic c^onterence.**
Earl of Stiqftibury, ** The l^rds are well I
** contented, if you liaFe a mind to it, to scn4j
** Ihe special matter of the conlerence ; but i
** was the ancient way and usage of parhameni
** to send without it, he. but out of complianc^
*♦ to Ihe Comniuns the Lords have now
" special matter,
Diihittc on the CoHfitrnce^
]\fr Pttjrtf. I thiuk, this conference is of
L [iienct) imaginable, and wi
t tie. I desire that we may haifi
ttmo lo iiuuK «>! It. Now ii is too late to pro-
ceed, and let it be udiourned to Monday
Mr. Vautihitn. Time Is proli*«c(»'<l b*' '
ing the dtb-itt, but not lost. Yuui 1 1
be the waiier by consideration, and i „^. .id,
Powlc. [It was ordered accordingly .j
Mr. Puttie, I would know how tins pardon;
of the treasurer si&atU. If *i has paMea irtih*
I
1 JAMES II. Proceedings against Thomas Eeri of Dimb^t [786
©at the ikie fonoality* the lord chancellor de-
servrs to 1j« iin|ieache(l for it, next to tiie trea-
surer him!tclf'. I tliiitk it is tlie uext crime. 1
would have enquiry oiade of the lord cbaoceU
lor, bow this pardon was obtaioef), and id to all
other utfice^ y it jj> of :fo dangerous a couse-
4juence.
8ir Thomas Lee. I second tli« motion, that
two or three meinbera may attend the chancei*
lor, to know whether the |jardon pajsed his
office, and so the rest of the offices.
Sir FrancU Winmngton, A great lord in
tf>ffice (lord An^l«fseH) satd» ** be knew nothing
of tbii pardon, till he heard of it in the Lonls
House/ ^ This pardon is of more consef^ueoce
than tiventy treasurers.
Blr. ^icitor Finch. As to the method of
passing this pardon by the chancellor, nature
iidt me speak. Since I heard of the passint;
this pardon, 1 have enquired into it ; and the
more I have enquired, it is the more for the
dervtce of the lord that kei^ps the seal. If the
person be innocent, it t»as ill for him to j^et hU
pardon. I cannot say who advised this pardon,
or who was for it, but who was against it I do
know. When the lord chancellor dissuaded
this pardon to be given, and whto he denied the
seal, and wrote a letter to have it pass in the
usual fonns, a command was sent from the
kinif, that he should come to VVhiteball, and he
brought the seal lo the ktit^, and the kia|,^ com-
manded the officer, in his presence, to seal it.
The parchment had C. U. on the top. This is
the true state of the affair ; and if you enquire
into it, you will fmd it so. Pardon me, if my
relation lo this lord constrains me so early to
give you an ac«'«junt of this.
** Ordered, That a Committee he appointed
•* to repair to the Lord Chancellor, and the other
^* offices, and lo enqiure into the Qjauner of
•* Buinjj forth the pardon of Thomas earl of
^* Danny ; and make their report, ^c. Ton
'« ilonday.]'
Monday ^ March $4M.
Sir Francit Winnington renorts. V^e repair^
ed to the Chancellor, according^ to your com-
mand, to enquire into the manner of passing tlie
I>oid Treasurer's Pardon, The Cotnniittee vvent
10 the several offices, where Pardous always
must pass. At Mr. Secretary Coventry's office
ihere was no en try, and Mr.lSecretarysaid, * Ue
* knew notliing of the entering any such pardon
* in his office.' Then the Committee went to
lord Sunderland's office, (the other Secretsu-y .)
Mr. Bridg^man, his Secretary, assured us,
*^ There was no entry of the pardon there/'
We then sent the chairman of the Committee
to lord Sunderlund, Sc€. He sent os word,
** He knew nothing' of the pardon till the king^
ac<|uamted the parliament with it.^' We found
iio entry, '^c. at the 8ig'net*C)ff: *' oixi
ibenoe %re went to the Lord Pri*y e,
where w - • v Srf^ and the Luiu i uvy
Scftlfati I if suob a itardoo bail amwunea m
I ic „ ..i; would very well bite however clear lord Kottingluim iiii|fklW|«tai
a bclai?e he would have |>as8«l it.* he wrote Uiw treotiic ■ Ttuil llir **
Then we west lo the Lonl CbaxioeUfir« ktL wba
said, « As to the pantou, to* lie nollicr admd
« it, drew it, nor altered Ofi# word of it — And ai
*• to the manner, &c the trettsiiivr dcliieni «
* to him, and asked btm, * Wtkctber mmiiact
* ^ omniti»oda indictameota, %e, tmfietiKus vd
* * non impetitus, did extend lo t]»e impeach
« ' ment r The date the 1st lyf Mmxt^^ ke.
The treasurer desired * That it toiglit fmm miA
'all the privacy in the world, beeitise lie i»«
* tended not to make use of it, t-^ -e i^
' nesses should he produced afir>* ' atlft
' trial, and then he would make u^e at 4 ttai
*■ extremity/ He thereupon wrote the trtmmm
a letter, ' That it was lor the service dt tk
* king, that the pardon should lie coanidaedi
* ancfif he would take his ad^iec, be abouldkl
< the pardon pass in the regular caune^Uift^
* vent resuming' the impeachtneot agiitti
' him/ Then the next dmy be nwi binv
he declared to him the same advtoe* Tbi
treasurer told him, 'That the king mi c^
^ solved to have it done in all privacy.' T%l
next day, the king* commande^l the aeal ta U
brought to him, and commanded hiin lo fiile k
out of the bug. Then the king wrote hts i
on the top ot the parchment, atui the
that lumdly carries the purse set th*
and at that' very time this was doD«:
not upon himself to have the custo«iy ul u^t
seal. And tbe Chancellor farther somIi ** Hi
took upon himself to make no tncnKirisd of ibt
pardon in his office, and that it was e stunpiii
pardon by creation."*
* Mr. Hatsell (4 Precedeals, 1Q«) mt^aaa,
that ** In the year 1791, pendim^ the iml«f
the impeachment of Mr. Hastmen*. a *inaB
pamphlet was printed and puM
** A Treatise of the Ring's Pou
»* Pardons in cases of Impeachtr iii^
neage earl of Noltingham, Li»r . Iiaa*
cellor. In the advertisement preUj^ed tii it, H
the following entr^* : *^ There is a n»eraoralitel
in the first leaf ot this tract in th^ * V > titii^
of N icbolas Hardinge, esq. Cler I I oat
of Commons, in the following ^ronis: * IVb
* treatise was trait fcribed from a Ml!^, eoilllM*
* nicated to me, by the right boncmralife Mtm
^ Onslow, Speaker of the House of Commom;
^ which was traiiscnhed iroiu u tuanuioift
* communicated to him by <»w«arl«l'
* Wincbelsea and Nottingh n i:>> mtmni
* Mr. Onslow, that it was written by Lk4
< Chancellor Nottingham, upon ibe ucgvmi iT
* lord Danby*8 pardon.* * N. Harilitige* l>ie-
* 1, 1731.* 'It is very properly ubservod in lliit
advertisement, ' that the opinion deliv trri fcy
« lord Nottingham in this treatise^ tIs. * ThA
*' impeachments do not remaia in tiatm vet
' from pailiament to (tarliantentt* is rery id*
* feveut from that which hcdelivcsed urfaetoi
* on upon the trial of lord 8tai«nt/ Aneter
obserration is very obvjoua on the 4odtam
eoslftined in this nampblet, wtlidb b| TlMI»
Mr. Sttehei^eretL By t\w Ri*port tlH\t ie Tn«ite
to you, il is vi$il>le« thml tliis iiaiilnn, nnd the
iimnwef of ifsiiriifij it, in as fiitrk ajj the crimes
it has pAnloned, agtiiost thf" fiuit, M" Uicli. 2*
•1
Iti -Tr/mi .1 pardon, wbif h mi-rht !»♦> after-
* in liijr ni tit,*
il I*- n|»Ofl 4.j ' I , I* of
theHoiiWM^ > (on the fUli Murcb,
1678, H ho \* I tl to attemMiis tnnlsbip,
to ern;nirc riilo lUe tnaiiner of sumjj fortlj tord
l>«nbv'« Itjinbn) thut he was so rautimis ou
that occn»(oji, nh to be able to assur*.' the House
of Commons, » Thai he neither tidvi8ed« draw,
•or ilti^i-tfd one word of it,' Ami alWrwardg,
wheiulie kin^ onkied the seat to be affijred,
* it was dfUiL* by t!i - '^ ""- ■'-ripa
* the puree : and ' did
* not look n[iou Ua...^.. ,•. ..c»,^ ,.,v ^..^;.. .y of
* the seal.' "
As to the oliservation concerning^ the dif-
ferei»ce bettvet*n the opinion declured by lord
Nottingham in hi^ tretitise) nnd that \f hidi be
ileliveted and ftcte<l on upon the trial of lord
btafford, see a Note to toL 7, p. 324.
In Hojyer North's Life of l/^r*l Keeper Giill-
lord, lord Nottingham's * ^' -^rth e^l'i
it, 18 nolierd iti » ]ia««a{^« tl» d\vhi<:h
IllJiy irprhM|i«i jiMlify lU " '; re.
But httle i»f It ift iron ilh
lite C^ttte before n% yet tm- h- zirm n, , n jn iiion
not Tory remote IVom it» ujid iuis a ncarrr rt»-
Mm to tratiRactions and to (H^n-fiong at fVe4[ijient
jBCOOItvnce in cones of tit is (imod which ure
fvpdfted in t h ia Col Iret i ou ,
** After the lord chiL-1' justice JHTrlefi was
IMnoied iota the kinj'» privy council, which
wuvonictir
'?e ciVineinTo the cnbiott.
lb«r%went t
'h\y
fame
of liis j^reat-
nesi at com t ; w ! .
i*iria), nl-
tbooirh fiueh inr
r lip re-
V" ""' '" ■
ms-
Ik
yjt-
pfShllotK tl '
1 _
tnorninfiTt ^^
•h^uld t t -
token i
tbeiKt, ^;.c ;. .,.
Thia «*•# certain
f engfine, 1
lo rear ut*ii itiltO
Jv : and
the pr«i
-of'
it. VVr
'^]>.^ ,
COl1ltlM<0ly 4tJ»Ul*rd ik
iuvour
r tr>
prvmitT miniAi«.T ; aure fn^
r
; ny
tiiiuif of tl»e law tlmt
»:t'
.m. It lu to ,
W ffRieiabwred that.
thft trad«? of
r
■ ;**4|fnu*ti
iiti
cofinieil
al trtiuti »'* III' !
.,.:. ,. .m"
diartefv, »« th<
l^a«.i .,«u : ,
ibonld >
^mmn •
"- 1
lia care waa lalMD that^ li
VOL. XI.
:ot
[ which Hirecta the method of passinpf the sea ^ _
Afc. Thot this pardon is nou^<ht, I doubt not^ '
ami not according^ to that statutp, nor do I dovibt
that, wheti his cunning has dt^ ' ' u, yon
rnay have your end. The s« nj^hl
of entering a caveat a^in^t mi > juutnu In
his ^reat honour, he shoijld hare up pea red so
In the country, and, in cousfquvnce oC that^
whercfer he went, all charter?^ must needs fall
f)o%vn before hiin ; and, for th»t reason^ the
towtiK were to he prepared by Quo Wnrrauloji
scut down, This affords an 11^ "lition
how ineno persona derive to li: uierit
from the power of (jreat ones, \\ ho t>liaii asrril*o
to their inferiors those *fery erent^ which flow
really from their own power. II#t*e ilie chief
justice is made to seem powerful by the king,
wilh whose authority he is graced ; and that
TtinkcH the aftVip^hied towns, at bis instigation,
surrender. This must be argfited to denion-
Btrate to the king that the chief justice had a
ijtighty influence upon the country, bsTing
done p'cater things, in his tnfljestv's sen ice,
than any judge had ever done bet ore ; when,
in truth, it was tiot bis own proper influence,
hut I he king*s power, throu^^h him, thnt had
such virtue in the country , It was so tt\m
with respect to the city of London j over which
the chief justice exercised a sort of violent au«
Ihorify, Thut he had a ^reut influence there
WQ's true; but it was because the citizen*
thought hint! a great man at court; and h<i
obtained fiivonr at court, because he was
il»ought to have a greut influence in the city.
Thtj« the court conferred their own influenceii,
and took them back by reboundi as so moch
merit reflei'led from ihm person that inaoageti
them* Thet) it is also to be remembered ttiat
the north of En^rhtTid i-^the ?=ftit of the Raman
^ frigs wtre to lia
I , \*jth respect to
tlvi'ii*, which no olhtr ul the twelve judg
would have done, and I am about to reJ{it€\
•♦In the course of this uortheni voyfig
which was corried with more loflitiess ai
^\ than had been known at any ai«i
ip, the charters, (as was to be ex*|
m; Lumlded down, and the chief justtc#J
•d atl the under- RheriflTs and hnlhfl«, tdj
^,, him perfect lists of all persoof* who, upoi|l
account of recuKancy, by under cointoilcrtcn
M hen he returned to London, and hi«
servicest which aryiiei! no less abilities to i
the king, were disnlayed, the next bU^^
his being appointed appointed to attend hl|
majesty at the cabinet. The lord kc'|K*r, wlu
was but an observer 4 ' otions, did in
gin«^ that somewhat ry wa* to con
f ' iM^ncjrtmcM i ather becans"
I morning i o^ were uauall;
, evening?*) nn m i.f of V^-'
ship * Uy be ii«iti*(taut U> s j
K .1 -.«x^r,;.... w.,..n t.
I eottntenaiicei ot tbi! great meiii wlioaec^ui
1 JAMES 11. * Proceedings against Thomas Earl ofDanby^ [740
Mr. Garroaay. The Treasomr hat miitakeiL
himself in this; &c. and I am i^d he has lo.
Now let him have do advaotaf^ opon yw,
since he has missed the right way. Gooa
759]
the nani« of the House, if vou, by order, &c.
resoUe tliut no surli patent be entered, I doubt
not but it uill Iki! so effectual, us that never an
uthccr in Enj^land would dare to touch it.
ubie ^rravity satisfied him that they were upon
their {f uaril. But what the matter was, his
lordsliip did not discover till lit' came to the ca-
binet ; where, aftttr the kin;;^ was come, and
they were sat, my lord chief justice Jeffries
stood up, and, with the rolls of recusants before
him, ' Sir,' said be, ' I have a business to
* lay before your mujc5tt3^, which I took notice
* of in the north, and which will dc^iervc your
' majesty's royal commiseration. It is the
' the case uf utimlierU'Ss numbers of your good
* subjects that arc imprisoned for recusancy. I
' have the list of them here, to justify wliat I
■' say. Hiey arc so many that the i^icat gaols
* cannot hold them without their lyin^ one
' ii|>on anoUier.' Anil thei/ he let lly his tropes
and figures aliout rottin;^ and stiukiut;- in pri-
sons, concluding with a motion to his majesty
that he would, by his royal parilon, discliargfe
all the convictions for recusancy, and thereby
restore liberty and air to these |)Oor men. 'I'his
motion, at that time, was indeed a swinpfer ;
for, in consequence, the execution of it, by such
a pardon of all convictions, had lost the kini^
irrecoviraljly, spoiled all future parliaments,
■el up the fanatic interest, his majestv's de-
clared enemies, and disabled his friends from
appearinj^, with any countenance, lor him.
The Iaiii(ui^rc h:id been, * now it is plain
/ you wuchi not believe us. \Vhat is popery,
^ ii'ihis be noti* What signify the laws? Will
' you not expect some better security ;" And
the lila>.
''His lordship was not to learn sue h conso-
<|uences as these. But then; was yet more,
and what directly concerned himse'if in the
duty of his oliice. He could turn his thoughts
no Wiiy char ol" precipices, which, to liim,
were fat;d, though othei*s made account to leap
over tliLUi. It must needs occur that such a
]iardon must pass the gri'Ut sea), of \\ hich he
was the keeper, whose oliice it m as lo affix it ;
aitd alilioii^h, in strictness, he could not dis-
ol*«-y tl«;.* kiug's eiqiress command in that, or
any t'r.ing eUe that might he called an act of
j^race, nor be rendered criminal lor so doing ;
>et all the lo\al purty of Kiighmd, \\\\u wcie
Iiissure friends, \>un!<l have c^pccts'd iVo!:i him
kuch sli'or.g and plain uuvlct; to the kiu«<f, as
might hu\c avtilcd him from such a ['C'r::ictous
■top, \*hati:Vi.r the cons..iucnce was to I.im-
. telf, who oii^i't, as rK.ny would have s;ii<l, lo
ha\equittuu ihe hrals ruilier thou held lueui
on such termh ; anil, for certain, the next par-
liament had rcitnlcd it in ail extremity.
Mow let us see with what temper, prudence,
and courage, liis lordship comported under this
fudden and desperate trial.. After the lord
dilef justice Jeffries had done, and composed
his rolls and pa|)ers upon the table (which none
there cared to inspect) his lordship, the lord
. impVt iat a while silent, as the rest, ezpect-
ing some of the lords, eminently in the Protes-
tant interest, as Halifax, Rochester, &c. sImhiM
U'giii to speak ; but finding no probability tf
their saying any things, but rather a disposiiiM
on their parts, ttt that tioie, to let the ibiif
pass, he applied himself to the king*, and *$ir,'
said he, * I humbly intreat your majestv that
' my lord chief justice may declare Whether aH
< the persons, named in these rolls, were aclu-
* ally in prison or not.* The lord chief justict
hastily iuter|>osed, saying, he did not sure ima-
gine any cue could suspect his meaning to W
that all these were actual |irisoiiers ; for ill
the gaols in Kngland would not hold tbeoL
But if they were not in prison, their case «ai
little better ; for they lay under sentence of
commitment, and were obnoxious to be tikn
up by every peevish sheriff, or magistrate, a4
were made to retleem the liberty they bad vi^
gross fees, which was a cruel opprcssioa to
them and their families. Then the lord keqw
tunied to the king, and \ Sir,' said be, ■ I brf
' your majesty will consider what little resM
< there is to grant such a general pardon, h
< this is, at this time. For they are not all fr
< man Catholics that lie under sentence of la-
< cusancy, but sef,-taries of all kinda and des^
*> minations ; perhaps as many or more, vhi
are all professed enemies to your
* and your government in church andSMa
< They are a turbulent iieople, and alwaysttir-
* ring np sedition ; and if thev do so much
* u hen they lie obnoxious tn the laws, «kick
< your majesty may inflict upon them at voir
» pleasure, what will they nut do, if yourW
^jcsty gives them all a discharge at onoe/
' That would be to quit tlie greatest advaola|i
' you have of securing the.peace of the natioi.
' is it not better that your .enemies should lift
' under some disadvantages, and be obnoziusi
* to your majesty's pleasure, who may, if tbiT
* are turbulent and troublesomo, infVct the p^
* nalties of the law ii|Kin them ? And as toiki
< Itoman Catholics, if there be any persons I*
<. u horn your majesty would extend the favov
« of a pardon, let it lie particular and )PX|wt«i
' and not universally, to set yunr eiieiiiieS|Si
' will as friends, at'ease. And, after all, t|K
^ disadvantage the^' lie undf r, is but the pay-
* ni.'ntof some fees to officers, which is cooh
' peusated by the exemption they have fioB
* serving in* chargeable offices, which oChtf
' conibrmabtc imtsous su>tain. But, in a ge-
< ncral view of the ill uses, that would be made
' of such a step, in the nation at lai|^ to the
' prejudice of your majesty's interest and af-
^ fairs, both in and out of parliament, as ibcy
' were obvious, so the extent of them isbfysH
< mv view, and, as I think, have no end.;' or
to this effect. The king gave great attenlioa,
and the other lords wondered ; but no faitiicr
word was made of the mattar; amltli^fia-
741]
^fhr Ui^h Treainn.
with your bastnww of ilit^ cmvent, ttiat mither I
ihi^ V othnr fi&nfun, (m^ iu this clttn-
iJ.- ^ j
Sir J f'jni u irVfrttffiijMff. I propose, tllQt h
cw'tl^il lo dill* I }ni%iii( o, Thflt nigluhis l*»rd-
%\\. [\c\\o\y \ BunilitWiW
»" : , ^S '^^'^*'' ^"»o, kr»few
4li^ > (i( ft. Hut Ito ivouUl MomFUnwJi
br 1 exclniTinrinns, n«, * WIml cnii be
* ike tiieaiiiiigl * M %t»rk ni^id V ant]
tl»« like. Thjii ^^ ^<* lo*»k hi* pockel-
alnmnnck, nmt, ni^oiiui tlie <!uy, irroto,
» 3loti(»ii,* oil* swlu^ oV'^tiii/
* Moliuu, wlncb I ftloiie opposed.*
F~" h~ '" -"-r^l ihiii nrti*>n of bl«tbemORt
til V" bad I'vpr done. He was
i*iH ,i, '->iicv ibut oiu» ^eat end, of
tliat pr Mtifiiif vvsji lo piitulbom
fn bi» I , -, of dilemma, he:ivehtui
out id' hn pt;u'L\ Kor, if llie king tiud cora-
mandrt], rjn-l he n^^fn^ed Mi p<u lUt- tiualsto siich
II I ti be dt>*erveJ to be removed by n
jn >H'e, If be bad complied, tbca the
f>arUununu bud fftpciujilly done it. And ibe
ftbift the lord Nottiiiijrbani used, in f«eabn(r ibe
mrl of Duribf *is ptirdoii, tbat is by surrendmng
ibi' ««til lo make it the kinu^'s ad (which be
•lied a siamp of creation) mi^bt not have
ri^l bis lordsiiip'ii turn 80 uelT, v4bDtn iMitb
|iapifit and farmtir jsirove, with nil their nugbt,
lo reino^ ^ out of ibrir way : and siimll prtten-
iton»< bad ftpritd ilteir tiifti, as appeared in di-
^ffiG $ilteiifpN of iliftt »ori, which arelarg-ely
di^plriyed rUewbere, mid particularly in the
£x;imtri. Uiit tbti:^ much 1 am lud^ by \\\%
lonbbbipS iioicss, lo liay of thccabinel eounctl/'
North U a very prejudic^t! writer, and Terv
/Dcxact VLS lo malterfi in which it Appears not
Low ibe luHui'UCC of bii ordiimry prejudices
coo Id be ixriteii. And ii
1 Lit st\li [\n- iMri»;i.
j^ruous asjiiHualion of *% i
: 'Cr-
iicial jmlantry,aud coj
:i-
"^i-
lubjy ortVusi^e.
. Ti.- -♦ ^ '^^ TT o
. e
11, prescribes rcry
y:.
ill
Im' purvued in pjiF<-
!<•
»i<d otbi'i- wriiiujfK,
t\u
and under tb<-' iht-
\\v> ^
if <> n-jukites the
fees to be t»keii
uployed
in pA'iSfiny' surh
UlCtS [K5-
aaltien for d
•ui
the coui>^ prcjHirib-
t4l» bm tf p'
%*.'<
•t, n ) * IbattbiPittct
•oraii
d
rn iJit^- «ame, be not in
* any \
to
anv rnnnnt^r pci'i<>on
* <H
' ' iM'M sliall
*« I,
..,.0,.g-
4* .
or
A- D. 1678— 1<;SS,
fofirt of ft eavnti he. may be drntrni lo be en J
trrcHJ at ibe several otiir«?s, 1 h^Heve tlmt
leanH'd rniin can pret^Mtd, thai a (lardoii eanj
IKi&n in bar of an impeaebiticut* tl is a diUj
* fi<$ nt^.\ *iu-fi officer and oflieer* a* shall bnTH
* the \ i any of ibe kii»^*s ^eals, tlieif^
* am; I i clerk!». shall and iuhv M:it,t
* write and deliver and procure x\\
*■ wfitui^j Hntl deliveriot^ of anv sucli I
' thin(Ts 6incernin£^ ibe ki i
* an aforesaid, without btit
* any manner wnrrnnl, or paviuif i\uy uKaiuef^
*■ fees at or lo the hisfnet or prify wul for tb€
* samCf «o I bat liie name or tmme5 of everj
* an eh pei^nn or persons as $»hnll procure tb«
* sealing of any ' * iisf or thtnt^s on fb<i
* kinsf'A behalf mI^ be entered in th4
clerk of th<^ It.ni
iMiok alter this sort
* * Per A. ad innndiilum doitnni regis/ anju
' thiii^ in this uet rouLiiurd i*i ibe eimtrarjfT^
« notwith^tamlinij/ See ako 3 lilackst, i'ontm^
2iU, *2ir. Coke, 4 Inst. 55, 4 Btackst. 4003]
Concerniutj the power of pardoning im-
|»€ached pcrt^oiis^ Blackslone (4 Comiu. 399»|1
says :
•* Thefe is also a rejtriclion of a peeubarl
nature^ that affects I he preioQ[utive of pardon*
ing, in caj>e of padiaaientary impeachmentii $ i
viz. thai Ibe kirig^^s pardon eannol be ph^adeil j
lo any such impearbment« so as to impede ih(
iiMpitrVi and stup ihe pro^^eeotiou of t^ieat atii|l
nolorious offeoilers, Thereb»ie u btn, in tb^J
reiifn of f'bnrlo: tbe sceond, the enrl of Danbyf
wii« itnpraidied by the House of Cominoti!i of I
hig"b trea-^on, and other mis»!emc!»nors, andf
pleailetl the kin^^s pardon in btir of tbe same^J
tbe ContmofiH atle4)«f«*tt, * that there was noi
* precedent, tbat ever any purdon was granteiti
» to any prt-^ou impeached by the CommoniJ
* of bijfb treason, <»r oih^v hvgb crimes, de« y
* pending the ill «u ;* and ibereupon
reaolfcd, « that i hO pleaded was me-
* pil ftiul void, not to be allowed ifif
* bnrof the imp ' f the Comniona
i I — * . j .♦ i^jj, MiHf ,, ic ainiiioi ibey iistdf^nedl
I to tbe House of Lordt, Mhat th^]
- ,. ,. , L •!, Ii uJfvn 1,1 r..» :i Jjftc of an im-
* p«»ii ii<te nod *-ffec||
* of iu , I i ihis |ioint l»l
* admitted, or umI, it would total ly'1
* diwou!*at:e rl • ^ny fijr tbe future 5]
* wh«"i'<*b\ I r iun for ibi" prescrt a- *
*tionof il .voulJ lie d»« troy «d**'
Soon after tbo J«vvo]utioti, tbe Couimoni» r<t*
ne»i*i| the usuot* Haitit, nud iot**d| ' ibutn jjuir*
' don i% n I li^j in bar of an
' ment/ ::th» it was ena« 1
act of itetlN-nu Mil, 1 : .md 13 W.:5, c /, - ni:it
* no pardon uodt-r the qrral seal of Enffland
potntevi by the kntg'n biLfiineis m fttdrc«»4l,
^ 8a hi file 8fo. «diuanf London, 1608* fur, a^tcr the iiopeacbuiviAt aud
it
7451
1 JAMES II. • Proceedings against Thomas Earl o/Danhy^ [744
we owe to our kiogf and country to be very
c»utions how to proceed in this matter; and
thai it may be put into such metliod as may
have i'liect, I would not confine ourselves to a
caveat ; that looks- too little tor the Commons
of Entj^land. Consider these two tliing» ; iii'Kt,
what to do in this ; and then, how to prevent
it tor the future ; and I hope you will resolve
on apt methods to prevent such mischiefs fur
the huure.
Mr. Secretary drccntry. What is moved is
full of reason. But as to tlic matter of pre-
▼entiou of pusbini^ pardons in all future cases ;
if the commons urjj^e, that no pardon shall pass
till they lie heard, no par.icuiar man gn€« to a
feucral — ^^rhat no mnn shall fjfet a panion, till
am lieaitl — That no pardon shall pass for
robbin£f or killingr such a man, till 1 am heard
geucrally — ^I'hat never was ; hut that a pardon
pass no farther than a caveat can prevent.
Mr. SachevtrelL The motion that I made
was not s^eneral, hut only to this particular and
individual person, the treasurer.
Serjeant Eilis, This Repoit is of great con-
cern to do soniethincf upon it. Consider whe-
ther the chancellor, Cv the duty and trust of his
place, ought not to have acquainted the king
with the exorbitaucy of this pardon ; neither
fit tor the king to grant, nor the treasurer to
receive, in a clancular and clandestine manner.
I think that you may declare " that the chan-
cellor has not done tde duty of his place to pass
this patent ;" an illegal patent both in matter
and manner ! I oti'rr it to your consideration
whether tlie pardon is not absolutely void ? The
king is the fountain of justice and mercy ; he
may pardon oflenders, but some things the
king cannot pardon, thoufi^h the indictment be
in the king's name ; as tbat of the repair of a
liighwny, or a bridge, or any nuisance, because
all the people arc concerned in it, and it is pro
BIX rcliel lords in 17 1j, three of them were
from time to lime reprieved by the crown, and
at length received the benefit of the king's most
gracious panion.
In a note to this passage, Mr. Christian prints
the following record ;
bono publico, 6ec. and is not this matter of tb«
treasurer, ^cc. as public as a hiffhway, or a Boi-
sanee, or any other thing ? This impeacbmoit
is at the suit of all the Gommoiis of fiDgtead ;
neither the king nor the attorney general am
parlies to it. It is in the nature of an appal
of rape, which the Idng cannot pardon. Aai
now that all the Commons of England aieii
the nature of appellants, 1 offer it to your coa-
sideration, and wouM hawe the gentlemca ti
the long robe consider, whether this be a goad
pardon, or valid in law,xir not. 1 advise uut,
notwithstanding this impeachment of the Hoom
of Commons, this pardon lias walked io tk
dark— ^Lpt the treasurer put his case to it, whe-
ther it be a good pardon m law, and put it whe-
ther he ought Dot to be imprisoneo. I iMVi
therefore that you will co ou to the lords up«
the impeachment, and desire that tlie tnssnnr
may he lie imprisoned. This is theressoarf
all bur misfortunes, that the lords do not im-
prison him, and do us justice at the finl.
Mr. Poicifi, 1'he entering a caveat by tUi
House in the several offices, £cc. a^imt thii
pardon of the treasurer is a diminution of tiM
authority of the House ; our obligation suit
be to the king— Not the officers to go to efmj
petty offire to enter caveats. The Tery fn-
curing this pardon is criminal, and it will onla
those that have been faulty in it criminal, k
for the pardon, I take it to be a void pankis ■
By 13 Richard 2. ^* all pardons for trssfQ%
murder, rapes of women, &c." 18 Hea. f.
" there must be a warrant from the cfaaneeiT;
and a recipe for the date of all pardons;*' odirfr
wise obtained, they are void within that ML
Pardons must go by regular steps, and ail
things are to ))ass through those hands tkit
may be accountable for them ; otherwise, fasdi
I the king, and the subject may be abased.
I Lord Coke, in his luNtitutes, says, ** that if tbc
lord chancellor put the king^s seal to a gruH.
' without a warrunt to a grant, it is tressoo.''
; If any thing passers the seal without a wsmol,
I it is void. It is true, that writs, and things flf
I ordinary course, as pardons for killing a peisos
I se defendcndo, or by chance- medley, may pn
without warrant ; but where there is not a ws^
rant for the Great Seal, as the statute appoiBll^
it is absolutely void. The order of the dsyii
to consider of the conference with the I
" Item prie la commune a nostre dit seig-
neur le roi (pie nul pardon soit grante a nulty
personc, petit lie grandc, q'ont este de son ' on Saturday," whert; they acquainted yon willl
founseil et serementez, et son cmpeschez en
cest preset partcinent de vie ne de membrc,
fyn ne de rannccon, de forfaiture des terres,
tcncmenz, bicns, on cliatenx, lesqueux sont ou
werront trovez en aucuii defuut encontrc leur
liirearic:?, et la tenure de Icur dit sercment ;
inajs q^ils ne s:Tn)nt jainmes conseillei's ne of-
ticers dn roi, niais en tout ousiez de la cnurte
Ic roi et de conseii as tonz jours. Et sur ceo
soit en |)resent par lenient fait estatut s'il plest
au roi, et de touz au res en tem|is a venir en
cas semhiablcs, pur profit du roi et de roiaime.
•* Ues|H)nsio. — I^ roi ent^fra j^a volente,
fsome micltz lui semMera. ~
M, a. 288.
their intension about a hill tor banisumcnt of
the treasurer, ^cc. I supp<ise that the meaaiss
of the lords is, that you sbouUI lay aside the
impeach uient and embrace that hill; but that
nay is very improper ; for I never heard iift
cuiifereiice upon an onl-c for a bill to be drawn
up, from either ol the Houses. Tlie ssas
|Kiwer that brings in this bill on Saturday msy
throtv it out on Monday, and can this convincs
any reasonable man tliat we du lord Usnby
justice? If Danby can be had to answer jus-
tice, then there is no need of this bill, nor bill
, of attainder. Lord Cromwell advised an actsf
Rot. Pari. 50 £d. j attainder, and the person was never brought to
triali and lord Cromwell was atttimed & tho
t46]
nr* I bope, ft« Ikai was the first
precedeot, Atr "^ :* '^riil he the iiui. If men
l\y fpom Jll^| ' net of alUimler follow
them ; but I aui ^ . .1:^ 1<>r<t*!»tnat, aiul 1 i«ould
g» on in the same steps &s before. Oue (»ru-
oess of lnw U us much mt jud|rtn«ot of court.
The loriis deny iuBtict* to tJiia Hoiijse, noii the
wlioi^ kingtiotTif otc. aiiiJ i would send n tuei-
mm to tJie lords to demand justic« of thetu*
•no tend it io writing, to ticsire that thtA lord
wfty he cotnmitted; and ^h^n tli<j lords wilt
not' do it. Add refiiite to tnke it into considcra-
tioo, if great men may offend with inipuQity^ I
know not whftt will come of it. Therefore I
move Rs Itefore.
Sir Wiiliam Pultmiy, It mny be this pardon
It r.iii^i^tvinfi], and will depend upon averm*fnt;
hii q; thut the *brtii be {jfotnl, und i!ie
ny; c, I onnnot S|H;iik to it till 1 see it ;
iMit whcthpr the kini^ c«n pardon any ^eat
miiiifller itiipeuche<l by tlie Hoime ot Cotn-
mons, or not^ ik the ipiestion c*
8ir Thamia Let, \ would have you demand
HCmlVmice, upon the Nubjed-ruatter id' the
ImI cocillBrciice, imd s<» take an opportunity of
PWllting with the lords on your ri^it» 6cr,
and how thi» biil is nut suitable tojiiKtice^ and
thai it wdl look like an encouragement^ \c.
«f tiit!ir asiunitiit; Io cotUDMt, or not commit, a
penKin imp««rhed of treason, arbitrarily, and
the olfendir may be protccti^rl for want of jus^
lir«, that ho may rutirc into the country.
Hhal M hclbru you ti» day is nut the pardon,
&c. \thii1ifi tt III iMMiil or not GTotHl, hot that
til niportmuty of I'.om-
fin I loulii be so near the
lliiii;^! a« t(» put yiiti to nil this trouble. You
inay show the iorfU, that Ihc-y are tlic ffreat
Cotirt of iiiMice, and how can they punish ili<
lertot' enari» hir iklay of jiutitx^* when tht^y
shew tl .iiiuple ?
Sir / f€t, I would hare a conference
x< >^ " ^ rniher than a meatMi^ ; it h»wH
H-.
t s «iiid It'ttcr K do, urbtift peraons nitty
I (itn-. \ wciuld aak a conhit-nce
BSpl)^ rill, u b^eet • m al trr o f the kat csotitVrt' n<'e .
^^■S 1 n ' lie
f €^ to contiT abont» la not ours or the lord^ njf ht,
I fi*fo|lM' jrartlun* but theiii;hl of the kingdom.
\ All tlie itmiiuii im I.ti^hiuU uiuy ci^t nwuy at
this r*te. i would thrntbre send io the lords,
to (leui;uid juKtire ii|fauist the eurl of Danby*
** Ucsolvfil, Nem. Con, Thiit a niewa^e be
*♦ urnt In thi lordx, to dematrd juirtice, in the
«^ nttne of the I 'ommooM nf I'^n^hnnt, ng^inst
•* Thoina* t^ifl of Daidn ; and iiu\% he may be
'* iiiiiiti'diiiuly »<-(picsiered from p.«irh:«ti>ent,
** and committed to *ufe cn^ltnly '*
«]>a8Ai^ ^'^ ^^ Mciiiiiti fui ^ni Addie««tA ii»e Kinj^,
In lurtty of the earl ot
_ JJ
,iimkev€r€iL I i f late, hot one
vthat had bf^netit by
Tti4t a^oiiuit tU«£ duke of LaMik-r*
A. D. 1678—1685. [74ft
dale, and for preventing the prowinf greatneaa
of France, you hud excellrnt success In^^j
That's a sinfj^le instance against ail, ^c.
Colonel l&irch. I remember not that %nr
in other tlting-Sf as in the declarat I j
know not why we slKiuld tw>t lay t
kin^; the prejudice this will create, if thv king
renews the pardon of lord Diinby, It is
posaibje this nation should be defended, if \imn
be this precedent of money suuandervd tway^
Au has been in these six yeans last past. Then
are tifelrc or thirteeti petty farms upon
cuatonw, thon^j^h givea for the d«h ncf^ of
sens by act, 6c€. I wvuhl U't tire lln^ knon
this. A thing may be well dont* I y three
foijr ofiicers, and ill done with fuurleeo I
putting io a friend. Monw t,^% I., .-n iin-gi^^
and lemittedi tor what u\\ I knof
oot What has bet?» well h 400,0
haa been ill dcKie with 70u,uou/. la the ga
risons of thirty guns, noi ten mounted i au
this, by putting in fricitds to be officet^.
for the plot, ** Damn me« why should
meddle iiith the plot?'' Aad ''There ga
Gates, (sa)s Danby) the8avioiir of EngliyMl j
1 hope to see him haoged within a month ^
and persuades others to go away where ihaf
nay he i^ ^one — lUther 5e under one tyrf^nt '
tliana hnndreil — I mean Fr:ince. A^ for this
pardon, hod 1 a hiimliY^d lives to breatlie, k
wuuld not breatbr one of tlwm if tbeie ihtngt
be lit Illy red. 1 woultl therefore represent \i^^
the kin^f, iti all humility, thst he would
pleased to lay asnlr tins psrdon.
Mr» Uiinimu^. i would addreasthe
with amhinitcsioti au^l i^eotlenrKv \ hut Ix'foit
they should touch one pemiy of our money,
w<Mild hur*^ satislactioa ohnut thia paraof
Hut when they ^oke with strained aloriep {
nc'cessity for motiey, ne^ct lo pcrjtiry, tlia ^1^
%t as upom oiir pni-se*, and ilun we were sent
home, and did noiliiiT^^ lor \h^ naiitju ; and tor
|be«e ri^htceii yeura wt! have done iio||iii»g»
But I hupe ihi-se <reittlnnen will lie wistr* n"
yi)u vuli address the ktnif, 1 am not againsl it»
\c. and %c\n\ to commaud the inlenar oHieera,
^i\ ior the tv^X.
hti Jifhu Entlry. What calls mt up it iiol
foruHHii'y ; I had no thmi^ht^of it ; but Um
||m» ^mbeJUElcifient of tht; treasury for lbea«
atvea yeant, as in ath i^ril. I hav€ a |iajier m
my haad, of what haet bti ^n dviH; in the Ex*
rhef|iH*r, Of Q(m,mM)L I neri* Ins ^(*nv 700.00©^
to the Na*y, and the Hunkers ; ainee these pix
year!», not particnibr to tliv kuijif'iv purse on«
penny. Itut ihaadditHmal duty went ooly to
the km^'s parae.
Mr, Vou^huH U'hana ntotioo Iht moaey ta
itnaeaniMiable, it will be dvnied wbco it ia
sra^cmsMe. When hi wi are broken, it is not
by the pricioe, but by hw mnuster*. Addfesaui
liHve been dtnicd ; Fmi hu u hni Ernly iiio?#d)
as VI a ha% c liecm xw.'. i u ou' ftniinMUfi,
Ml has the kintJT bocti i^ siiclimiBiitart^
thst have adviaed him to deny our tddreaaes.
\lben hu«s wire MhuNied, we aiJdraasad ; atnl
wUeu u c gat a tlie kmg gooi wiiif>ii% lit y tiskl*
747"
1 JAMES n. Proceedings agniwA Thonuu Kari ofDanly^ [748
*< pardons to aoy petvoos llni lie nndff tDn-
»* ptf&chmeat of the Cobuboim of fii^taBi"
Tu€%day^ JiorcA 25.
A message from th« Lonb; by baron Thir-
land and baron Littletoo. *« That thev \vMi^
*^ had taken into oonndentioa the maUcriv-
*< latine to the cari of JOanfay, nod had aidad
« the Usher of the Black It«Ml, bHbre the? W
" received the last meaaaee from ibis Umv,
" to uke him into costodyv and biin^ him to
<« the bar of the House of Lords to-nwmv
'* morning', and that the Usher had Rlani4
*< their lordships answer, that he oould not Is
»* Jeuiid."
Ordered, *• That a bill be brought in to isb-
mon Thomas earl of Dauby to render hinvtf
to justice, by a day to lie therein limited, or, it
delauJt thereof, to attaint him."*
ed to u^. auil Tou bare as (jrfx»d repawns now as
ever. You had success then, and I hope you
wiJl tiareMOnow.
Sir Francis Winnin^t'm, When we appeal
tri the kin{^ in his royal power, then it is rca-
son&iile he should do' us right : but an address
is a kind of a compliment and wish, and the
king may deny us. All tliat is desired now is,
to represent to the ]l\u\^ the undue manner of
lord Dauby *s obtaining this pardon. The
parchment was brought to the king. I would
know who br^mght it, ready cut and dried !
When great mm are too hard for honest men ;
All have complained of the exorbitancy of
(his man ; and we are like to do little service
in parliament, when all the answer to an im-
peach uient from the Commons is a pardon,
Bly motion is, " That you would make an ad-
dress to the king to stop any farther pardon,
and on Thursday take into consideration how
to prevent such unexampled mischiefs for the
future/' Else I shall neither esteem my life,
nor my estate, to be my own.
Lord Cavendish. I would have a Committee
appoiiiteil to draw up an address to the king,
as was done in the case of the declaration,
** That such pardons may not pass, but by act
of parliament."
8ir Thomai Lee, There is a difference be-
twixt desiring the king, " that it may be done
for the future," and sayine, " that it is against
law and it ought not to be done." As su* Thomas
Clifford said, *'*• Give the king money by land-
tax this once, and you shall for the future pe-
tition the king that you might give money by
land-tax again.*' ^1 y^" enter a caveat against
this pardon in the offices, &c. it is below the
dignity of the House. If you address the
king, ^c. I would express that the pardon is
against law.
Colonel Titui. You were told the other day
(by Howard) of the dismal state of the Kx-
chequcr by anticipations, and now hy Ernly of
the good estate of it, and what vast debts have
been paid by this tioatiui'er, and a course taken
for the paymrnt of the bankers ; but in six
terms it will appear, there has bit'ii 1231,000/.
paid by the treasurer for secret SL-rvicc. Both
these accounts cannot be true, liy another
you are told, ** that the revenue is so anticipat-
ed, it is impossible to be redeemed." I an) of
opinion that you address the kin^*, but am far
from thinking it fit for the House to enter a
raveat, and as far from commanding the in-
ferior officers not to enter the pardon, &c. But
you may address for the inferior officers to
he punisli(>d lor entering it. Put a brand upon
this surreptitious way of obtaining pardons, and
provide against such things for the future.
Hack your address with reasons, and appoint
a Committee and prepare your reasons to ob-
viate such an inconveniuure for the futun'.
^* looked, That an humble Address be
** made to his majesty, representing to his nia-
**jesty the irregularity and illegality of the
•< pardon btely granted to the carl of Danby ;
** and the dangerous consequence of granting
* *< The House immediately fell on hrf
Danby. Those who intended to aerve Ua
said, the heat this diapntc had raiaed, vlikk
was imputed wholly to him, had put it ortrf
their power to do it. Bat he oommillBd oikr
errors. He took oat a pardon under the Ginl
Seal. The earl of Nottingham durst not fu-
ture to pass it. So the king- ordered themla
be put to the pardon in his own presence. M
thus, according to lord Nottingham's fieM
when he was sdlerwarda questioned aboac ii, i
did not pass through the ordinary mediodsd
production, but was an immediate eileetofhi
majesty 's power of creatine-. He also laok Mi
a warrant to be marquis of Clirmartheo. iid
the king, in a speech to the pariiaroeot, «i<
he had done nothing but bv liis order ; aii
therefore he had panloned hun ; and, if ibcR
was any defect in his panlon, be would posit
over and over again, till it should be qain
legal.
*''' Upon this a great debate was raised. Soac
questioned whether the king's pardon, o^w-
cially when passed in bar to an impeacbmcot,
was gomi in law : This would encourage ill ni*
nistcrs, who would be ahvays sure of a panki^
and so would act more boldly, if they ^aw »
easy. a way to ho secui-ed against the danger
of impeaciiincuts : The king's pardon did is-
dtf'd secure one against all prosecution at liii
suit : But, as in the case of murder an apfcd
lay, from which the king^s pardon did afll
cover the person, since the king could no mors
pardon the injuries done his people, than ho
could forgive the debts that were owing to then;
so from a parity of reason it was inlerred, thil
since the offences of ministers of state w«v
injuries done the public, the king's pardon coaU
noi hinder a prosecution in parliament, whiA
.scemeil to he one <if the chi«f securities, and
iiio.>t essential parts of our constitution. Yet
on the other hand it was said, that the power
of pardoning was a main article of the King's
pr(rro;;ative : None ha<l ever yet been annulled:
The law had made this one of the trusts of tlw
government, without any limitation npoo it:
All arguments against it luigbt be good j
tit u:*MitJs
ill truiit^
vUion tl<
thvtvfore
J<^r High Trtason*
Thurtday^ March t7»
" ^M' AttAUitlcr ogftiiifll the earl of
id s second time*
i'*M. Mike tbiJi Bill very well. Danby
thi« ftunishment, aiifl more too, i
\oijp eiJil, *' '" i-
, hfs having' xtrin-k tallies to
>.:w days, vvbicb tJiay l»e pnt
Jed.'* If you make ivo jtro-
ooncernttl in these iruut* be
, alt \<>u do will be to Uttlc purposv ;
1 more ** that such niay sutler as fe-
fyt tb« bmitiiJi^ it fur the futufe: iJui what was
aJr^r f ■ - * tvus ^ood in law, and cau)*l not l>e
Iipm I. The temper proposed wn«,
tbin, ,., I-'' i»'"'-.'- '..... --..,. --r^lietvay,
an act of bait I a him>
like that wbi traj) of
Clarcmloii, ^ voted
ibAt be ikiouj I v. 80
ft bill ot bfknisbiiu-iii pansicd lU the iimise of
Lortis, and wajt sent down to the Commonfl.
WintHugtoti tell oti it tbere it) a most rurioiis
iUttt»nCt\ He 6h\i}j it was an act to k't ull rui-
ra see what wa^ (be ivoi-^t thin^' that
Id happen to them, after thej bad been en-
blact ' 1. ris, and bad ifot
of V liorjour : AH lliey
nf, I ' ► bve beyund
#ea. This ctiflaiiu r ! , ihnt tliose,
wh6 rnlcnded to ijavt ,..,;... v.. J that beat,
Ibund they coubl nut ^ton it. Littleton sent
ioi' nil' rli:ii ri[('bt, to try if it wa^ iH»t*si}il(> io
m'.f' i-m We Inid !«^
tfem od brought near . M>n
H^rvut vvery thin^ that could be demri^d of
_ ^ And why tfinst an allamder be bmught
Ofi, which would create a breach that could
not be beal^xl ? The earl of Dauby was resolved
to bcAf B b^iL: , but wonld come ui,
(niberthani iO ^od plead his par-
don; and iben ii;i' ■ "i- '.kis urn tl.'.^ n'Mirn-
inada tbi» parly i';i ^li- \-'^ .n.^^ .,■, ',h'i
K^Utf bt ruin nil : \\ v knew imv^ iaui .1 iiHiu^ut
^^Vti^id berin and hn<l tcit the ill ef1ret« of bis
PMW^ r r.iil iIm r,. I,Ii.- \VU>» to bf » -. ! rr, M rr.
^mII Bui Wr
tbiM, ^_ ' Mitaafue*s ii' ^- - -■ ,
sad wufi HO bkiwn up wub populanty, and no
much provuked by beini; tiutxd out of the
l^laet? of Ndiettor ('icnietal, tb.it hi* ooutd not be
|»r''vnt!»*d f»n. It wa< otlered uflerufird'^ from
ti)* Lilllelan tfdd nie, lH)th tbnt lord
IJ il by art of pm bnuM nl bi* d#'y;rad-
'I'd, and
* futcrL*
IK' in uar i<j ail iru-
of the litnv Mas
^1 .4.. I A,.J
tbitmn out by t(
fita bdlof au&)i
loos, that do not tn a certain titna ra? eal such
truit»/'
The Bin was ardered to be committed.
Then an iiigt'ossed Bill from ibe Lords, wat
read, for banishinj^ the cmi of Danby, ?iz.
** By perpetuiil banishment and eiile, not to sll
in the Lords House, nor enjoy any oflioe^ 3kc.
If he comes into En^bind after the nmt day of *
31 ay, 1679, treason, or be found iu any part of
England, treason^ and no pardon but by Act of j
Purlmment. All coiTcspondence with bis wifia
and children forbidden, nnle.^s afwut his enlale.
If tbey hold any other correspondence with
biED} they shall be piiQUhcd as lor correspond*
ing^ wilh traitors. Letters sent to In'm^ or re<
ceifed from him, shall, within ten days, Sec. b»
showed to one of the Secretaries of State. All
trusts for bim of patents, gifts, or j(raots sine©
December. And if he renders himself before
the first of !^Iay next, the penalties af this Aci
to be Fuid/ '
Sir ItarhoitU Grmftone. To the ititant t
may speak orderly, I shall move to throw out
the Flill. We have impeached Danby, and sent '
up our charge, and he was prayed a day to an-
swer, and you have now agreed to a Bill oi' At*
tainikr ; but this bill from the lords is not mm
attninder, but a compounding for treason.
Dauby, by his flight, has confessed hlmseVf ^
£:uil(y of I reason « and this bill is as much as to
«*y, ** Cut ort* his ears for treason.*' And ihia
is the way to countenance traitors, rather than
dtijcountenftnce them. A traitor is a traitor,
Wliiit mercy he may find upon trinK I know *
noi, but I move you to throw out the bill.
Lord Annestrt/. Thi?* bill is contrived by some
p€.r««<in to hare Danby tall easily, that be may
come into his employment, and do die same I
things be has done. I would lay aside this^ |
and go on with your own bill.
Kir Ja/m Kmght, This bill is unjust to lonl
Danby, for b^ may be innocent ujion trial |
and unjust to the Cotnmons of England. H%
! " * ' * from justice, and yougite bint.
ot.jc.un r.ftix. This is such a precedent t<>
compound lor treirson, as J never yet saw. Bui
1... .,5*^(4 tlie l^rds have made some steps, f
J i»ot tbn»w the bill out, Uii i:o on wilh
utiliill; and, to maintain u goml coiv
I li With the Lords, 1 would gite tbb
i^ r rc'adui^ this day lorinic'hi,
isir JftoTtHtg Plaiftr, 1 atu for tnt'owing otit "
this bill, and prc^scutly. You hate had pre<!e* ,
dents of lord Clarendon, ^c« The delay of ]
that bill did almost in UrvuntM products ^thtt
eOect desired, which was, c u for
treason— delay it for a month* ' »nie* 1
thm^^'r ^ ' - ,t
pets*'
1 1 bfi
.,..u, :.. i:. .... "idiOjjf j
uvsy from a coi i%
Umcnt. If we «i . ntisrl
hkLly t(» be tipOQ us, by bit raaapf, hrt iiiin an*
1 JAMES IL Proceedings against ThmoM EarlefDanby, [79S
deterred by that act, that can plead such a pre-
cedeDt to escape unpaDiahea, and canewir
dure f he pmirisbinent the bw has provided for
him.
Seijeant Maynard. It is all one to your
pur|)ose, to |)ut the bill on presently, or to de-
lay it ; it will be all the same fate. The pre-
mises in the bill are very far granted to your
advantage. No man, 1 believe, will caU for
this bill m haste; and you may lay it by.
Sir Thotnas Lee. If the Lords shall think
fit to i*eject your bill, because it is too mnch,
had not you better hare somethins^ than no-
thing? Possibly some of the Lords may be
more afraid to see Danby in the Lords Hx)use
again, than we, or at least, than I am. In
matters of proof, things are not yet before us,
but in the trial they will be ; and this bill of
banishment is too httle a punishment for his
crimes. The same arguments may be used
upon the same bill, knd I fear there Vill be the
aame consequence, that neither of the bills will
take effect.
Sir Francis Winnin^ton (who had been
lately removed from being Solicitor- General)
made the following speech: Mr. 8(»eaker;
The king cannot pardon treason against the
govermnent, for then the government can-
not be tree from evil counsellors. ConM a
king have done it, would not Belknap, Tresi-
lian,* and the two Spencers,f have bten par-
doned ? A king onght to be the sanctuary of
his people from the oppression of evil ministers,
but not the rehige of the enemies of the go-
vernment, and the protector of such arch-
traitors as Danby. If Danb}' be pardoned,
then tlie Popish Lords in tlie Tower may be,
and tlie Jesmts in Newgate likewise;
Is this the way to secure the laws, and the
Protestant religion? The king hath a limited
power, or else it is not legal ; his limitation
then is for the goo<l and benefit of the ])eople.
But is shrouding an open and notorious traitor,
'the minister of the present mischief, and the
4Mmiinon centre, in which all the lines of con-
fusion do meet ; is that, I say, for the good of
the people? Prerogative is to abate rigorous
justice, net to evade and destroy it. If minis-
ters may be pardoned at the prince's pleasure
ibr all the wrongs tliey do the people (though
tlie prince be sworn to protect the people from
those wrongs, and is therefore trusted and paid)
there is no security, and our pretended freeilom
and legal governiueut is a mere cheat, and we
are all arrant slaves. And I say, he that speaks
one word tor Danby, speaks two for himseli'.
Besides, this is treason impeached in |mrlia-
ment, therefore not pardonable but in |»arlia-
ment ; this is a national and cathoUc treason ;
the life, the root of govci'nnient is invaded : a
pardon here is so uusuflei-able a thing, that it
ought to be placed to his account tliat dares
pleiMi it, and ranked amongst the rest of his
evil roonsels. The bill sent from the House
of Lords is not his punishment, but his jmrdon,
a salvation by act of parliament. Who will be
• Hee Tol. 1, p. 89, of this C^rilectioii.
f «sf nd. 1, p; S9.
\
away honour and wealtk,tlie reirerd of ticans,
and the poor people's spoils ; and that at sach
a time as this, circumstantiated with dIoIssbI
conspiracies, and he tardy tcH»? If tnis anMl
be, it is good, yea, neritorioua, to invade fn
perty, to betray the kingdofti, aell the peofile,
encoarsge Popery, suborn witneesea, aad sliu-
gle and murder the discoverers of tlie Pkt
Remember how you used to proceed ; arabe
him an example for the reat ; if he must Kw,
let him survive his glory ; at least degrade kia
and sequester him ; that ia, reduce him to ■
small a thing as sir Thonaaa Osbom, and a
lean and indigent ; leave him nothiDfr be ha
got by his monstrona actiona against the kinp-
om. I am bold to say. That those Lords mi
Commons that agree not in this, wouki do tk
same thing, to end in tiie aamA security.
It is a licence to cheat the king Yor In
years ; if this must be, nray let tnere ke i
clause in this bill to pardon all villainies ad
treason against the government whatsocfif^
and for poor as well aa rich. I^et not thegnU
rogues only escape and go unpunished. Wa
Green, Berry, and Hill, banged lor kiniafrar
Edmundbury Godfrey? and must heescifF,
that so vehemently diseouiaged and bitteriym*
naced him ? What reason was there that Omm
and Ireland should die for lieins^ in ^ Pbi,
wiiile he is rowardetl that concealtfd and wsdl
have stifled it, and aflerwards have fathered il
upon others ?
To conclude. If after all this discovery wsM
and proceeded in b;^ us, this point shall be di-
livertHl up, they will not however escape ai*
punished, but God will bring deliverance no*
iher way.
Sir Thomas Lee. I would be satisfied, ske-
ther it be u rejection of the bill, without ei-
pressing, tliat it was rejected by vote.
The questiou for a second reading of the M
was carried in the negative, and, upon a a*
coud question, it was rejected.
April 1.
The Commons passed a Bill for the Attaio&r
of Thomas earl of Danby of High Treaaa,
unless he should surrender biiuaeif witbint
time (jxt, which waciscnt up to the LDnhkjf
sir Robert Peyton.
April 4.
There was a Conference between tbctso
Ilousrs relating to the Bill of Attainder, whcie
the Lord Privy -Seal managed the ConforeaCi
for their lordshi^is, and delivered himself tn ihii
effect :
** That the Lords Hou^ have chosen thi
way of delivery of this Bill at a Conferenoii
rather than by Message, the better to presefit
a good understanding between the two HoaMi;
wliich they shall always endeavour.
" And, to prevent aelmtes and cnotrsfciif
as much as may be, their lordshi|is do ehaarvs,
that the greatest affairs of parliament ara rt «
standi in the time of the greatest
rasj
for High TrtOidn^
•nd (laogtira, both at Jiame ftiiH abroftd^ liint
ih'm kingdom butli ever hceu knoMru te Ue
** They olMerpo alao, and none di ua but
muMt with qonifoi t irmenib^r, Umt Uis luajesty
tmtli ever l^I (lirusftr In a way of ctpiitency
aod nwrcy to uii hts siiI;J4h;U ; so tUal hh reig-ii
liaih beeu to iliij time itierciful and (X»tfi;ia8>
(HOUftte ; Burl their t4irdt>hi|i« vere uawiiUn;^
the tirst iuterrupliirn Ihetx^uf should be hy ibe
two House's prc'^smi^- his majc*«iy to the utiii<i«it
itoverity in tliiai case, that liath iiiterrtijitcd
gv«Altir ufliiirsi so lontf » uod there tore have
|>aiiaetl your liiki vritb itonie AnieniluieiUs, vUiich
tbey hu|)«t ami dif&ire tltc Ilou^e of Coiiunous
Coocujrence in."
Monday f April T.
, The CommcMia tocik mto coo^demtioii the
X«rdii Ameiidnienta. U|)tMi which oocusion
M^R del»R(e tix>k j»)nce«
Mr, Gurro^'ity, ily lU*- LonU AiDendmenta,
it it hut a semhlaocti tif hauishmeui of the earl
1>f DaDby, and he nimll not have it— It ii> an act
^f indt'moiiy, and yim are about to oieud
it. f would not luuke tbi» bill otherwise than
it is entitled ; and not ettm{^ound forU-eBaoD.
8ir Thomat Vtorga, if pOMkiLlc, by any
ineaus I woidd preserve a ifood c<»rres|>ondence
with the Ijorris. As for ** the dny of rendering"
|}iiii>eiff ^c." you may moke it Ioniser ; hut
if he bo !»lnji]ieil<*f bi& honours and estate, aod
redi'ceil to bis first eoudition of sir Thomas
Osborne, yun may have youremU.
8ir Thuma$ Lee. Vou nave said in the Bill,
f* If he doe* Dot appear, &c. by the lOth of
Aprii ;'' and tJie lord^ auy, '' the 15tb ;" the
coDseijiience only is, that it i;ire» him five
days more to apfjcar. But if it couUl be re-
gular, 1 would Oder it to be *^ May-day ;^* aud
if tliere tihuuM haii[»en to be five or si.x days
debtite, it ivould look bk« a retrospect bill,
j offer it only.
t On the Lords Amendraeut, ** if hebefoutvl
in EnelaiKl after the 1st ot May, 1679, he shall
ctftinl nltaurited, &c/'
Ml . Sw hcvtrtiL This Amendment makes it
ft Bill of banishment. Then wbetber it it
more eligible to prevent lianhy'f 5rtaDdiji(f
hi* char^, or to go away out q\' England with
all he has i^oi, and conie no more ? It <3au
never be but the bi^gfer the penahy ia, the more
likely it will be to bi ing lam in. ' If we 4ire of
<»pi<>K)D he will stand his ciiavge^ Of come in,
we auffS not lo agree witti U)e lords.
8ir Tkoma% Clarges. He forfeits his honours,
&<?. ain* e the 2 2d of December last. You
8tnp bim of all bis ei^ate and honours, aod
there nil! be little left to comfort him. I would
agree with the Amendment
Mr, Vau^hnn, The Amendment runs thus :
•* Oaiiliy shall appear i'^^ *' " ' 'h of April;"
but he is at hia utierly ^ will apffo^r
4jrnot; ao he may he a: :...^ S till ihr^ rlrst
diy ftfMay, and liare time to do all he has a
miu4 lov&cu and csury away »11 bo has got
fvitb him. Aiid where ara you meailad in
VOL, XL ,
A. D. 167S^1685. [75«|
this, by rejectioii of the Lordt bill of banish*
mentf*
Lord CaventUiih* If I could be of oahnon o0i
the atueodment^ of banisbment, <^o. I wouh'
agree, cVc. But tbia leavea the ancient me^|
thodft of parliament, giving up the justice c
England, a a if you could not make good Ih
charge And ao he may go away with th*]
honours he has acquired, by the very crrmen lu
is charged nith. It is not for your honourpJ
and I would mit agree.
Mr. VowU. 1 am one of those who
tlie BtlJ may pass, but not as it ia amended*
The case cMJUcenied in the Bdl is, w br tbcr sucli ^
eriines ik% Danhy stands charged with /liball got ^
awhy vkith impnnitv ? But here, in this dau»ef J
aomething is mistaken. It seems ti> me to b# 1
Fery monstrous, that you give him lime to the.f
1 6tb of April for his appearance: Then conW
the lords amendments, if become back, hvj
shall stand attainted *^ from the Ist of iMav,
Then, ill that iutrrval of ivmej he ifc un«!nr i\& *
matifier of restraint (for I am of opinion he Wem
hjrking about town^) and what then will hinder \
bim in that space of time from eoming int<i»
the king's presence, the Uau^e of Lordtt, or j
tlie couticil- board ? what be doc* now [iriv.uelyy
be may, in that interval of time, do openly* ^
and shm himself away with tlie ^m\\^ ho has-
got— The penalties uj>on hitit are iu ihe »ent? j
eiisuing clause. I shall nevt^r a^ee that he' j
»h*ill go aw ay with lite and fortune. But if i
you have somtthiug equifalent, you haveyoui^
end. This is my opioion, but 1 submit it \9
the House.
Mr. Garfwaif. This clause i« turuing of rba' "
whole bill. The time given him is a pretty
time to do what he has tf» do, 9o is a licetie# |
fur him to &tay here all that time. But aajf4
the lords, '• We may reach bis estate.** Bot^
the king may give it bim again — ^There is tiof
injustice iu the case, in our bill. If be willy'^
he may come in lo that %rm<», and be tried.
f$^f Thomas Piayer reciting the prooeedingiir
against lord C!arendoti,said, The letting bitn* ]
go unpunished was the occasion of all the mis-
tbrtunes of the nation that followed. To which
answered
Mr. Hytie. I catmoi let those words pas0> '
without au aninrcr. The case was f|uit9
otherwise than Player re[>resents it- ** 8pe<^iiU
and particular matter,*' in the imt>eochment
against lord Clarentlort, was insi^ed upon by
tfie lords. And I then ofiWcd, ^ That if the
grntleaien that brought in the artjdts would
make good any oue article, lie wDuld confess .
them dl/'^ But he went away to leuve his
coiinlry in p»ace, and that he should gire wo-
octxsidn of difference bet%veeti the two Houses^
and had sufficient punishment by the act of
banishment.
Colonel Birch, As to what fell from Piny or;
1 vn» otie-of thri<:e that gave no eminent tu thai
kird's itupeachmttit, wiiboul insertiag'* special
matter** m the articles. But m^ to this cas« 1
* SteV<»l. e, p..a«8ofthisColi«cakiCi.
753]
1 JAMES II. Proceedings agauut Tluma$ Bad ofDanhg^ [TSff
win not 8|)eak for Danby in this Amendment of
the Lords ; hut vou may poMibly hold so hard
upon yonr bill, that he may have opportunity to '
escape. Such is our fortune, bv the jroodness
of a prince, that rather than iinvc nitnisters
d)a&ti$:ed, he would be chastised himself.
Cireat familiarity has been with them by princt^s,
and they liave been led by tliem. But it is
our duty to throw our §rarment over them, ra-
ther than discover their nakeduess. It may be
the treasurer will lay what you charge him
with at the door of his prince— and many know j Sir Thomas Meres. The lords, at (^viiqpbKfc
where he lay triuketing with the French — ' this Bill at a conference, with* the ameiidiiMB%
This will be ill done->but is this the most ho- ^ve us no reasons for them, but caid. '* J\m
nourable way of dealing ? Deprive Danby of . observed, that the great affairs of this nttM
his honour aiid estate ; and if more be to come are at a*staud, at a time of the greatest dangir
alter him (as Bennet said) it may fright them, and difficulty that liiis kingdom ever labom
Miyor Beake. I wish ihat all crimes may under ; that the king hatb always in his rki
have proportionable punishment. What is inclined to mercy and clemency to his sii»-
offeretl to you is, whtther Danby shall have . jecis ; therefore, ti> a kiuji^ so merciful and
that you can, and you ought to take cm aollt
he the first persons that csomply, &e. I lop-
puse the lords have good reason fbr what thiy
have done ; but yet it appears not U> us, mm
induced them to these ameDdnmila. Your S(-
tainder reaches to Daoby'a honoms and euktt
^c. We shall, it maybe, agree to "all theloiii
have offered, &c. ; bat my motion is, IctosdiiF
agree with the lords at present'; and soifss
go to conference, the lords ai^ give as its-
snidi a punishment, Vc? If banishment l>e a
better punishnit^nt than the forfeiture of his
estate and the corruption of his blood — I a]>pre-
heiHl that banishment was no mean punish-
ment amon«v' the Romans and Grecians. For
divers ages after the comjuest, confiscation of
estate and lianishment were the usual punish-
ments. Matrna Charta says, <* ^lemo perdat
patriam,^c." If you attend those ends you
desire by banishment, <Scc. a greater punish-
ment wifl follow him, and that which he will
never recover ; the curse of Englishmen will
go aftfflr him — He carries with him a wounded
eonscience: and that is part of the spoils he will
take with him. His primes are transccndant !
Tliey will dog him wherever he goes ; th<;
meanest fierson that he has oppressed may
assault and attack him on the other side
of the water. If we can bnt reach this, to
lay hi 111 as low as the dust, can you promise
to yuui*selves that the Ijords will con- ^ Danby, being impeached-by the Coraiuoss d
passionate, the first intermption of bis cto*
mency, they did desire, should not proccri
from the two Houses pressing the king ton
act of the greatest severity. Therefm hire
l>assed the Bill with some amendments."
Reasons were ordered to be drawn op, fir
not agreeing to the Lords Amendments.
Tuesday f April Sth,
Mr. Powle reports the fbllowing RcHH
why the Commons disagreed to the fjrii
Amendments, &c. vis.
« llie addition to the title doth shew, tki
the Amendments, made by your lordshiptt
the Bill, do wholly alter the nature of ^ ; al
from a Bill of attainder, have oonverteil it iMt
a Billuf banishment, which the Commons csH
not consent to for these reasor*s : *
*'^ l.That banishment is not the legal jo^-
ment in cases of high- treason : and the tsritf
cur with what you aim at, or the king ? I
would take that coafie by which wc may pn)-
bahly arrive at our end — And his honours and
estate may be taken from him, botbre he had
the treasury.
Nir llciiry Capel. I am glad to see so gi'cat
an assembly, in a matter of so great moment, in
so great a calmness. I shall ever take care to
behave myself with moderation and temper,
and will do it in this point, and keep the tro-
venuncnt steady. As to whnt is said in refe-
rence to agreement to the Icnils amendments ;
in some measure, 1 agree. The steps of this
Bill to the liords have been very regular, very
just, and wc ought to stand by it. But the
lords, under favour, have not done the same. I
know not by what measures the lonis have
gone to amend this BiU. What reasons the
lords had, not to commit loni Danby, 6cc. are
high -treason, and t>e<l from justice, hatb tbae>
I by contcssed tlie charge, and tlierefore oojEh
to have the judgment of high-treas(« forhii
' punishment.
I '* 2. That banishment being not the pnaiib*
! ment the law inflicts upon those crimes, At
I earl of Danby might make use of this rcnii-
sion of his sentence, as an argument, that etilsr
the Commons were distrustful of their prM^
against him, or else that the crimes are noCii
themselves of so high a nature as treason.
'* .*). That the example of this would bea
encouragement to all jiersons that shouU be
hereafter impeached by ilie Commons to «ilk-
draw theinseUes from justice (which tbcf
would alw;iys he read}' to do, if not prevesiei
by a commitment upon their impeachnf at ;)
and thereby hopii to obtain a more ftvoursUt
sententre in a legislative way, than yoarksd-
yet unknown to me. Now this is come before I ships would be obliged to pass upon thsflnio
you in thi-j parliament (though the lonis ' " * •
thought it irregular in the last.) The Black
Kod is sent for Daid>y, and he is not to lie
ibund ; and no more. Sou proceed witli your
Bill, and you ought to stand to your articles, if
and put the least UsaisU upon them
your judicial capacity.
*^ The Amendments being all in order In thsN
■ * A stroke is made across these EleaaoM, in
tlie MS. Journal, as if it wa»iiileBM fiftf
should be strucl^oaU . *
for High Trea
inanitions, the CommintA do nol agree to ibem
^r the ibnii«r Itessoas.'' *
At the 5»inc time the Cominoni *• Kesolvcd
*riiat miUumlK ■ be made to liistrna-
fcMy» 10 drvin icsiy lo issue oul his
roval iinickmiMuoii *W the opprehturltng
rfitJinas e^ii'l i>f Danhv * «»»** the usual pt'uiil-
iks mmi such as si * i it hmt: oml that
Mines
liii Majesty
dider to
'AiatlLev
Alii I.
pliiAseil 10 ^»e
oi hiH rniijesty'sbonsliolil,
itiat the sail! earl of Xhinhy
lesitlf wliliiiieithfT of his
of Mhite-hAll, Sumeriet-
...j >. . .....* ... .U,iu«. And it is refeiTpil to
IMi. Towle, &CC. to prepare ami il raw up the
^MM* lUil t.i» s^nl it to ihe Huuso to-nioiTow
was done Accor<lioijly the
; vni€i\ lolhekiup:.
*l\w '*«mr day il»e Comnaous hud another
f^onf.nnrp wiOi the Lords UfKm the earl of
pji , where the lord llunhugtan ma-
iJemicf, witl ^bat he "delivered
10 tlus t Hi'ct ; • ^ J.
^»rT1ie Lords hA?e desired this Conferfitice
^fSh the Commons not »o much to argue and
dispute, as to uiUieal** and reconcile ;
*^ Th^y have atvr v»^ -.Ku.>rvx'd, that Ihe de- ^
bate oflfii^ Bill h.n - long ami so ereat |
jin ohilntction to pu ;:. ntss, and therefore
Uiev dt^ire yoti lo l»eheve, ttial thai is the rca
kctn uliirh huth chiefly prevail«i with their I
loi, . tuntter of ihisi nature ; and upon j
thi It ist that if a uay miiy be found to
ialisiy ami liecuro the public fears, by groviinj; [
less thai) the Bill you have proposal, the h»nb }
do oot lliiiik It 5ul\is.ihle to inaist up-^n the ut- |
most and mast riprans satisfaction, to prevent j
justice, whkh might he denied. |
*» To induce you to this cotuphance, the
Js do acknouT ' - *' •' '^^ntRhment i* so
from beinj^ tl . nt in ca«c of
\\r-h T- ■ r,n, th.kt .. ., i ::.. Iti^'^al judgment
i,i whulwivt-r^ since Jt can never be
iili.^J L.it hy the I ejTishaive authority : But
jy »ce no reason why the legislatire aulbo-
Iv s\umh\ Alwrays be 'found to act to the ut-
n, of itd power ; for there may be a
j^r nccessihy sometime* of niakinjf
ibAtemeiii*, and it might be of fatal conae-
Aaetia.' if it Rhouhl not be m,
♦* And lli<! I/>rd(*. lo remove all iealousies m
(be preretlenu of this kind^ do Jeclare, that
kords at the liuit
ot ; \ak'
i^in^ tor
1 not yt£t
i! ; these
!.-ht
_ lif*t
A- D- 1678^1685- [T58
fttteniiiniT io the PaioM^l Chamber llie Frot
Conterince, the Huume apiKiiuted the <iiim«
Lords who tiianaged the b*il €o«*ereiDOe im
repirl tbiii*
And the Lord Privy Seal reported to tbt
Lords the effect of the Free i Nrnteience : vie.
•» That Mr. Eiitnird rritt^'Aan openvd Ihe
Frve Coufercncc\ un^rin^^ "tid reinforcing i\w
Uea»on» which tlu*y had otfev^d at a lowier
Conference, and which the lord" »'
Conference had waved Uie ^^t
iii^ notice, thai, rea^oo and
Ihe Bin 1'
doubt II
i^ltieh bnagOccftsioned by lh»
from iuBitce, and m afirunt of tl)
court,' tliey hoped their lord«h*|W), wiio *r«p
judge* tor the kinsfdom, and uot only ior
tlieuiselve^, ndt follow the cxumulc oi their
ancestora, and pmvetl by lules <»f law, whicU
uje to guide iu pa*s*ing oi ac** of parlianjent^
as well an io lt*e ordtnary e«ui ne of judicuiure*
♦♦Sir Frnnci3 Wi^ ' next, ami
urged precetleotii tor i ' . oUI and
new; as. ll; i ^ ' »'»^*^
!^vage,flvi ';' ^'«
1 came not in m .i «<«> . '^-s ** ^ Uum*
I ttihle atlHuited unle^ he cume in by a day,
I And we cannot doubt but your lortUliius wilj
guide yourselves by forum j tlic
'ground' and reasoti bcnig the liut 1
I {,hall add reasons, to persuade yoor lurdhhips ;
I which h the proper work of Free Coulerem^esi
I ** I. We think, whensucl* bills are regular
I and legal, ^ i.^ confessed, for the Lord* t» ^
' change the punishment, would bring a great
I prejudice ou the CouioiouSv when he appear% ]
I for biui to say, ** The Commoos agreeing t© i
I » connwsition, admit their proois are oot fuHJ
for treason," ^ , ^ A
I *♦ 2. ThouRh wethirtt not utter blood, an4J
I, ' r t r HHcnted to a bdl that *^.»vi^ rMit|
mutead of piuiishm^ *'
h, M*v -,M -t- would do; yet • , «j
cannot vv^^ iiat reauon. ,^ ^ ^^
3. li i„ , . arl punishes himself. Uiiri
I)
f..
t!
chide ah
wVthtl
tlKl^ «
en doDC in the earl
. ver drawn into exnn
• "lU so enter \\ »i
I Hill their !i rl i
> ligoin amiore tlt4-in«
u founded only upon
aod cou!iideT»tioii of the pub-
Uidnfidtni^ April (>.
Thi* day there waa another Conference ou
tbe ^ubjyct UQ»lt«r oi' the U»i. IV Comm&ua
bill is not severe nor rigorous* ; but accord !i*f1
I to ruIcK of justice, against a person impeached, J
that flies, uud dares uot abide atrial.
*' 4. Flight is so odious in the eye of
law, that the innocent suffer for flying as we
I fi$ the guilty : Loss of goodti and chaiietji m^
iitittly incttrt against him tbat ftics frolT
'^ 5. This would' shew, as if different de»
S (Trees of wefsons should have different degreef
^.' . ,. ..,t., tl ...ti.f ttitrri^lmirm i^
ton for a ilying cotu-
, , : , not a thuht of inno-
cent M<w*^5 frrun ihc Et;yptian« ; but of a
wicked «';,,!. niit of n icn«e of bii> guilt, and
llie t '
wasMr.Po»fe: Tb9
last Cottl^euv*; \>a» f^* an eipdiie»H^y «****^
759]
1 JAMES II.' Proceedings against Tkmas Earl afDanb^t [W
Ifatinj^ minislktneDt, to put a quick end to this
wSnir, There are but two reasons why |iaoish-
ment sliould be mitigated :
*' 1. When a man seems nenitent, and wil-
ling to mend, and ffive satisfaction : Whereas
this man affrodts tlie jnstice of king and par-
Kameiit, and larks hereabouts) d«>in^ ill offices^
and hindering the gn»t affairs of' the kingdom.
'**■%, IV ben they merit favour in their office ;
but we cannot find <ine good action be ever did
whilst in power and place.
" Mr. raughan replied : If your lordships
mdmit attainders, some of the lords admitting
flight to be a proof, the earl of Danby*s iligbt
hath maile the proi>f in this Case.
<< Mr. Sachev&reil: It is hut a Dill of Sum-
mons, to keep liim from perfecthig his trea-
sons abroad, and continuing his enmity to his
country. Bnt, as your lordships have made it,
it is an act of indemnity and safety to him ;
gifing him leave to go to repair the littte loss
he is under here, by the iiivour of those beyond
tea, which he hath served against his country.
" Sir Thomas Leigh : What vonr lordships
offered at the last Conference, of not drawing
into precedent the proceedings in the case of
tlie earl of Danby, was mistaken by us. We
thought it meant oulj this parliament ; not the
errors of the last, m not causing the earl of
Danby to withdraw after the articles of im-
peachrneut of treason read, and the not im-
prisoning him ; which we are glad your lord-
ships do us justice in, and find the error in the
{nroceedings of the last parliament.
" Mr. Vuughan again said. That justice
should have his course, is the prime considera-
tion: This earl, he stops all himself; there-
ibre he shouki not have benefit thereby ; but
ought to find that justice will be too hard for
his evasi«)n».
<* S<i thrv delivered us the Bill again, with
our nmeturinents ; with expression of ho|)es
and desire ot our concurrence in the Bill as
tliijy havo agreed it, that justice may have its
coiirsr, and the great affairs of parliament be
no longer obstructed, by spending more time
on his person, who hatfi brought the kingdom
into so sad a condition."
The lord viscount Newport reported, " That
Jie and the rest of the liords have waited on his
BQiajestv, and presented him with the Thanks of
this llause, for cominunirating to them the
Addrebs of the House of Cuntmons to his ma-
jesty, concemiug a Proclamation for summon-
ing tlic earl of Uanbv ; and to let his majesty
know, that the humhfe advice of this House is,
That his majesty will be pleased to issue out
such a proclamation as is desiired ; and his ma-
jesty returns this Ansiver, That he will give
ord^r for a Jpvuclamatioo the next council day."
Debate in the Commons on the Report /rum the
Conference.
Mr. SachrocrdL The Lords have desired a
conference upon the matter of the bill of at-
tiijiderofthecariofDairi)y»&c. They agree
that your
their amendments, bnfc
IS wsvsil
methods of parliament, add destroy alt i
of proceeding, &c. 1 am in a doubc,wlietheryos
will not be caught in a free ponfemiceto sTgae
the subject-matter of the hkXU I would nlv
show the Lords, tliat their payer, now oflered,
is destructive, and contrary to melfaods of pi^
Hament, and draw up your reasons for it, &c
Sir Thomas Lef. I speak to point of onkr.
The Lords went yesterdav in an imguW ae-
thod in the oonferencs } for yon a^^reeil tooas-
fer with them apon tlie stilgect^Biatter of the
last conference, and when the liOrds osme n
debate, they did not fall upon the aoljec^
matter, &c. But you cannot have a Iree en-
ference from the Lords, vrhen they wiB mj
nothing of your reasons, and by not drmwiq||
into conference, they do io effect allow y«r
reasons. I speak only to forms. 1
myselffor the debate. «
Sir l^lUam Coventry. - 1 speak to i
of proceeding. If you go to a question, yni
roust read the Lords' ameiuinDents ; tosssMif
which you have agreed, to others not. Nov
the Lords send you down reasons why j«
should agree to their amendmenls. Evor
time you put the question for the conftrtsc^
they must be read ; for it may so happen, ikt
members were not here, when they were nd
before, and so cannot give thw jadgnwBHIi
the question.
Sir Joseph WUliamsam. 1 take it, yon cm-
not read them again. The Lords agree, iiAi
last paper, with such and such cirewnsUWL
As to the first point, they do not aerae, am
the cutting off all his honours and lands, &&
But they agree so as that yonr question ii soC
upon the first point, but the last.
Sir Thomas Jjee, Suppose, upon thisoosAr-
euce, some alterations are fit to be nn^, bfv
can that be done without readine them? Tht
matter betwixt you is the attainder.
Sir HarhottU Grimstone. This paper fisB
the Lords, is not an answer to your ressosih
but to accommodate and arbitrate tbethkf.
In effect, ii' you will take lOt. in the povol,
you may. They say, " Let us bsnisb biM,"
and you would attaint him. They would hiM
you depart from yoiur reasons, and aeoept rf
their expedients.
Sir Francis Winningion. I take it, as tk
matter stands, to be no more than this: . We
send a bill to the Lords, and they make amcad-
nieots to it, and you disagree to those ■nMHil7
ments, and send the Lords your reasons for it
Barely they insist uiion their amendment^si
far as to exclude all attainder. They tdl jon«
*' They do not come ts argue, but to natKili
and reconcile." They have not yieUco ts
any particulars of yoiur amendments. Thof
agree to far as to exclude all attaindevs ; ana
that is the same thing as to disagree ; and iky
insist upon all their amendments.
Mr. Vatighan, You have offered the Lsrii
your reasons, &o. and they answer Ihcmas^
bat ssy they will not argne ;
7611
/or High Tf
own unendmtftilf. When
A.D* 1678—1685.
[7CJ
)ft5i^i tifKm tbi
ttiMi i» dotie« iiere in an €«nil of all mtercoume
in ihat iiiatf^ff and thjii h a wav »t muK^ning
m thie Jitrr^u, We oiiijht to (iroct^d then no
litrtlier, but ailherc to our o^^n reasixis.
Hir John Trcvm-. TUe LonU have got ii
orti, n tine one, " insist/* U was never
ROitn in lYArliament, but hi tbc Inst parlia-
nient. Yoq tieitil ifieui np a bill of atlnimfpr,
«ih1 till V ^4-'utl Vou doivii liiiiendnientjj by
fir w, amf you deliver vour reiuion>i
ir. 11. Tlie Lords sfioutu, in tbis case,
il' ifrrencp, aml^»<? nn reasons,
b Y<ia jietit thf l.onkd bill
f»ii ui^u.iiiiiiij^ UP.' arm>% nnd tfi |^bcc liic luo-
ney in the chamber of IxmdoQ. Tlu'y amend «
e«l It, 4Qd wotitJ have il in ibe £.\che«|iier.
The C<»inmoii8 wmdd twit a«;free to it, and at
ibftt cunfortoce tbcv told you, ihey did insut
iijMio it I whereas tiiey Khiudd have had a free
COoferetioe, 6cc. If you do nut now demami a
iktm coolefetice, and |iiit their ameiidiiients to
ibe i}ii««iion, you arc out oi' the course ol p«r-
ItasiNml.
Mr. Seymmir. I rtae vpU* apeak lo method
of proceethnif. You are moved to desire &
eonfcrciice with llie Lfirdi, lo show the Lorda
llie errvm of their pfocetdaiun. They who do
it, wtiukl do wtll lu 9sd^n ntfmt errora. The
hwilB were at liliiity to aaj what tbe^r would,
aad you thottyylit m not lo aiiree with their
aJaMOliln«Qt9^ and you prrsetiti'd them your
.fttfiaM at the conf^ueiv why you could not
•gf«9t^^ The Lonf« Itafe itiVeti you rem-
iOva, why tliry inat«t iipfjn their afitvniitnenls,
llloii|(h not bifprjiUy, fi»r nut iicfrotjinj[{' itnetly*
Vou outrbt to \mt tb« aniendmeotelo thequrs-
tktOt paint by |M»int. You are to affree lo the
Afnandmenta' with tlt# cobcferice. The Lordti
cannot mend their own amend mentis but you
may your« ; *nd you may put fHai queclion
afUr that <)ii«ation of adhesion. That you
atick to your hill.
8^1 r Juteph WtUiammn. I did thiak thia last
paper di-hrrretl at the conlerence^ not to be the
aame aa iImm? rti-^it ; tbey come nearer to you^
than in their Hrftl. Vou aro readiij||p tbc
Aiacadinent of Hmnn^iu^' the attainder, if lie
<ftmo out into £n(r)aiid by liurh a ilay, inio
boninhtniHil ; it is a penalty, upon that condi-
tion only. Tbui* far ili n \U*' Lords come;
Ihey lay, »• they ^.btilt il>*'ir anHxid*
menlH no farther Ihtto i ^ ittainder ai>d
forfeiture of aJt lu» hoiiAiui^«i and ^pantJR, Ikv,
from •och a dny/' Arc 'I'hf'y nj^rrrt^ ibrn, if
you wiU bote tlicRi th< (lit<y vuH in-
•lit upon no brthiTnun \ are in a diit-
aiiion ti> di^inn* this »v.ni, if he appear not
J 0 day, ot Ilia honour* and plants, Sec, Irom
ioti a day. 1 h*v»* ii|Hak^n my mind, Tbi«
Umu^ tjte cave, 1 wuh thifi UinrjuMhr*' beyond
ibal^aodii iH jirettv vv*'" l-— -, 1 have no oh-
Itgllion to \nt%\ ; 1 w ^cvnd to the
jnikiie eonventimeKv '. . .uiirccuusv ihao
M*i^ for aifrteniiM .< the two lioueta^
Wh^fi fmA^omti ,, ^ to tlicm iudidalljy
nd iboj turn thainaaAita to tho lefiaUtite
ct^urae ; tlira ta the plac«for that contiileration.
ft iiisfiop can Imi rr»«i"M'»^ili vatl^iHfd by this..
L< of thf t Uanbv
! , \C. thi« In I _ -. hfvv advi!
bltf* i& it lor you to iiiaisit u^tou the attainder, uVeJ
with tbc const*c|iience9, whicii turns liitn an "
his family to the lowe!>t cooditiuu, withoal 1
medy hut by at t of parlidmiait ! You htfe 1
the reaUly nf the penalty if he elands out ; yoa
have all your rnd but that of the attainder.
Tb ' neo (a were disagreed to.
bn, {. Lnnl Danby at firatwasna
coinmuiea, awi those who tmmn - i'n oufe
Cfn*e mu9i lay that as the tirst : , th
all this ill constr-'""" i*? cotnt iniiii \i,e
committing: Uu\ < scatie weight up
that at ihc oiK-iUi.^ . ,... conlerence,
Sir khnrtf C*t}frL it omittioif Kecuriii}^ lord 1
Danb}', hi\ be uot ioforced at the cuiilcrence^i
it will open a door for all ^n*at ittcn to escape
iuKtice; the not committin;4f, (kc^ upon th
Commons' accusation. If the Comuioua caii<^
not re^ich men in their regular way of pro
in^, there is an end of all parli?uiienta, Th
ft^e Lords were commtttcd by the lord chi<
justice for the plot, and the parliamcfit in
ing. I move, theretbre, that die manai^rsi
the conference may have aonio auch instrutj
tiooa.
8ir Thmmt Le£* I think that the commri
tee is pretty well impowered already, and yoi^^
have reaaon for it ; for in your parenthesis in .^
the last reasons, you touched thai matter suf- |
ticiently \ so that tliere is a foundattOQ laid fai
this deoate already. The Lor da say, ** Tba
whatsoever has been done in l>Bnby's case, t^
remove a! I jealouiiiefl of the precedents of tbisj
kinil, shall not be drawn into example for th#l
time to come/ ^ Aud the Lr>rds said, ^^Thejrl
would not commit him," ikc. I know not tdM
which lo upply ; what is inoTed abould be inl]
sifted \\\HH\y whether one or all. In the caa
eflofii'" .■..•.\- 1 -,-■^'■1 : ''.tl, (Sec. there wa
only ui by the Lord*
iScc* briinn iiicy wuujii coiiiiiiii^ him ; and tlieii<^
they aak^d the opinion of the judges, as noir |
iu thiii cai>ie tliey have done« Now the que»^ ]
tion b, whether you will n<»t co^en your^lre* 1
in it, \c. if you insist upon tbis bill (arul no 1
man is the better for liimby's K^^ing ftway)«J
then you will biirea good prt'Ctdeot lor runn* t
in^ away ; but il you lay the weitfht upon tb« ,
matter nf^ Rrruring Dnoby, that is iti the jndi*i J
cini }• ^s; and ao you may put th#]
Loni Mimg aside from the matt<*r im
qiiestiuu, llK'ietore 1 would not tDaist iip<M|«l
tii»t, but touch It <iitly. •f
8ir H'l// ^f^^- The Lords may re«
tract, li y I on that pomt ol* their no^l
Kecurmtt U.<uay, An error they rommitte(|t|
tliF last i^Hiuiiienl i^ not a propir nnbjrct^
mtitler for •' ■ - ^-^rtnce* and ihey m*«y *^H^i
*^ Y oitr in; i^'lninKresseil their bounm^' J
fnr ilii- < nt ^^ ajJied yjKw the aniecifl*t ]
I' '■,\,
fbe I^^rds have madeyoQ
an otlisr which seema tery kind, hut is no way
T6S']
1 JAMES IL Proceedings against Thomas Earl ofDanby, [764
Leneficial to your end, &c. They my, '* What
they have <!(riie in this lord's case, '6cc. shall
not' he a precedent for the time to come." 1
hva afraid the Ixtrds foresee that your articles
have laid a foundation for the Commons to de-
fend themselves, and so that shall not be a pre*
cedent. Possibly subversion uf the govern-
ments is not by any positive law high-treason,
reserved to,jud|rment of parliament by 25 £dw.
3, Consider if yuu do not in a ^ijeat measure
deprive yourselves of that right, that the Lords
have made a resolution in, ** That Impeach-
ment, and Writs of Error, &c. shall remain
still, though the Parliament be prorogued or
dissolved, ^c." The Commons stitl have their
uglit, and if you agree to this p«>int, you may
part with that, a much greater point.
Mr. Hampden. I have stood still to hear the
prudential part of this matter only. The ques-
tion is, W nether you will meddle at all with
the Lords omission (d'not securing Danby, &c.
I would touch it the most ytm can do. In the
preservation of ynur rii^hts, you luay q^u farther
than touch it lightly; you must'siand to it,
and defend it ; it' you touch it lightly, } i»u will
rather lose than gain by it. Sup|>osc any of
the Lords (for they are touchy, and iiicc« and
well verseu in their methods) should reply
u|ion it, and bring it in debate, should your \
Managers yield it, or argue it ? I would rather
let it alone at this time.
There was another Conference on this sub-
ject-matter, April 12 ; upon which the Com-
mons again resolved to adhere to their Bill, and
to disagree to the Amendments made by the
l^rds : upon which the Bill of Attainder did at
last pass both Houses.
L'lion this the earl of Tlanby sorrendered
hinis4'if. iind sir Kdward Caiteret, litiher of the
Hlack I tod, on April 16, gave the Ifouse of
lionis an account that the estr\ of Danhy had
the List ni^lit rendrred himself to him, and was
in his custody. Their lordships ordered him
to be hroui^fht'to their bar, where kneeling, and
then standing up, the Lord Chancellor let him
know, that he stood impeadifrd by the Com-
mons, and that, u[ion his withdrawmg himself,
a Bill of Attainder had passed the two Houses ;
by which, however, he had time given him to
come in, a;id make his defence.
The earl of Danhy excused his not appear-
ing sooner, declared his innocency, and made
several Petitions to the House, anil then was
ordered to withdraw. And being calleil in, and
hrouglit to the bar aofain, the Lord Chancellor
ac<|iiaintcd him that their lordshi|>s would allow
him time to give in his Answer to the Articles
of his Inipeuch:iieat, till the tirst day of the
sitting of the House after Easter: That if any
further rhaitre lie put in against him, he shall
have further time lo answer ; That he shall
have counsel assigned him, and shall have
liberty to make Uae of records, aud that liis
witnesses shall lie summoned.
• Vyon which he withdrew, and by order of
the llvujw was commitied to the Tower.
On April 35, the earl was browbi from the
Tower to the bar of the Lords* Hooae, where
he delivered in writing his Plea lo tbe Artidei
of his Impeachment, which was as fbllowt:
The PLEA of the EARL OP DANBY, Uu
Lord High Treasurer of Emglako, to
THE ARTICLES OF 1»1P£ACHM£KT«
AND OTHER HiGH CrIMES AMD 3IlS0E-
MEAN OURS, AND OfTENCES, EZmBITED
AGAINST HIM BY THE NaMB OF THOSiiS
Earl of DANBY, Lord Higb TVeasoib
OF England.
The said Earl for Plea saitfa, nnd hnmblf
oflereth to your lonbhips, as to all and erart
the treasons, crimes, misdeoieanoari and tt
fences, contained or mentioned in the said Ar*
ticles. That atWr the said Articles exbibitri,
namely, the Ist of March now last past, ths
king's most excellent majesty, hy bis msa
gracious letters patents ot pardon, under Uf
great seal of England, bearing' date at Wea-
miu?ifer the said 1st day of March, in tbeoai
and thirtieth year of bis muesty's reign ; vd
here, into this most high and honoonUr
court, pnMluced under tbe said ffreat seal :
Of his special grace, certain knowledge, ad
mere motion, bath pardoned, realised and ic-
leased to hhn, tbe said Thomas earl of Dasfey,
all, and all manner of treasons, miaprisioBS tf
treasons, insurrections, rebellions, feionisi,fi-
actions, oppressions, publications of wsidi^
mispriiiions, confederacies, ooocealmenli, asf*
ligences, omissioDS, oflTences, cnrimes, cos-
tempts, misilemeanors and trespasses whai»-
ever, by himself akme, or with .any other per-
son or persons, or by any other, by tbe cm*
mand, ail vice, assent, cooaeot, or procoreiseal
of him the said Thomas earl of banby, ad-
vised, committed, attempted, made, perpe*
tratcd, concealed, committed, or omitted, be-
fore the 27 th day of February then and nse
last past, being also after the time of tbe mk
Articles exhibited, although tbe said {
or any of them did, or shouUl touch or <
the person of his -said majesty, or any of hit
public negotiations whatsoever ; and also Ui
majesty's affairs with foreign ambassadnts lest
to his said majesty, or by not rightly pros^
cuting his mafesty's instructions anid coa*
mands to his amiiassadors, residing c» his ■»•
jesty's behalf in foreign parts.
And a»to all and singular accessaries to ths
said premises, and everjr of them, althongfa bs
the said Thomas earl of Danby were, or wen
not of the said premises, or any of them, in-
dicted, impeached, appealed, accused, esa-
victed, adjudged, outlawed, condemned, or s^
tainted ; and all and singular indictments, im-
peachments, inquisitions, informations, eii*
gents, judgments, attainders, outlawries, omh
victions, pains of death, corporal punisluMBiK
imprisonments, forfeitures, piinishnMnts« aal
all other pains and penaliiM whatanwir,.t>
1^86] fif Migh Trtamm.
tbi* i^in^, or any of ibem : and lU, amt nil
nmnnm uf Jfuits, com j i ' - r : : t - : f-h ments
middeniaiidd whalwiet^ ml ma-
jesty, by n*:i8oii of lli*i ,.»..*,.. v., .. any of
iher'ii. llieii Ujic1» or for the future nhonM liave,
iiqr his heirs, or snrrrs&ors, aiiv wuVS COllliI
kipif€ Bfterwurd^ u E lionm^
Fiblof Oaribv: A^ yt'st^ >*
I pe«ce, aofi wliateoevLT to liim mfijc-Kty , hiH heirs,
I or iiuecc^!«or^, agairuit Kim ttie hhiJ cnrl of
I DiitiHy, dill, or could belong', by reasou or oc-
P €»^ion* of the pi'eio»»*c8, or »fiy ^f tliem. And
Ills toitjtsty hath thereby m^^n and ermtitod
hi* firm peftcp to the sniu Thom*» eoit of
Dmnhr. Am' ^ f ; fy willed and
l^ranteil, Omi rit^t nnd the
enid tmr<lan nun rr m t i>otnirir!d, t\H to
fttl tlie tiling's lh med and rcleasotl,
slif>Mi'» iw ..f,od ii;i-i ; ' 'n the law, al-
tlr trcasoiiM, I- - of treason,
his If !m lliorr^ s, exactions,
opi s of words, njisprision*»
<^f tulnieots, ne^lig'encesi
otH lies, contempts, nusdi*'
mi, ^rrrenot fHTtnfnly spe-
ctliid. Au<i sft^ in the
Carlmmeot oi md, late
inpr i^i Envflaiul, in the I3th year ut his reign^
made and iirovideiL And nottfithstanilinc^ the
itiii *ir parliatnent of the lortl F^dward
tf« the 14th year of bis ret^, made
aou 5>ru>»uKi, or any otncr stntule, act, or or-
dinance to the contrary thrreof tuarle and pro-
f\AtH\ *•-' r... .,.....:. L,... ..I r.r.^,^ ^..^fT,
by hiw e,
did liri ^ _i: ^ ^;,;L'S|
jii i:>d others ivhonisoerer, that
til' i tfc'ueral pardon of Iuh 8«td
iri:iji9«iy, »od the tfeoeml ivords, clauice^^ and
Men'rncf's ttbo^-ei^nid, nhonUl h^- rttn^tritpd, rx-
B^^irlH, nod I iul,
' ample ::
A n d I 1 more fi rm d iae Itarge of
the s;< 1 ; I ' . and of-
friti t .■.!,■ It - ii,.i • ■<- inttrnisi
0t ilix iii.«;i-:-l \ , - "niT
*nd foim I'l , li ; >o-
c^ >«, con-
':iiifr the
lai
'in-
^. Atn* Mt 'n»
and th»» n*!i - rd,
all ' ■'::.,-•,; ..,■►, ; ,■: ., .i->.l tvery
Lc *:!''i.f'. ., .*'i J 1 . l--r 1! '.'i |fi«tire3B
1* i wilUtuii nny wni iro^
ail , iifiuw. Of thmif *vha: riy
Dei (i
* tt'ii'-- ric
* tpist- , , , ;'J'id
* No* pm dif cinis tranja Caticii *st Cou«id«rft-
A.D, 167B— 1685- [766
* tlonihiw ri<H ad hoc fipectsliter moTcttt, dtj
* Gratia no^ra special i, ac ex c«rla ^drnttit el J
' TiKMo motu noatf is» Pardonavimuf et Relax*
* avinin?i» \f!.'
And the said Earl doth aver, That he the saidi
Thomas earl of Ilanhy» in the &iiid articled
luiined, 13 the sqid Thurnjif effrl of Oaoby ml
the ^4id letters patents of pariloo here pro-i
dufed, likewise named. ^Vhich pardon thol
^aid Earl doih rely opon, and (de«ded the «um0>|
in bar of the said impeachment^ ^m\ in dis-
charge of ail the ^r*-'i**on<;, rrimes, nii^de
mennors and <in mentione
in the said Arti< :ind everf
Ol'them ; andtlnsme s-mu ijuns ri . '
Wlu^roupon he humhly prays the ^ ^
of yoor lorilshijjs, nnd that hf?? r^* * t
c^^rac'tons pnrdou nforrsaid ipm
aiMl that he the said Earl, by Tiu. ... ,, j....yJ
l>e (ft ofu xll the said Artictt^ of Impeach mental
and all and every the treasons and crime
therein alledged agatntt bim) acquitted an
discharged,
A Copy (j' the, Paruon of Thomas EaH
Danbt,
• Carolus secundus, Dei Gratia Anglia^l
* Scotisp, FranciBT, el HiberniiC Rex, Fidei De-
* tensor, .Sec. Omnibus ad qiios prop*;entc
* Ittene nostrte pervenerint, 8alutem. Sciatit,!
* tjuoil Nos pro diversis honis Caiisis et Con-i
* !iidprationimi<i Nos ad hoc specialitrr movcfl'-J
* tibufj, de Gratia Nostra !«peciali, ac ear ccrt^
* scientia et mero motu nostria, Pardonavimu$|l
* Remissimus el Relaxnvimu??, ac |»er pra:*'
* semes pro Nobis, Heredibus et Soccessorihuf
*" nostiis^ Pjirfloiiamus, RcmiUimus et RelaxfuJ
* mus pitedilccto, et perquam tjdcli Con^rl
* Hanguineo el Consiliario nostro Thorns Comid
' D^nhii^ omn€« et omnimodas Proditionc^
* Cnmiua l^wj Mai«?stati», Misprinionis Pro-
* drtiouum, hisum^^tiones, Verborum Propala^fl
* tfoois, Yi' N» Confederationes, C*on||
* celamen ^-^^ ntias, Omi»48iones, OI«j
* fensan, tnniiua Contemptua, Malefacta
* Trana^es^ionc^ qua^cunqms per «e solun
«e
Tia, Telalit
» alimn. m
I men to, a^sv ««-<(<
-' <!jusdem Thomi^
r!r:m iitn nl h'rnnf r| ■
!l I
* Beu cum aliqii
* perSMois, nut
* ahoi^^cif p*^-^
* scnan, s
* ComitiN 1
* fac^a, perpetTDia, <
* orni^wa, ante ^7 fb-
* pnvtefituni,lic«'f ptu'misvQ, vt-i cf
* vel aliipiofl, rnntfiun V( ! tinvu p
* ncjyroliait
* ntH'oon \
* Ui
* It.
* No*.tn';^ Hi puuninis t -^
* N«H«tra rt-Hident. nc ett :
* ap'i itvictiw, :i
* uil«„ , - ,-, vel attincl.j
^ ?<d D91I t&xmil, tv CHfiuia et ainernli lodicM^
, ,itl
' niam hu litem nottiwi fieri
* tentei. Teste MeiMO spiid We
* terium 1 die BfartiL Anno Mgni noetri 31.
< Charles the seoood, bj tlie moe of Ged flf
* EiM^Dd, Sootkml, France mad Ireluid, kia^,
' defender ot* the faith, dec. T6 nil to whoa
' these our letters-patents alinll come, seotfcth
* greetiDip. Knew ye» that we for diven gitd
' causes and cousideFatioiis,
* cmWy moving, have out ^ our special frvosr,
* certain kuowledire and mero OMMion of sv
* own, pardoued, remitted and rcleooed, and iy
* these presents for us, our heurn and nn-
767] 1 JAMES IL Proceedings against TkamoM Earl ofDanly^ (^
*• meata, Impetitiones, Inquisitiones, Informa* ' niom has literas noatraa fieri feciim Fl-
' tiones exigenda judicia, attitiota, utlegaria,
*■ Coiivictioues, £zecutiones» Poenas mortis,
* Pcenas corporales, Imprisonamenta, foris tao-
* tura, Punitioiies, et omnes alias Potnas et
* Pceualitates quascunque, pro eisdem Tel eorom
* aliquo, ac omnia et omnimoda, Sectas,
* Querelas, Impetitiones, et Denuuiila quK-
.* cunque, quae Nos versus ipsum Tliomam
.* Coraitem JDanbii, ratione praemissorum vel
* eurum alicuius, habuimus, habemus, sen in
* futunim haberu poterimus, out Ileredes, seu
* Successores nostri, uUo modo habere poterint,
* in fuiuro, sectamque pacis Nostra*, ac qux ad
' Nos, Hercdcs et Successores Nostros rersus
* ipsum Thomam Comitem Danbii iiertinet, seu
* potinere poterit, ratione seu occasiooe pras-
* missorum, seu eorum aliquorum vel alicujiis,
* ac firmam pacem Nostram. Kt inde damus
* et concedimus per prsesentes, et ulteriiis volu-
* mus, et concedimus. Quod ha liiercR nostru*,
* ac b|ec nostra Panlonatio, Kifmissio, Relax-
* atio in eisdcra contenta, quod omnia et sincrula
' superius pardonata, remissa, et relaxata, Ixina
* et effectuates in leffe sint, ct erint, licet Pro-
* ditiones, Criroina Txss Majcstatis, Mispri-
* siones Proditionum, InsurrectioneK, Rebel-
' liones, Ftflluniie, Exactiones, Dppiessiones,
* Verborum Profmlationes, Misprisiunes, Con-
' feilerationes, Cuucelamenta, Neglit^eutise,
'* Omissioues, Offensa, Crimina Contc'm{»tu9,
f MalcfactaetTransgressionesnntedicta, Minus
* certe specificat. existunt. Kt nun obstante
'* Statute Parliameuto Dom. Ricardi Secuodi,
* nuper Regis Anglia, Anno IS Rt^ni sui edito
* et proviso. £t non obstante Statuto in Par-
* liamento Dom. Edwardi Tertii, nuper Retfris
* Anf[flia, Anno Re^ui sui 14 edito et provitM) ;
f Aut aliquo alio Statuto, Actu vel Ordinatioue,
' in coutrarinm inde editis ct provisis. Et
* ulti'rius (le uberiori Gratia N<»btra firniiter
* Prxcipimus omnibus et singulis Judicibns,
* Justiciariis, vel aliis quibuscunque, Quod hsc
* pnescDs Litera et Geueralis Pardonatio nostra
* et general ia Verba, Clausula et Sententia:
* suuradicta, construentur, exponentur et ad-
* judicentur in omuibus Curiin nostriset alibi,
* in bcneficentifisimo, amplissimo, et benignis-
f simo sensu, et pro maxima et tirmiori exone-
* rationi pnedicli Tlioma Comitis Danbii de et
* k crimiuibus et ofTensis pr^dictis secundum
' veram iotentioncm nostram, et in tam bene-
* ficiali modo et forma et ad omnes intentiones
* et pi'oposita, proul si pradictte Proditiones,
' Crimina laesa Majcstatis, Misprisiioues Pro-
* ditiooum, Crimina Ofiensie, Misprisiones,
* Concelam«*iita, Ne«rligentia, Omission*'S, Con-
* temptus, etTrausgressiones prailictui ac cetera
^ pramissa per apta expressa, et bpeciaiia Verba
' PardonaUi, Remissa, et Relaxata fuissenf.
* Et quod hoe Litera Patentes, Reniissiu, Re-
' laxatio, et Pardonatio, omnia in eisdem con •
' tenta, in quibuscunque Curiis et coram quibus-
■ cunq; Justiciariis nnstris, placitentur et al-
' locentur, sine aliquo Breve de allocatioue,
* aUqua re, causa vel materia quacunq; in
cjo iiartioo, remit and rcleaoe Is s«
* well -beloved aad right Inutj oooui nrf
* counsellor, Thomaa eari of Doohj, all, wai
* all DMuner of treasons, as weU lai«fb-tresni
* as misprisions of treason, insurredMos, l^
* vealing of councils, misprisaons, oonfedca-
*' tioiift, concealments, neglect*^ omiaaMosi d-
* fences, crimes, cootcni|its, misdeeds ad
* transgressions, urhatsoever by hhaaclf alis&
^ or with any other person or pemona, or kj
' any other, or others, by the oominnod, advio^
* assent, consent, or procurement of tiM ni
* Thomas earl of Doirii^, advised, romminht
* attempted, done, performed, conoeaJod, em*
< initted, or omitted, before tlie 37tb day d
* February now last past. Althou^ the (se*
*• mises, or any of them, toucl>, or may lOMk
' our pei-soD, or our public negotintiona wha^
soever, or our transactioiia with foragBiB-
< bassadors unto ns sent, or far not ri« isl-
' following our instruction and raanaMi to
' our own ambassadors resident on our khilf
* in foreign pails beyond the seas ; And aia
^ all and singular accessaries to the prenises,
* or any of thorn, although the said Tbomi
' earl of Dauby be indicted, impeac-hed, s^
' |>6alc(l, arrcsied, convict, adjudged, orassn*
* bussador condemned, or be, or be noCattaialii
' of the premises, or any of them ; and al
* and every indictments, im|M(achaienCs,
* sitlons, informations, judgmentatu be i
* attainders, outlawries, convictions,
' of death, corporal punishments,im|H'i9onmeils
' forieitures, suflerings« together with all other
' pains and penalties wliatsoever, for the ssflM,
* or any of them, and all, and all manner sf
* suits, complaiuts, impeachments and de-
' mands whatsoever, which we, against ths
* said I'homaii earl of Danby , by reason of tbs
* nremisi's, or an> of tliem, liave had, now
* liavc, or hereai'ter may have, or which a«
* heirs or buccessf>rs in any manner may havc^
' hereafter, together with any suit for hreich
' of our peace, which to us, our heiri| or sae-
' cessf>rs, against the said Thomaa eari of
' DnnUy dotli, or ma^ belong, by reaaan or oa-
' rasionof rhe pn'niises, of sume, or mof ti
* thcui ; We do forever indemnify I
* over we give and grant by theae [
* it is our further wdl and pleaaiira# thai thtfv
* our letters aud this our pardon, riimiMJnnMi
* release therein oontainad, aa in nU mi liiigiihr
.■K
7693
fur High Treaton.
*ibe Ihiogt almvn pjirtlonetl^ r«Tiuitteil ftiid r«-
* l<3«Krd, Ue aail &li:i11 he. i^jnil a^iJ rfTrchirrl in
* kw, although [ ns,
* liun^, fi'tamcftf up|neMiuu», be*
•tru^ing of vnui ifnicies, couoenl-
* UiLMitfl, ii< I IS, odReificeSy
* crimeai, CO J 1 nr% AH*] trau*»
* til'/ ^: . ,, II) lin-
* laih lovicled.
* An<S tK>,^., ■'"." j..]r-
* Ifariu'ot at of
* K»M.I...,i . . .. .:.a«jc
* I' ar.f, oi'
* *' j>ubibh-
* Lil uu'J j>rui'i«i<r»L And mortovir oi" our
' flhrin !ant jrrarr, wt ifo stricUy en Ui ma 0*1 «ll
*ji' or othei's nlialsoever, thut
* is • r, Willi our g^ent^ral paixfou,
Iftt > tl, expoUDdtii uitii
'u' and eLsewhcre, in
' ll nple, and uiuit fu-
* ^ -iiiu mr i' f'St niiJ
Ml e of the Ihotiias
*tuii .. *.,,.*.,», of aiid i*^>,,i k.v crimra,
* tnd ofli'ucfs aforesiiid, according \o our true
* ItJlt'lil i{in. ;i]i/l in sii iii^nrficiri 1 :i nunTf^T SiMd
* f' -, fio a»
* jj iiLii^ijri-
* mvn^ t)i It
* €Otllei£l|iUs
* traii«gri-i(«iim j^tiresjud, «ind otltirr llje imu-
* miaeft, hiid lH.*eii by apt^ exj^rcsii am) s^H^cial
* wwtls* |j«rdojicdp remitted and rekascd.
* ^hd lliai lilt w! tetters jratcnlK, reaii&tkion, r*?*
< Je^seand |iardon, wttli iill ill' ' leincon*
* tiaiiiedf in whjiU'Ji^cr court , i ' what-
* iiocvtr eiur ju»lif\», shiiH bi- |m';uini uud al-
* |awr<l iriibttnt ^iiy nrii of* allawance^ »ny
i ih '"' ' •' ' ' ' T"'Htcr ivliat«i>evrr iu auy
* IV In ^ritufiMf v» hereof
* I' e !,_ ., our UrUrl!!'|iUt(2nlK U>
* be niftdr. ^V uocik% luy^, at Wc^tnaiiiiier,
* llie firrt day ui iMiirch, in the 3l!>t ywr of
* our rc'i^'n/
When Uie Pie* and Pardon were read,
ihe enr\ wiibdrew and Has carried iMck to the
Tower,
A it»eartft(fe was ii>ttl from ^e Lords to tbe
Common*, * T T" ♦rt of Duobv hail
* thi^ dav «i n at U»e lior of
Mir- r-^- ,,u* uad prtin V-^.!ra,
Mr tl ' V ,..,K ....:*^a*
' tfNik pmoe* *
td III, \*htn
pli' i<i iror*i; :
|iaf hamcnt ^ d. 1 am unable to give
Atis^vcr Ui U I lily nh^nit i« called
^* A «tafinp€d IVUou by crcatiou.** I would
A. a }67B—imS [770
refer it to the same CotDiiiitke* h b of va
imfKirtancc,
Serjeant FMis, \ ibiuk this matter U
II (Pat wf iybt, and \»oii!iV !«f vour TiKtsT KrrHJtil^
urn. Thr 4
lis [drii, ji«i ^> J
ynu' iu'uc\e% arc in iWtv, jiciuiU idjCc^upoiiJ
w** vW'A. 1 uill f^ive no opioic»n at |*rc^'ti|
it, bill 1 move tbatiiumc select uun)l>ei of
I -mt'si may be oida-ed iti prepare, andl
< rnvider tbe m; ' ' ^*
tJiiTieil. You ri
the more you tiu, (l »»iii ur u»i utm. , uu.i
diiy or two's timt: you may give an aniwcrj
to 'it,
8ir Ffftjicis Winntngtvn* Since 1 have hMll
ibo bujti ur of l»eiiit( a tucrtjber of this House, T
t s h 0 V e \yL'iH i d iseo ur se d I lei-e, Tb is 1
I 1 as can bu. AH the ph.") i^ tui;utiooei|j
uutler iUv word ** Prolt'slalion to all the AaU.
clesi, ^;r,*' — And they b^vc no more O|>emtioi|4
in law than if not mentioned- The earj
Unoby has g:one ho far, as that die Corniuoui
are not tiMi^d lo any ait^wer. Hr buK left nqr]
n»om to {iruve luiy one urtieli; ; for bi>» pardon I
is amooiitii^ to a ^ ' i. Should thi§d
pardon have uttowrn ntut the legsll
oourscof otrtainio^ it; i* ^ti^i men do cotortf
bitanccs with fiardou, it tnkes away culjia u
«i II UK n . 'VU.i,-. h; nn end of all justic^']
tis are allowed. Nil
1 _. J'lod than I am ; but J
ly, ti I }U tbo matter nmy har#1
^ itiott, lo sec n hat former a^fet)
have done iu such ea»e9. and gre u i t
is not :> rnrc tbin^f ; and see what tlie ^
< t.tnduitOD. It istuo bigffoi a tc^ohi- I
orainittee ; I would b»Te tbem onlji
t>i iie vhc ojutter, and then conaider what a e4u^ j
dition ive mti in, a«i to law, against i»u<-b i^reatj
men as tiie^e, wben all we iiave iti at stake,
Mr, GiiifouMifu 1 honour tbe gcnileman in '
hi« station. But what becomes of t' -'^ ifi
thifj piirdun |td.^s? If it fad bi'en ''
laced, it bad htica all one t^' rive. I'l.,..^:.., ..y
to referring^ it to tiome Committer of the Longp 1
Eohcr, they may inJbrm you bow the casaj
stands in ti)«ir books, and you ruay take i\i'\U
b^rabon what to deiermine iu the matter. IsxtW J
1 atn tip, I wouhj move you to have tliose J
whom you refer it to, eonaider. wlietber yoti ,
will not let this pardon be pitfaited ft*r all, and '
then we may consider wbat that ** AH" is, that 1
is pardoned* Next I move^ that w hen the ite- '
port coiues iVoto the ktr ahout the money, (let ^
it come when it will,) that you givt i * / ^
till you hare eleared youisclx.a of i. t"
Dauby, before you proceed upon 4iii> ^^imU
whatsoever.
sir TLpmut C target, I tbink it n-^* Hi <o
I the Committee shull Btak
of i»rfttd«'ut* But 1 diih 1
^' Ue cstes tio ^
I Miie." For if t :
* vum ^aU^u4 JikU4 pec*ou^.'
They ujAy im
771]
1 JAMES IL Proceedings ar^ainst Thomas Earl ofDanhy^ {TTf
females ats \rc11 as males— I am of opinion, that
we ouf^bt to have rijrlit in this, before we ^\e
money ; for the kin«r has been dcceiFpd in this
paHon, and ko has the nation. But I would
not put the Committee to needless liiiuble — 1
heUe?e there are no farther articles hut since
March last, and this pardon does amount to a
confession of the whole, &c.
Colonel Titus. By tlie trouble this gfreat
person has {^iven us, we may plainly see how
much easier a faTOurite undoes a kin^ora, than
ser>'C8 a king^dom. The man pos^ssed with
the devil, in the Gospel, had his body torn,
and foamed, before the devil could be got out.
Of Danby's protestations of not guilty, in bis
pardon, I beheve not one wofiI. And*I believe
Danbv does not believe one of them, else he
would not need a panlon. If he need it- not,
tvith what face can he plead his |)8rdon P In
that he acknowledges hn guilt, and if all
knew as much as he, he stands in need of a
greater. What offence is there not mentioned
in this pardon ? And yet, what offence has he
not done that he staiids not in need of a
pardon ? If by villainy be has got honotin, if
by rapine an estate, and if that ptu^on is pleaded
to a House of Commons, and made valid, onra
will be like the Athenian laws, to catch flies,
While wasps and hornets break ont. Will any
good man have encouragement to do good, or
discouragement for ill men ? Has Danby any
hopA of another world f He would never then
be guilty of such crimes, to stand in need of
puch a (lardon. I move you *' That a Com-
hitttee of the Long Robe may search prece-
dents, and grive you an account, 6cc."
Sir Henry CapeL I drffer with the gentle-
man but in one particular. He says, " as
Danby has given us tronble in his prosecution,
vo he lias at his exit" — If it be as he says, the
articles are out of doors, and the pardon only
remains to be considered — When great men
have committed great crimes, and such a body
of men as the House of Oonmdons have know-
ledge of them, we ought to bring such a man
to justice. And since he has got a nardon , it is
worthy of the consideration of the whole Hou^e,
and not of a Committee barely. And therefore
1 uould debate it in the whole House.
Sir John Trevor, 1 doubt it i^ill be a hard
matter to put a limitation irpon the Kind's
pardon unless by act of parliamt-nt, and that
act is yet to be round out. As for the King's
Corouation Oath, lord Latimer and Lyons, in
EdwanI 3's time, were impeached by the Com-
mons, and after their trial and coiidemnation,
they were liotli panloned. And this was at a
time when arbitrary power was as high as ever
since. 1 Richanl 2, this pardon was complain •
ed of by the House of Commons,'but the result
at last was, they impeached the persons who
procured the pardons, and lookeil into tlie man-
ner of procuring tbeni. This 1 say, that the
Committee may view the precedents next, as
to the manner of gaining of pardons. When
gained lo much to the SishonOtir of the king
-iiH/irfhgdga, tiny were etoiplaineil of and re-
voked. And next, thongh Danby ham pot bit
life upon this pardon, ami this panloo be void ;
vet it lies upon your honour by bill to show tb*
king, how nis honour is concerned in it, and
the nation's, and to desire him to reroke it
Mr. SachevrrelL I difler from moat gentle-
men, &c. or else I would not tronble you nov.
My opinion is, that this pardon is i1le«i)y
grounded, and that it is void in itself, if it
pass, that this is a good pardon, nod that ill
such crimes as this lord islands chniged with,
are pardoned at one blow, fkrewell mU ! There
him, that this plea ofUying them npon the
king, deserves as great an article asaimt him,
as any of the rest, &c. and I womd have it
addedf for one.
Sir Ihmias Lee, If von |p on widioiit anad
of pariiament, and make this pardon tohI, na
save yourselves the labour of all proofs, and m
you deprive him of ail defenoe*-Yoa riionU
not hinder the proceedings of the oetret eoB-
mittee ; but if other matters are before yoi,
prepare them into articles, and ffo npon then;
anfl then you may spend your time to consifa
whether it be proper to void this pardon by at
of pariiament.
Resolved, &c. «< Tint it be refenvd to ill
*' Committee of Secrecy appmnted to diaw ip
" furtherartides against Thomas earl oflMv
<* to examine the matter of the plea of tfie im
<< carl to the Articles of Impeachment eifaiiU
** cd against him by this flonse : andtoseadi
*< and enquire how* precedents stand in itetaiMi
<* to the pardon ; and in what manner, aod bv
*< what mrnns, the same was obtained ; w
<* make report thereof to the llonse with iB
*• expedition.*'
Jpril 28.
Sir Frnncis Winnington reports from tin
Committee of Secrecy, to whom it was refer-
red to examine aud peruse the nature of iht
Plea of Thomas rari of Danby, to the Artides
of Impeachment ^xliibited agntnst him by tbii
House ; and lo report how Precedents stfld
ill relation to tlie pardon; and in whi!
manner, oid by what means, the bame wasab»
taincd ; that the Committee had agreed ap0i
a report to be made to the House : which bt
read in his place ; and ailenvards, dehvercrf
the same in at tlie clerk's table : where tbi!
Kame was again read ; and is asfo11oweth,vit.
*' We find no precedent, that erer mty ]
don was granted to any person impeachec
the Commons of high treason, or other I
crimes, depending the iRipeachment.
'* As to the manner of iiassing the eari of
Danby 's pardon, it hath been formerly reportri
to the House : and theCommittee reliers thf»
selves to that report.
«* That by what mesna it was obtained, ilii
time allowed the Committee balh been ao sboit*
that we cannot as yet discover the adTHcn sr
proGWvri thereof, Miy lUtthar thA what it
7T3]
MHighTn
boned in ihe tM mfoH nAmimg to the loni
V(t>aU i hereon*
Mr. Bemmt. 1 brhcvc it wiH not hm fiiUTMl iti
bi*' books, thst 1 pardon b.is bnrn abtsitiiitk in
Ihtii mrninrr, or ihnl the lord chancellor «Hcr
parted vtith tbe smtd, ma you Imve bcmrd it
reported.
Herfeajil £//it* Tb^ miMtioD iit, WtiHUcr
tliui jile* ol* lord Dft»ih}-^« n Anton bt? t\ i^fwid
l^ea, and tli« mnniH.T of iJhtainin^ it ? Th«*
ligllUr way of
QMHWtl, nnd ttir
M« mtn «f ibtf law. i
doty ofibclttrd ehiMiti j. M
tlux tmt a ffCKKl panrlon, Ui
'ip K in ineir
VP. IttKtbc
.1 l.« H...^,..l.i
hiAdc r
lii»|H» lb** l4lftU ^ Ji
iiIm be Of er-rulrtl by
pinlfiB, not oiiljf for the a,000 murk*— ^# i
HIS t4\i lUf M^
:,ritl'LlTifill «
Uu^tfient, ib«fi «|1 ibiii i bai« saiil cign^ict
notliin^.
N<Yijtfoni EliU^ In ilw [laixlons of Lyons ami
liAtinirr, it in phin tbat ibc* kinc veeius iji^
. hv
• uid'
.1 Itself Lfl not iegnl ; it is
v«m «leinur ujion il« I
lerii. If thiv
V on can f)t:f er
have ju^oe n^inat ium, ^\;t:. This ta aa cun*
ninf^fv at ttfr wm* done^ — captttre imlgu*-^
II
tor ijjc i duruunn vjiTitKiL v i :;
liomiur ; for flo igmm cm 1' (hit
Ftva* I iliisfelbt^' -,.«>-i .,>,,, „, ,,,^,„ i,.v^ir?r,
iod eaifMHst Uie r > pardon^ and it b
ITina nranpf tl» J^ . .. i,.._ . Xtis tO join in d^J-
h^ I tisiK la no It^al pardon,
frevpr. TIk- ijrif-^tion i» now tbit
•11} ^c i^omt, -whetlii*r i' i of the ear) u(
l)m\hy he u |(o«d ami ion, or no ? I
%% ittv^t il)i^ pouiL MTjih Serjeant Kllis^
v; ... be a i^ood pardon, or iiiH, ] pro-
test bLiiiiL' <kifl, f am DO lulvoeat^ for lord
0anl#y : but for ili€ lair inierpretatiufi of tbe
lloitte, ] witl n\»eD ttiat |>ftri al tlie pardoB to
you. I huuibiy conceive, tlial m tboie tiro
|Kvc«Nknla I vouebed lo tlie lloyao tba oShier
dmy, I d«ah fatriy. ilue pisowlefit waa 50
K,3Jii lord l^iuiirr'K c^we. The etiieri a4*
ItiLhard Lyona, Mtrdiaot, waa in Uie lat R.
SL The proccikoi I cvked ofii^id r^itlificr was
^Ofiirery lo liie 0|»itiHai < bnaiittee,
littimtT maa impeadied o' (jn^ uiid
one or two marc; l^ re uf ininde*
fiK^anor l-lnff, begni Unfj*« impo-
giftOfT ' ^ ' . Wtid gaV« litHl l]*> irrrn ut of
ilwu. ihiitrfad up iJ)< i'^ri «»r 8t.
Jto^WMir, i'U«: Itut uflir nee uraM, tkat he um-
nruiioli^d u(v»u roipil ifuwar^ aod If^t |^o ineveral
iatoCf ami a(i^«r |iriiiicii?r!>, wilbont Uit* king's
fwilar. Latimr Mca^i, ^' lie doea ackocrw-
Mfte ? /" "^ irlta dm? lo Hic lua^, and tub-
mi^i*> ^KpniMaiid lat our, and that
' ku £«000 ituurka witb«ut m'H^ ng
Mdf ." To JiU IImi fiat ha ^^m annwtnv^
A«d wbaraai htakmv csoufaaaikd the aiAtler,
md pfiikMid nn iianlanlWMa Ihc king, be waa
aaodaMHiadt bMl Juft f Miaf m 4o l^iMDtr. line
IM-tiamotft^iidtfdiiiiaftlbe \mqq^ hia^htB
rdun,
hi in.
A thru
.1 iirnrntf
ud»
liMkadf.''
jitdgntent ^ivcn by parUsiment
and ihi^ kin^f parduns whot tr
• s, and th
iauiKt^M »!'> iunii>, it> II no iiij^
«^ivr UtH'M (tlmngit (bt^r^ ^ra^
M....K* >rt»port treason ia tht »*.i,.*.
it by tljc Slat, of a5 liilw.
:_ ; 111 -1 fiiii' iinnn hifrl (if 'lOMlH
and ^
loiig^ ;
to nrbom he wil\ ; '
] wdl nut $ay there ;h i,
6iC. but the ktitjf iik^vt^t
judgment or reaqinlion \v a _
in parliament. Out to ^^aidun Ltilurc tr^^
when thi? k'my( kmt»% not yvhai tiiutt lie is to
' ul. \ man iii»y
'io what he wiij.
i iii;> IS ti iijuii^ ui ii !»i.rari'^i" [luturc. The kiaj
caunai pardon a tiian, au impcachnient depen«
in$r-
^^r Franc ii IVinnington, This does not only
concern a partieuiar mm, but the ^mt^rvnu^fii
) ofEa^Jaijd. What you debate k '■ -
Mvc either to ihi^ Commons or lord 1 ' , •.]{
itnty nietiifkdM to discbarge our jduty to thi^
kin^, 3tntl thoae tiiat aent U9 biUier. Aa t9
uier 'fie manner aad uieans of obtain^
lixg !. 1, no man can preCt^d any iM^e*
cedent. ilanUy thought the illcifaUty qI th^
j>ardoo »o i^^eat, thai th« (»^ctfrs« tbrau^l^
w'boae huoibi it must y^o, ^mild nm p»s(i |t^ auJ
tbcrelbrt took thi«i course, llut we ouJ$t vd^
oif tlif (lartides of the manner of ohiuining it*
I an) of ofMttichO to tleoiur to thii» yha oi hi^
pardno, for it waa nevur jiraetiMd, and Trevor'a
lira (kreccdeots arc not to tkis c:Lse, A (laiihiti
granted ** iur all oti*tu<.s. to ilu ntU ai' IVW
luarv/' vrhtch ia il
|ieachnnetit was exhilf
lierpcirated. State ibia inci only, and ^e viiaJt
a oottditiMi %re are in, ij thia he a gootl purdoa.
A* to the ca^ of I^atjmer and Lyooa^ Trevor
i^recf) Uiat the fax)^ they were un peached of
were crmfevaed by the (mrtiea; and Latuuc^
*^ aabmits bimaelf to the grace and liivour of
tin- ^' 'V ' I, not to put hiitt
to hi lands." \\ b«wt
in tbc ujviuiiu^ ui iitipetuLuiuuMi in parliainent^
fiaoanae jfroat oieii cuoiout |p>«at exorhi^
laaeaaj aiiil wbau tlie fact i^ |»rovod by ibf
£omittOf)a» or the party coafcsiiw^ Sec. that ia
all tka oommofia cau do. mnl dif ioids girr
judfiDailllb«ray|ian. >^cad
M»jud<pMBt»An^t I ;ili»|ii>
tiki& kiflgj md all if a«il«d la li»a i^fitfj and Uia
I
J
1 JAMES 11. Proceedings egalnsl Thomat Earl ofDanby^ [776
st(»red but by act of parlkmeiit— 1 1 Ilidi.9.
Sfjuire attainted, restored 16 Kicb. 2. Anoilicr
tliiojr 19 Hen. 4. little diflTereot. Id the Re-
vulutioiis of York and Lanouter there were few
imucachmeuts, but by Bills of atUiodcr^Linle
dilference, bciogf the assent of the whole
body. There was a power lodireil in the kio^
that he mig^lit pardon, &c. DOtwilhsUndini^tiicK
was no iiarliament, &c. A great instaocx
tliat the king could not do it without pariia-
mcnt. I^}^ Bacon was fined fur niide-
nicanor; the king panloneil the fine, but fbr
the judgment of his disability for offices, be
never |»rdoued. Tlie dukeof Buckinffham eea-
cliides his answer, •' That what hedid waibe.
fore the U\%i of king James, and chiois ibi
Gipeneral pardon, and the coronation pardoaflf
king Chark-s, and he had taken a pankm, a^
cording to that grace of the king*, to the Sltf rf
February last parliament. " The tluke tboagk
it the better way to disaoive that parliaoial;
than to plead his pardon. I think it not en-
reuient to take lord Dauby upon thcfinlsl-
Tauta^e of this first propraal, but perempMrilffi
if he insist upon his pardon, juij^ment inuafi
agninst him. Fur my share, T wouM uavi*
ingly insist upon it at the Lords bar.
Seijeant Maynard, People abroad km
not what is pica, and what is not plea ; bmil
lies all upon the king« The plea is not yct»
teretl, &c. and lord Danby may withdraw it
As ihins^B now stand, I woukl adrise to lalf
Yourselves to tlie Lords, to know wlim
llJanby will stand to this plea. If ctimiMl,
and that plpa be found against liiro« he isgwe;
but in purhament be should not be taken wiA
a Why not. T desire you tvoiild go onlj ea
Iho crime, and not on point of law.
Lord Ctivendith. The sense of the Hcwe
is to demur to the panlon. If Danby inso.
^c. then to try the valiilily of it. The \mi
chancoilor said,' <* he intenifal to make use d
it, if false witnesses should arise against hioa.'
Ho cannot know false witnesses before be coma
to trial. I would desire the Lords to dtmni
of Danhv, whether he will insist upon his pw-
don, or his pt&.
HesoWed, *' That a Message be sentlolW
*' Lonis, to desire their Lordships to demiai
•< of the Earl of Danby, w hether he will idv
** upon and abide by the Pica, or bis Pudoa."
775]
kiuQf may pard<»n his part. I conceive, without
all scniple, that the Commons right is to have
justi(*o by trial. As for the fine of 2,000 marks,
in Innl l^arimcT's judgment, that came to the
king's coffers, and' the king might pardon it.
In the case of an appeal of murder, the king
loses a subject, and enquiry is made how he
canir by his ileath, &r. The wife and heirs of
the party, &r. have tlieir vengeance, and the
king cannot pardon, kr. Ho cannot hinder
execution of the party ; and no man can deny
it. When an impeachtncnt is by the Commons
against a great roan, they are aggrieved, and
they must have justice. An impeachment is
to ho puqioffc when a panlon shall stop our
nmullis — And there is no end to the oppressions
of all great men, who are too big for inferior
Cfiurts to deal with. The committee does dis-
tinsruish pardons, where impeachments are
depending, and where not. We have proved
our case, and a pardon is clapped upon you. I
would arirnc it at the lords' bar, and 1 hope the
lords will not give juilgnient in this case, &c.
to be a {rood pardon. I only mention this, to
show that is not a point to give up. No
great man was ever so stout yt^f, as to 'get a
pnrdon when his imprnrhnirnt'uas depending.
The late liuke of Bnckintrfiani, tlioujrh he had
a pardon, dnrst never hriiu/ it to liurlit during
his impeachment. Cirtainly this cxprriment
inis-ht have been found out, hud it been Irgal,
in five humlrFd years. W'c iirr not to give up
this point. Now the country has entrusted us,
let US do the best we ran for them.
Hir Jnhi Trevor. T say, a prison impeached
may deny one crime, and confess another.
Tjord !/itimei- was iin[irache«l, and one of the
crimtis hp was charged with he did acknw-
lfdi;;o, hf'fore ihry proreedod to (lie rest.
Tlu'iei*? :'.o relative* cvpreRsicin in lord fiatinier's
pardon —" Quoad nos portinct" — ^Tlic king
cannot TC<;tori» what ho lias ;drea«ly cfiven awav
— ^Thc 9,f JOO marks wore laid on* Ijatimer a? a
fine ; tlio 20.0. )0 niarlxs was his submission to
tlie king. Thnl impeach moot was subsisting
aftor the parliament, and this of lord Danhy is
a pardon, \'c. ponding the impoaclimont.
Mr. Pnrlv, I confess I am unprop:ii'od to
speak to this n-.att-r. f find the oa':c of lord
Latimor urjrcd, which was an imi>earhment of
50 Edw. ?i. and sentoncrd then, Vc. But
that in th<* ca*;o is not yet taken notice of, that in
51 F.dw. n. the prirliamcnt rerorseil all those
judi;ments, and a i»articular ]»otition of the
Commons complain*;. " that lord lintinu-rwas
imduly impeached, and desires he mny he re-
rostorod in intc^roy Historians tell us of
some extraordinary power in calling that par-
liament, by the duke of Lancaster, the king's
son. ^ Sir.tolin Poachy and f jVoiis pnrticularly
petitioned that rhov micht lie restored. Others,
m 11 Rich. 2. — A irrcM number of persons
ivere appealod by particular lords, and some by
the Commons. 'Thejudcfcs were all iui|ieach-
ed for givincf mdement a^inst a judgment of
Sirliament, and were banisheil to IreiaDd. Sir
, AAmtBclkoap and sercnlothen wore not re-
Saturdaify May 3.
A Message from the Lonls, by Mr. Jostiei
Atkins, and Mr. Justice Jones, viz. Tha^ thi
earl of Daidiy, l>eing this day brought to the
bar, made the Answer following, by void flf
mouth only, viz. <'The plea, which i bate
** put in, was put in by the advice of my eaoa-
*' sel ;* and my counsel tells me, that iny Vm»
* « The man of the law, thnt the rari if
Danhy depended most u|>od, was PoilealcB,n
hone^i^t and learned, but perplexed laisycr. Bt
advised him positively to stand upon iJajH^
don. It was a point of prerogative nmm yd
judged agmioit the crown, soMBughti:!**!
A. D, 167ft-^I685.
TTT] J^r High Trm$on*
*• don is a ^ood {Urdon in law ; atiil ndmci | tin produood hie panlan, nii'l nU.adea it.
[773
bow do ; and L
hwid. to III
•• PiirdoDJ'
Dttmtg Liurtoju*
Mr Jb/in K'^'-.'^A/ TImc ,. .v.l^.r, of ti.^ - .-i
jiijVi) . liir !
)" oil o|>(Mjrtu»iiy to
ilie imtion. The h,
ive prirdous ; but 1 lio»e Gwd wiH bless ih
m itiis jmrduu, vvhifh docs uo les» than [lai-
I all those criinci* be stands acf used ol^ I
ow nraJiin^ gi law but '-elt-preseif .iiiou : I
rould t!nT(lore rnove, Mire is tuch a
nardon. to briiitf in a f mder tgaiust
■H^t' '* f- : ' ^ liifijscnj anti is no Ira U or,
^H ^^^ ^ fmi'doiK Lav vour Imnd
^Hot) ym., i. ...,., mid cm v' - •': ;f h- * . Is a
liucJfel let Ihe ocean in t ly
(lh»i nsifiun, iunl lit 1 , i,, ^jj
^•'- ' Oanb>J
ai«, ^vbelbt-i he will be concbylvd by hiii
'ifoiK llisa simfile ftriiponition, in opposi*
I lo a c«)Utt»lejc oiic, not bv Airtbafifeft lo all-
6r ; but will be ab^ile hy it? Will any man
c \\m to b^.' ati tttii^Hcr? Tos|)eaklikt a
I lil^il *^'"» ^ s«^li««J'rtta», *»r a cotintry g<>n(lemaii
•' by It ? A man Ibat bab not
N a Iious€ 01 C'uiTimons, rmr
FnuRt', nor iHe nation. Ho long' as he
bito been at ihe hcbn, be luitft kmi^v boiv to
»c a plmn answer. Dunby^ as he ts a uo*
nan, h not nkilW in the biw. But nhcn
liud by bis an^w. » ilim ,t ig by bis cootiscl ;
wnether they be J coun^, 1 kimv*
0*^1, but I ara fcori [ rikn i^ive a mtifv
equivocal an*i^er to a plain <iucsiion, I am
not paibarneul'inan ^ufTicietit to pmpo«e what
yon sbnll Jo. Now, whcihor wdl you go to
tlttf Lordit, he,, or lay your hand upon your
^B hanille of Tttgmn JccU^ and jfo br bill of
■Huder f One or the other yow in u«t' do.
^Sr Frunnt Wmningtm. I1ii« (frcat lord
ha* givea >oa a jfrtal deal of troubU-. Give
«!<•-"•' -, .- . .1 ^^^^ j^^^j Dauby
•^*' !iamcfil, and nou-
trnii^ . .. ,„..v ,.„ I .„, jr.wio^^atioQ and disso-
lution ot It ; and in tlie la^i iMrliiinjcnt an well
ai( Ibrs, bi « tav* il nine lo iitjt in bia anawcr to
»»^^ ^'*d lo have recour^* to bl>i
'»<^. Ahkv a monib'kt time,
Iv
K d»*|>4^d opon f!iP f foiiw of T.i.rd«, and on
'•' ' 't, perhnpjs,
Mui fur ibo
I*' i ''''*" * i ore in his
M'o " ** ' f^ houfioru.
Itl
bona/' Dttmct.
. Lb J I ibeie ite
fbat we iiHisidisMKUM of, ^ Danby aayig^]
Bt^> Dibiit«i, «oL 7, p. l^.
This
l,tb#f
111 Ml y\.ni, I <iij jjt'ruM'<i, rendw
nd then sent a Mvasa^e to lh
- Win i»if*r lord Dnnby wouIm
Ui-i plea?** 'And so J
■ '\ a miears to-day, auds'
\% ^fHid in \\\\%\ and he w%i
It/* \c. t hiiinbty con-. J
•*"-•' -I tilings in tl)cm€!««.
of Danby aayt '
tluit be will iumHX upon bis panbn,'* &r;/|
♦•Insist^* i« nuch a p«Hiamcntary term aa iff
n ' / ' ^« Jy condusive* but it is a Teht'incnt
' ; but in pljun l^uylish and comuioii
A«\v|ntji('ja, he is not bound up by it. The
caii*c i^ gn*ut, and the }h%\m^ is thin* Tba '
cau»e h trirar» hecauac tlie comin»ltet» can Hud
no prtH!c*<lcnt of smli a pardon |yranted, pend-
iujf an rmpcacbiiieijt. Next, absobitdy, i( it
l>e fiu/fL-rablo in ibe trovernment of Enj^rjand,
that a man impeached of treason, ^vhicU he
t^icitly contt&senbv pleading hi*. (>Ar< Ion, [shoubl
escaf«%] (and imy man, il' »uch pardon be al-
lowed, ui a hi^fb sitition^ may do so,) I put not
that ruble on my birthright thai In all ray lif«
\ ever did. It *i» ihi- consUtutron of the g««
vf'rDfiienl to have impeachments airainsi ^eal
lords offendera, See. and if tbiPi lie stopped now,
by this pa\rdon, fiirewcil all ; and they will
8tilt be t'slablisbtHl in their luiquily wiibout re-
dress. I pn»posc, tlitrelore, lliat'if tbij* Houte
be »»f opiMioti, tliat by tbij, Mes^a^ce lord Danby
demui»4 upon thi» pk^a, let the Commons sec
what the tnte of lluir interest is. For hii
connsfel to l»e heard at the Lords' bar, tliis ik ^
matter of jp-eal riioment, if Daiibv inttuds to
have his counsel beard, and the iiirds wUl sav
it is a '^oofJ pica — no man ean any that tbt
Commons eier pleaded agfjun^t eontmel, Ike,
M docs not become their ^raJideur to debate
and aikocate affainst any ifentleman of the
biujy rolie. That la without precedent. I
mention liii^, <Vc — The Commoiis are con-
eerrjrd, and our nfifhts to ui ire as dear aa
l> ' v^ ' *W is to him ; and J more for Mon-
<l rierofit*
>,. ; .,.,;<u Ltf. I apree that we ahouM
not ilek r the cousidenitiun of this lofij^er Ihon
neccaatty mpiires*; bur m, \U ^an time, ham
the opinion of the &eci< . «; But what
will you do, in umic h* i , i,> iJh, ,„rr«.
ftity of an act of pnrliameui :* 1 L ,f j|
be voided, mu«t be judiciaily, or l- . ly s
but f would try th« Bfjit, to lh« tint ntao«.
IMet it, fke,
y\r. Poni Fidry. \ a^free that you t^fw ff^
5cc. till Monday^ The eoimi,iii»«f^Wreof opi.
itiou that iIh ' ' Mi
demur ; ui> ti«>
crf.nchidcd h ,, |,,ii ,„ ^^^^ ,,^^p^
plra, uute*t>^ „ to the conimry
^**"" ^^>*' ^** ^mttiTiKr with
In Ior»l a, (he Cwo-
•vould not a;^.^ u.,.. „,^ cofinaalt
yoii retcr thai and the iiiaaner to the
779] 1 JAMES U.
mittec, aud yoa med not trouble the House
farther.
Mr. Williams. When we first came, &c.
there was a debate whether jou would preicr
Uiis lord's trial before the five lords. If you
stay till you have a return from the committee,
]>aDby may be |iost|Mnied to the tive lords.
Danby has flcclan^d, '* Thai he will be con-
cluded by this pica." But says the party to
the demurrer, *' 1 will not be' bound by*^it."
t^ys justice Atkins, ** Tiie pica was delivered
by Uauby by woni of mouth ore tenui^ only,
and no writin^f." First, you ought to be satis-
fie<l whether Danby will be bound by it, and
be concluded by it ; if not, you do a vain thing* ;
else Danby w'ill walk in a circle aud he will
conjure still. Therefore I woukl make appli-
cation io tilt! Ixinis, &c.
Sir Robert Howard. There is nothing' before
you applicable to any debate, but the validity,
or invalidity, of the pardon ; and T believe that
may be now, without referring' it to tJie com-
mittee. In this case 1 would not lose a minute,
and I would let the lords know, tliat this an-
swer seems to )je ore tcnusj and may be denied
again by the same mouth that said it. What
advantages men propose to themselves by de-
lay, may be great ; therefore I would piTHH>?d
anon what is clearly liefore you. Fie desires
bis counsel may have leave to make it good ;
and it is as natural that his coun^i-l may descit
the plea airuin. Therefore f would send to
the lords, to know whether this be his plea, and
and that it may come undiT his hand, (and it is
a favour to him to know whether he will stand
upon his pardon, or any other plea,) and know
whetbiT he will make a categorical answer.
If Danby will stand by his trial, I would know
no more,* and ask no more, but whether Danby
will (-lead guilty, or not guilty ?
Mr. Sci/fmtur. The question is not now,
'* Wlu?thcr the pardon l»e i*'Ood, or the plea,"
but the question is, *' Whether this be a |>osi-
tive answer, which he will rely upon?" I
would not trouble you now, but that the honour
of the nation and our privileges are concerned
wiien this is delayed, and he may have time
to turn throe kingdoms into Aceldama — A little
alteration of the wonls may alter the sense.
But as we haTe bis answer, it is e\-asive and
uncertain, and makes it part plea, and part
pardon. This is so falhicious that we caimot
join issue u[)on it He asks of the Lords,
** That he may have counsel, &c" and that,
as to matter of law, is a just demand. But in
what manner is he to have it, not to ioin with
the Commons, but to inlbrm the Lords in mat-
ter of law, as to Uie pardon, &c. ? But you
come not there to capitulate with tlie counsel
at the lords bar, who plead for their fees. A
Jesuit was asked, whether he was a Jesuit, or
uof He said, <* That is not a question to be
answered, because it is not to be asked ;'* and
it is -not to be askeil, because not to be answer-
ad. Y<ou are well advised to ask, *< Whether
itirectly he will rely upon liis plea, or his par-
Procecdings agatMi Thomas Earl ofDanby^ [780
Mr. Vaughftn. Matter of reeord miut be
your ffuide. If the k>rds have recorded bii
plea, tnen it is fit for you to go upon it. Bol
if he insists upon lui pardoo, and tlie osort
says, '* He does insist upon hia pardon^" dm
he positively relies upon it, and inusts. Wt
shall never know what we hare to do, till jn
send to the lords.
Sir F. Winnington. I propose that he mj
be asked whether he will either stand by it.flr
wave it, fbr voa see Danbj will go no nrtlxr
than he is Jrircn. If we carry our dcmiVRr
to the lords, then you will sena to know wIk^
ther he will join in demurrer ; so, if you pleH^
tlie gentlemen of the Long Robe, in a qinilff
of an hour, will draw it up. We have hi pin,
and so may draw up the demurrer, and seniil
up to the lords, and stand to it.
Mr. Williams. If the ConnmoDs had a ob-
tain rule, &c. your sense might ffo by h ; hi
this is such an Ignis fatuus to follow— That
is some cunning man in his practice, that ha
advised this, and he is laying a trap for na
It is the ordinary course in Westmiiuler-nl|
upon a pardon oeing pleaded, the qutstiw ii
asked, *' Whether he will insist upon it?** U
now you are upon an impeachment, and Ihi-
by has pleaded, and the lords are judgei sf il
this. Therefore I beseech you, walk wsrih;
let him deal plainly with you, what he will •;
if you are satisfied that he rests upon tbii pk%
I would say no farther. The lords are js^
of their own methods; what is recordi^ui
not recording, they judge, and we crniDomdl
examine, and must be bound by what they «1
say. The lords were in doubt whctlierlUi
plea concluded him. The lords tell yoa wc
whether he is concluded or not, by it, butosly
what he says ore Unus. Take the niattera
before you, and you are in a safe way : Wb^
ther4)e is categorically concluded, and wh6
ther the lords Uke this to be conclusiye, if }N
take it that he is bound by it, then the M
u ill tell you no such thing, and they will ay
hereafter that it is not conclusive; tbereAif
send to the lords to be satisfied. Jf the M
say he is concluded, tlien you may safely ft^
ceed.
Sir Thomas Meres. I take his pai^on tohehii
plea, and his plea to be his pardon, and dM
you are at an end, and that he insists upon bil
pardon.
Mr. Powle. I do not wonder that lord Dubj
has taken this way, having so great a chai]p
against him, and so little to answer in his ovft
justification, that he has so proceeded. Bii
plea was put in five or six days ago. 1 mi
then of opinion that it was a good plea. Hii
pardon being put into the court, in parchoMnt,
oefore whicii he is to be judged, is a good re-
cord, and the lords only transmitted it to is^
Say we, * we will not surprize him in it, ul
* will not conclude him immediately.' Oslf
we, as an act of fiivonr of prosecnion, Aow
the fairness of our proceedings. lie tsluB te
or five days to advise, and now he says, he in-
sists on bis pardon. I aka it, that • pMt*
It not tied np to those fbrmolitiet, mode*
€i /vnmd^ i\m tb«i other court* of WesttniRfier
mrm* * To rdv opon liw pmrHoti/ or * insiat,^
tti«re is tio dimrenre ; Ihry ;»'-" "f *he tEanic
ilgnificfltrm. I thmk this far to
eowdiidc Kim a« tTtiifnIjIe. It ;d to the
Tordf , «^ in niof^il, be rony ^'▼c yon one or two
more r- v a . J \ r^ aoiiWfrs. I wiould tUcreibre senH
t« t; 1 give a rule of court tii ii^ ami so
jir<ii ii« were f^oncUidtii by iU
Mi. if ii/iaifw. >5e€ what a nooic yoa are
drawn in by demTtrrer. Yoii mnxt t»e boimH
tip by il^ by ihejud^iri ' ^ ! , fltid it
Riiintbe conci Olive to t t Bng-
bnd. i Uy the danger waoit- jmi. If the
Ijonis give jtfd^mexit affuinst you iim>n tie-
fii«nrr» you ean proceeif no fartlier* The Av-
miirrer ih [tintnty a coisittsiiini of the fact, and
AS Dually must oe tied up, so must yoa.
SjrT, iAiiknm, I «peak to order. Yuti
Kite ienl to ffae Lords lo idt : I stm[)ose about
ibe ftmeiadnienti% uf the llabens Corpus Bifli
^■gd the commitlM? htifi? perused ftje daaae
^^|Al die Lordf adited^ nod passed it vrilh srjme
HB^tioti, <^c. and accotdiogly sir Wilti&m
Fclleney reportcii it,
Mr, WiiiUim Hirrhard. IMbre yon htive any
CDii'" I ■ 1 ' " ' ' ,].| brtng* in a
bill V ; Ibr if you
brin^'' HI Ji iMiij Vi . Hit' t int i.^m: ' : r-
ruled the dmiuncr, thev i^'-ivc tl. ue
Im if they pnfii it. TJir ' ^ ' l-y
«xperieoce, kept KOinf !ie
tut year, t'^'^ "" ">'^'''~- •'■■ ir
onler, ^ J,
and ifkr ^ . -_^<tn
liA' ►'Jt, Tbert'lbre I
irtri ^' of the Lords too
mneh*
BIr. Wifdftm^. Ff It^rd Ddnb}' He acquitted
by f ' ^ucy thing
m ' uT. A man
nrast b< 'lie uiiy» for the
aaiweo^l unjust.
Mr. i^oriuc, II t\ u iii;»itfike, thnt it the
Lords pan» jiidement, iorti Umihy \s inune-
diately aequittcd. F*-^ -^ - hiwe an ioterpst in
thaljud*jinctit, m*' king-. The Com •
inuuireiiuiredfbrthi. j...^^«. < ^^< ♦•^' "^ 'h*^ Lords
tten Hull whidi they pronoti t^t lord
Ijltitoer (the precedent betoTL , When
you areruwl Omt the l^ords cannot give judg-
n\i to demand
fd, tile
aientof
; oi uitaioder
I the whole
' h more
ftoficd.
■■m
tnuni till ihif t'ouHfintJi comr
judtrmrnt,
Commons,
tiiCU! » :
irtf than wf
ai t..i^41B lull I <
[u*ij *-i
Mondiif^ May 5*
7Ar ftdjoumed Debate retumtd*
8ir Thomon Fttrycr, The law i» too haitl frtr
me to 9p«*ak to, I hail not the honour to Im
br«l to that profesiiion, but, with your lean*, f
shall ofl'er what I hare to say, and I hope the
elleit will b#* to rab»e our sjiirilf, I rpmrniSt r
(hdt the parliament has been aWn^
* A great, wise, and powei^bl roiv *
if by pleas and i^tinurrers, oter-r
tajrwters, the carl nf OtnbyW ♦'
your fingers, and lie becooj-
miuiy then I nm apt to )
fhoiig"ht, *a weak, a ehikii-sn, rum a kii rj
* cuuMcil/ If Danby put himsi'M^uptm ;i fair
trial, I wish lie niny weape, * -^ ' ^i .^^
after blood; but if this pardwi
will become of the safoty of the ., ..
If one, another may escape aifatn In
method, I diall lie scarce aWe to v ,
imce in London ; they lte$;in to laugh at me ftw
read^*, out of apprehcn*:ir(ti thnt a pardon^
stampefl by crcnfion, will ».*. I aoi
concerned fttr the honour c u^e, f dd ^
thmk, that, in the managemutt of this afhtiri
rhuiliy bus done what was never done bv any
r !L JihmkDaob ' I
I incellor. Vm-
t^rv. liu jinnijj, and says, • ht
* use tii it, unleHs false witnesses
* htm.' Now atWr b»ng*^'"'""
tii»n, Dauby waves »ll h%i ]
stands upon hts pardon^ *
* Hon'sc of Commons niU rtiigf^ up
* nejfscs against hi»n*' I wooUt svn
*i<ler whctlitT there be any wji
pardon, t am no lawyer, but l
opinion. If we cannot get off from tkim
I would rather vote to &ii still tfne j
larther-
Sir JoAn Ifrwley* * He is now
*■ sist upon his pardon, 9tc,* I ha
the word * maxsV is not eo poeitivr m eMnC^K.
strou^^t •erne tgeiMl hk
no mer le^ eonsiraoi
' reiv ttfNm it/ h bivl
genttemaii, •Ttei
* by bill/ ~ ^
murrer, and i
Sir HarUtnh f ^
lonipea^ s ^ ' ^^ '**'
windi ens ^^ -tss
*•« _
7%e firther cnosideraiion of this Detee ev
Ai^iirxied till Bfonday , the first liuaiiHM.
783]
1 JAMES II. Proceedings against Thamtu Earl ofDanbjf, [784
we all know, are the legal warraDts for passing
all pardons, liut there is another irregularity
io tnis pardon, Sec. past all cure. By the sta-
tute, there is a recipe, &c. and the pardon must
bear the same date with tlie recipe entered
now, and therefore it is void, having no date,
and so it can take no measure right. As for
the illegality of it, I have not yet heard any
tiling to alter my opinion. It has been sufn-
ciendy cleared to the House. Tliere are things
which the king cannot do, and that is what is
not consistent with the end of majesty and go-
vernment. A common nuisance the king can-
not pardon. The suit of the party in an appeal
of murder the king cannot pardon. But this
is of a higher nature than that which we call
* nuisance.' This pardon is * an universal
* grievance.' * Nocuinentum totius populi.' If
a great favourite, an oveivrown iavourite, be
too ^eat for Westminster- hall, and such a fa-
vourite gets the ear of his prince, by flattery
and insinuation ; and shall, upon the confidence
of that liberty witli the kuig, be emboldened,
and made so daring, that ne cares not what
counsel he gives the king, to please his humour
for the present ; and who will reOect on him ?
* for,' savs he, * here is my pardon.' if this
be admitted, that the kingcan grant par<Ions
thus, it is to no purpose to complain ; our
niouths are stop|ied with a pardon. I am of
opinion, that if this ]iardon had passed with the
regularities, yet it si^nifief« notJiing, though it
bsul all the formalities. This is tu the detri-
ment and prejudice of tlie whole nation, which
is not in the kins's power to pardon. There
are things out of the king^s power to command,
as things against the law of God, (and we ought
to obey Gwl rather than man) as U) do violence
to nature, to throw myself down a precipice, I
am not oblii^ed to do it-. Cominanus, not war-
rantt'd hy law, are not to he obeye<l. The king
is a man, and may he misled by counsel ; but
let tliem look to it that execute such com-
mands. When counsel give the king such
honest advice as is fit, all Tiill go well; but
when, by surrendering up a p!acc, all is well,
with a pardon. I say, it is not in the power of
the king to pardon an universal grievance.
Whoever ^ets such a pardon, I hope, will be
hanged, with the panlon about his neck.
Mr. Gurrozvay. 1 beg pardon, if I speak
now. I am not able to speak to point of law,
though I am satisficil that, take the Ibnualitics
of the pardon away, and I look upon it as no-
thing. It is the first of this nature, and with-
out precedent, that ever, an impeachment im-
pending from the House of (Commons, a (jardon
was granted, &c. If the I^ords over- rule the
demurrer, lord Dauby is quit ; and this is your
abort story. If you put all your stress upon
this demurrer, you taiEC a weak course. I am
of opinion that this is no answer from Danby ,
but an evasion of your prosecution. His pro-
testation and declaration of his innocence is
inot bis plea. I wouki therefore send to tlie
liOrds, that Danbv may put in a plea that he
Will ubidt hjf ^nd upon it I woukl charge him
with * imputing the scandal upon the kinc if
* the contents of the two letters to MrTSiDD-
* tagu,' for one article^ and fur another article,
* the obtaining his panlon Burreptitiously.' At
for the pardon, the ar|^iiieDts sgaint .it are
pleadable when he is tried. I would pnw.
cute this business immediately! that Vukj
majr answer what he will abide by.
Sir Tfumiat Clarget, This matter is of gmt
moment. Lord Mnby's plea is entered upis
record in the Lords* book. When he cane t*
his plea, he said, * He would insist npM hii
< pardon.' I would be satisfied, whether, ii
your demurrer, you may save to younelfe
the irregularity of this pardon. For oui^kl
know, all the lords in the Tower may dU
pardons. The king can do no rainisteniJ xL
The king could not seal this pardon himsdt
The chanceUor shoukl have told the king, wki
this pardon was sealed, « Sir, I cannot be pie-
^ sent ; do what you will with the seal ; I oa-
< not he by to see an illegal act dona Irf aw-
* nistcrial person.' I am weak in the law, kt
am convmced, by Giimstone's ar^umenti^ ^
If tliis be granted, then the Umg may do an-
nisterial act ; but it is fir that r^soa rii
Tliat which never has been done, csoaot k
legally' done. If it be on record that no wk
pai-dou has been granted, none such can be. I
submit what I have said about the demuns;
(Sec. saving the illegality of the pardos, kc
But if not tliat way, then I would gobyU,
and so damn all such pardons for the fatoiv.
Sir HarboUle Grimstone. I will only fpak
to the manner and way of your proceemog. I
will tell you my opinion. We need noKif
these savings, as is moved : Why shonM «e
abridge ourselves any way? Dut go'u('Mibe
lonis with the whole matter, with the best ao-
tUority you have for your reasons, in rwirf
both to king and people, and^'ou must taieii
for granted, that all those crimea lordDa^
stands charged with, are <!onfessed by la
pleading his pai-don \ as his raisings an am;,
and truckling with the French kiufp for mooff
to maintain this plot, &c. And then you m
allege the want of date of the recipe, isl
then, if the lonls adhere to the opinioo, ibA
the pardon is a i|;ood pardon, Uie last reaoitis
by bill to void it. But I do not believe (he
lords will be of opinion that it is a ii^ood pv-
don, and it is not advisable for Danbv to ^
his life upou it. I would have the lords deflisi
to appoint a day, &c. and gentlemen of the ka^
robe will provide themselves against that tiae.
Mr. P(Hp/e. As to my own particular, I
think the pardon is not good i hut the qno-
tion is not that now, but what way yon will
proceed to vacate it. The reasons are ai
strong to make the pardon void, that tbef
need not be farther labouretl. Gentlemen seem
to be against loss of time, and this ofsendisg
to the lords will losie more. I say, that Daobr
will •< Insist" *' Rely" upon his iiacdon is i&
one. It remains only to consider whether M
will join in demurrer, or proceed by Bill sfil-
tainder. As for the question bdhre yon
4
y•^^J«•
^
Jbr High Treason,
htire Iteftrd aH IhAtctn be imiH in ilefencGof the
'don^ and tUen ii iv i ' > ^ i He*
ulidti. larasDinuti i^ii,
t little can be said im a , i>ul ti. ii«.«^ ,u,i con-
with vou honour to come to any deierttii-
lion, lill vou hnvf» )»#?«ri| nil ajTfinvi jf The
CtinmiotM \\<ll md ufHtirwthje i , lu
roiiie iiHJ |»l* u<l v^illi coiiii-scl at i t>ar,
^c. 1 II lord 8lniHbifi'i c»<»e, the Commons did
iiiH ti't^ue pro mid run mi\i hli countrtd, ^c,
but they were hetrd what thry had to say ;
^vhich will be proper, when you coin c with
your ruHCe (o tho lonis bar, lo dera^ind judgf-
. meni atraiust loni Dftiihy
Hvry *' fvrrf. The eurl of Danby has
lib ^' 'in kint; and this Houiie ; he
(II a [M<jit;st&tiui> ; which, in e^ictf is a
ition of hiiri«i(*ir^ and k diversion ot hii^
4 ...i.fi i\,f. l;.w^ He has chajTi^d It on
tJ : accessary for^ liim to do
it 1: :. L leJI a story, upon whic-h
I be taken, in but a ^uuritth, and no
^'i I For putt in:{ the Hlume tha:i upon
the kirijf , he deserve*: as much puiu«hincnt ft*
be cun do. Tart of the report from the Lord
CliiUH'vtfor, ut>otit f»t»laming tlie partloo, S:c*
was, ** That be wouhl not mnkfe tise of It, but
case of suboroafioti a^uiost himi 5cc/^
that« he lays en iiiipu tattoo upini you — To
la jiardoti/ under prcli^nce that he will uot
make use ot ir, but in case of !$iiliornalion, 6cc.
iod yet tit.' docs for hi« ptea ! Ak for uhat h
'leifgcdf * tliata pardon, for want of areci^teg.
I void ;■ in Flowd*fi*s Comuientaiiv^lfim*eis '
a COM! of no recipff and yet the nuriloti was
irood— The law sets the degrees ot pardons to
Ji<»!d fined bv» that it in;iy nut be had clan*
(It luitly, and tlie king- deceived in it. A man
thai IS to make defence^ S<c, wilt do itatse-
kbiul ward&. Lord Danby has Icajied over all
iornialities ; and this ii as a flaw. To the roatn
of it, certuiuly it is a strange pardon, that in
so nituiv hu}idr«>d years Mas never yet done be-
fore— V\ lien not only the wifety of the king,
but tlie Commons lives, and religion, and ui
may be in danger by it ! The tive hjrds in the
Tower may have such pardoos, by the same
ren)i4m, and what then beeome^ of all yourfi-
l>ertie«, 4cc, ? Daub}' mtslends the king, in
4loiog all the ills he is charged %vith, and gets u
pardon lor ihem, when he U»s done — He
lliinks, surely, tlie thing is so. Gn^at persons,
loo great Ibr the law, and who have done ills
by virtue of an esforbitaul power, from time to
time, ioiirt nuotie*^ by such a pardon, may
defeat nil calliiig them to account. There is
no tihiinnh U* the impeachment of thtj House
«l '' ' ' id it would be
^ iher gi^naral
Vw ' ' 'rtiiir*
dritit'. niej
A. D, 1678—1685.
vrtthout eonlradiction. I make btit «n essajr^
and am a little doubtful in the matter. To {iro<
ceeil by demurrer i"* h little dtmgcnms. And
who simll give judgment in the denuiiter f 1
think you were well moved to make a replica-
tion tiriiiiH plea ; thp 1.^- -int. I»f Imv jr^t ugainat
ftkuowulaw, attd 1 Lion to the
king, and of great Mil only ti>
Danby, but lo all gr rljors— Aqd
withal, I would allege -h, not by
Ibrinal way of demurrer, V\ hai is chargcfJ
against him, amongst other thiuga, is, ^gelling
• a vast estate," You gi^e nn>ui^y to relieve the
kingdom, and if it falls out thnt he ha** diveri««l
the money to himself, or his friemts, it is ano-
ther article, aiul if yjiui proceeil hUigly by de*
murrer» you may tirejudice yourselves. But
if this be a gmid pardon, parliaments are to littlo
purpose. They will get poiver to do mischief,
and heal it by a pardon, \%Ui^n it is done. Again
1 say he has bestowed the money that the par-
liameut has given, aud we must, by this par-
don, give more money for him to devour. 8om«
things the king caiinut pardon ; as a nusatio
whilst actually comphiinwl of The man is ii
dieieil ; there is not only a fine to the kiu^
{dUtrirtgaiur ad rr$pondtndum) hut repanilioti
lo the (leopte. The king cannot jmrdon a ne»
cognisance jbr the peace j it is the subjects in-
ter^t to be preserved. How fhr thisisapplicnbla
to the case before )0U, J have humbly otfered
my opioiOQ.
Sk Francu W'tnningten* The validity of lh»
pardon, and what is the best way for y<Hi to
uroceed in, is the sulijeetof the present debate*
I am one of those that will not reduce the '
and rights of parliament to school divinity,
arguments of itibtlety, and chmj elude
If we come not clearly t4> it, but divffiifi
the point, we may hazaiil the muioo
as lord Danby has done. WitUool il
versy the pardon is void. I iMI
former arguments only, I aliaStaWii
ed that Danby rtlies upon bii |«
be repeals his plea.) aoipe tbai
said, as In the formality ^ llii*
some gentlemen would imMm^A
u man^s hie — *^ lmncUimM9timm
his pardon, Vc. ainta gi
l*e, the ktu;; knowt BUt^
the House of C^nuBmL"
else. But J will wstr 1
validity of tbe fante
tlie king baa k^ tmtm
there tlw ki^ mpr* fr-^ssai^^
a utaii ifofon^ ^ i^
ohiiantt.
r :tm a
SVini^ my i 1 dfi not deny ibgi, m
oae casies i ciin be jamed, v|«s ^r
piatter is bud upon ib« king^ md m aiMHi
VOL. XL •
T%a •AW'
i E
1 JAMES Ii; Proceedings against Thomas Earl of Danhy^ [788
Danby has committed a greater crime id pro-
curiDg this panlon and he is as ifuiUv of {m-
curiiig'it, as of* all the rent of his other greit
crimes. But to make the lords sensible of il,
as well as the people, I iroald go up to tixa
iu a bo<lv, &c
Mr. Aampden* You have been well iboval
the consctiuences of such a pardon* and byjo-
ingf away with such crimes unpunished, two
{^rtat tlnng;s \\\\\ he lost, accusing great dni,
and accounting ibr money. I am not svQ
vcrsc<l in retHinU, hut in the last kill's time (I
crave leave to read the wurds out of the prim)
ill his aiiSH er to the parliament's nineteen pn-
pobitions, the state of the nation, &c. thegQ-
vernmcnt is there stated, as to peace and tw,
and pardons, &c. After the enumerating Us
puiver of pardoning and other prerogative^
* Tiiat a prince may not make use of his Ugb
< and perpetual power to the hurt of those -fer
* wliosc gorMl he hath it, and ina||p use of tk
' name of public necessity, fur the |j|^ (MT )k
< private favourites and followers, to ne dehi-
< ment of his people.* If afker all thii,l
pardon mav come, &c. to what purpose iial
this stated by the last king ?
Olr. Vaughan. This pardon is Ufipsinst tm-
mon reason, the government, and AesilctTtf
the crown. I say, it is against oomnion in-
son, for the snpport of the government is fiw
rewards and punishments. The power rf
pardon from the king proceeds not fnmi isf
positive law, but from the reascm of the {•-
Ternment. If once it can be made ose an
interpose betwixt the greatest crimes and ps-
nishments, no man can say but the oevi
must expect the greatest ruin inn^ikk.
Suppose the kin^ pardons all mmes ht tn
years— They will fly not then to laws, bat to
nature, to defend themselves, and so the go-
vernment will fall. Bv t^ie atatnteof R S,
the kiu(|f could not pardon any thing agiist
his coronation oath. Treason was not crib*
merated in that oath, because it was not so-
posed that the kin<r would pardon it. Itif ne
subjects interest that the Vtng cannot pardeoi
recosi^iizauce of the peace, but the party ukj
renounce it. If therefore you consnier, w
what use can the laws be, if such pardons k
good, &c.? IIow odious are they to tke||o-
vcrnmcnt, the safety of the king, and agfltft
law ! And therefore I am aeainst it, &c. We
may q^x) up to the lords, and shew the bn-
lidi'ty of this pardon, aud the wa^r of piucuiisg
it. In the late duke of Buckingham's in-
poachmcnt, the king^ might as %rell haretb-
viated it by a pardon ; but he got that psrib-
ment dissiilvcd, and put himself intothestir-
chamber, to be rather in the force of jutrior.
Several then moved, " not to put in the ir-
regularity of obtaining the pardon, but tir in-
sist upon the illegality of the pardon.
Colonel Titus. I would not have Ton tar,
**The pardon is irr^^hr'," for Ibw^thlrt
reason ; it will be some tepQaAkBtlMl ftm
legal. .
\
787.1
' Danhy venture on this offence, the same has
pardoned him, and 1 know no farther use of
])ar1ianK'nts, than to {;five money when it is
asked, if the king has no interest iu the suit,
and lie no party to it, and gmuLs a pardon, &c.
there is au end of 3-our constitution. I dare not
ofi'er that vwlence to my own reason, as to say,
that this is.a jvoodpardon. Serjeant May nard did
not innke a conclusive ar^rumcnt, but I will
con<rIu(Ic, whether the serjennt will, or no. In
Littleton, Sco. it is an ar<;^unient, * That the
' thini^ is not lawful, bccauscMt was never prac-
• tistd' — In law, not sufferable. But to dis-
tinguish it^lt is good in way of plea, but to
void it by bill — But that is a reason why il-
legal ; and never found in a former ai^e, hut
is so. I will take the boldness to make con-
clusions from tlic seijeant's reasons — To say
that this is no demurrer, &c. that seems ad-
visable ; there is no occasion to plead this,
for it was never done before— Now, whether
the House of Commons shall go up to the
lords, and say, not as in the common form of
way oi' demurring to a bond, but all the Com-
mons to say, this pardon is a monstrous thing,
and ou^ht not to be ? I cannot say there was
ever any precedent for demurrer, I>ecause there
was never any occasion for it — What will you
rej»ly u]»on all Danby's protestation ? — He
will say, that is not traversable— But should it
fall out, this pardon ought not to be allowed —
It looks bijjger than a demurrer — But if the
lords say, that the panlon is good in law, what
have you to do ? 'riien you Tia% e recourse to a
Legislative Bill. Because he has so confessed
it, there is no occasion for ns to prove it. I
cannot blame that lord, if his life be at stake,
for niakiii<; as good a shift as he can. Life is
sweet, and a man will fence as long as he can
for it — In the preface of a bill may be put,
• If siu'h a pardon Iu* allowed, the govem-
• ment of Ei:;rl;»nd will be destroyed, and the
• Connuons of l-lnj^land cannot bo relieved from
• the cxorbilanci's of great men.* — And we
shall have arpfuments eiiou^-h to put into the
fac:e of that hili ; and if the lords have a mind
to save thf» kintjdom. as well as we, thoy will
{lass it. l*i-ay let us ijo roinidly to work, and
lave no more tricks put upon us, as have beeu
for these six weeks.
St'rjeruit Maynurif. I told yon, * I could
• not deliver my o|iinion posiiivelv, without
• fart hi.T considers ion, &c.' Winniiigton has
concluded for me, but one of his arguments is
weak, viz. * That there is no precedent that it
• was ever done before.'
Sir Francis Winninglon, I have learned
wore from the learncMrserjcant tlian any man.
"We both aurree, though in different ways, and
I ai^ree with him, vSee.
Mr. WilUnms. It is incidental to our profes-
sion llij't wc love to spare a little. I perfectly
agree wiih Winnington in his argument. . One
question i-;, « Whcthej- thefardon be ilk'gjili'^
And another, « How the pwdon was oblaineil V
There may be reason to void it by Scire Jaciat.
J think it is not safe mki the pardon continae.
T89] /or High TraisoK*
Mj". S(Kh€veffM, If you go up lo ilie lardB,
^6C. ilsU ntr>rin*J>(l f Thmt vnii \i ill riiil I if \tiiir
eoilR. I lie
Ixsjoiued ^. .^^ . ^ ;■■' ^ ;,-....-:,, .'icr
yoii u ill jjo 1IJ1 ticturc jou ptiss juciifinent thai
tbe purdoQ ji tlti'^'al ; and next^ wheth<?r )Oii
Hilj go up before v'^i ^how the LorJs joar
reasons viliy it i«'iHeipil? At\i\ if the Lords
dl/Tcur from voti, how \\m yoti then argue it ? I
f^flfer then 'ihiii the iiueslion maV he, * That
Mlu ■. ' ^ • ■'■ _ ' : '" ' ,: T * "
VX
to ii^t^ iiii ^im jit--.^ vuurjuiu^ujtfiU
ih;i _.iL
^.. - *.ii CorM mores, thtit ihtfiuestion
may W* * That it UilU'gal, and vuiJ nj law/
To which
Colonel Tiitit repfieil, Th;)t is us much qm
to rav» • It Is Ic^pil and illeijiiL*
^' vr. I have vat s(iU all this day*
aU"' nl very many :;<Miil ur^'umeiiu.
I'' : i»ur po^ver or authonty, hut
viji' Mir method. 1 IuHt ag^ree to
got ii In. (Is Uar In Uetnund jui%rLieutiD
^^o.s^ -n,:!., 5k:c. hut I know not the meat)*
iti^ ot Uic S^i&akt'r's going with the mace to
th«s Liirds Bur. You ^ay, * you come to dc-
• roaoditnIf^mentoC that which you tliink is do
* good [mi'don in law.' inh**y ag^riv iiot^ 4cc.
thill ^ '"» 'vill *-nii>e lej tell thcru what your rea»
•01 nf»t a gtMxl pardoir.
' t ^ uu are i>»it in a good me-
Ihod. Fut H Illy, * That the pardon
' ia dii'jpil/ i<'[ atioa ut your own intuh
faction,
SiHT* €i(trge$. The Speaker came into the
Lords flouse with the maco decllntdf and
a^kt^d jod^nicut ugaiuat the cart of Middlesejc,
Sf .1 -
Iji the 18tb of James, in tht
^' ? '• It to the
y were
... up to de-
li ir maUci2 to
1 down.
^ \it I he Lords
H< ITiuistv you
mi..
^ >ur, not
only i' II p» iMii tti 'irit
may r 'le he wtl. Led
^'I'i Yuu j.uy, Uuuuy'si par*
•|«>i h1 you art' not |irepuri»il with
ff2a!^flU?i Hi
bnlif; and i
UJin- ■■• f
A.D. 157S— 1685.
[7£
' tDand it ;' and ti
||f*l(>3ki:i:l It Itiit it 1.
wl.
11.
wr did not
:d
^ J 4 draw ri'a*
I W« may iil oil tiic ^.u^uiAcr. Whfaa you
carry up the vote, the lords will see the reasons
of it, as soon aji we ha»^e, 5jc.
8jr Thamai Lcc. At a eohfVrence, if the lordsi.
requVe vrnjr T<.ii«irui*{, it will he more for your,
advaiii \u then, and that Dimliy*s^ [
couusp , 1, &c. that they may huve^
no advatiidige ot yoar reasons, and reserve your
reax4ins till the lonis shall diuy y<*0 judgment,
Afc. Let us havcthii very words wriitendown,
that you, Mr, J^peiiker, are to didlvcsr at thcj :
' ' ' y wort(, that it may comport/
tlic individual
i lie » .M UU1 read. ^^^^
Sir ir. CovrniT^. 1;
wonts that you inteiul . .
har, if I order to ihat^ | si
that the '^eatlt'uun ot the L , , ^ j
tlidr judgmrnts upon. I couieive, it it* to de-
monii juMice uEfsuust tlir f;^r!of Dauby; hul*"^
th«i l3?«t thing to diior iieut. t woulif
not hare you put to hi i.. agttiustl>anby,
lor an atlergume.
Sir U, Grimitone* It t« more jprotker lo de-
mand •*jud)fment** than ** justice," against
Danby. We have voted the pardon illegal andf
void ; I would therefore put the vote iqIm form,'
as \ou wiil df'li^er it.
bir F. U' " ' ' ' T We arc to demand judg«
meat, ^Stc. i n^ lords should not expect ^
us to come ..u,. ^.. ■ v that this is avoid pardoni. j
aud demand justice U|>on the impeachmenlr
Sir John Trevor, " Justice'* and ** judg-
ment" are two things ; they are not lermt'
coufertible. Justice ' convertitur in judicium^
— To demand jij' a\ He pleaditig hi^ I
pardon, you mu I judgment upon hit
own CHniesjM*JU of his chaise, for now he ii
past hb trial.
A Committee drew up a form of word% for
the Hpcaker to deliver at the Lords bar, aa fol*» 1
lowi !
♦* pari
*' mrir
** nan
*' ag I
♦* iiif]'
**t»f 1
** aoil .
** aPiirdunj \}l
** ceivM to he i
,, citizens, and burgesses, fo
nihil <1 rire come up to do-
owti oames, and tht «
iifUonH of Enijlao*^
',\% rarl of Danhy, who ^landa
themi hefor»* y mr !nnfphips»
nOM, ATld f
!tor*?, to n I i
jiKtgtijetit (jI yt^u !otiji*iiijk|
iiNL-r, wiih the House, ^r-
of Lords and diipmided
A Mei^a^e from tluK tionU, by M:
4f liave
afi^tbe carl
'' make g«' ^ , tliat the? Lord
^* ftidvi'd^ til J Ljtfda in the T^wrr ahall
«« be brouj^Ul w i^tir |pk^ ujao^ ibc; tm^»eactk-
irl ol Danbj^ ^w '
rds have re » ^
791] 1 JAMES IL Proceedings agaitut Thomas Earl ofDanhy^ [792
left, how the parliameDt went by BiU of AtUb-i
der ; and the revokinjr cbiue tekci m#t]r aH
thoae proceedingps. Tbe cec«»id taken out if
tlie lords jniirnal, and that way ucver to be
used in parliament, ft was so far oi^ in
another case, (that of the earl of ClarendoB.)
that it bei'aine a questioo, whetlier a {Mr ac-
cused of trt asiou, stiuuhlbe iro|friioned w^dioal
spcK'ial matter. That being tbe cyae, thit
statute of the repeal, &c. ought to be read.
ftfr. Wogan. On tbe concluaion of M
Stratfont's trial, a point of law did ariie abort
accumulative treason, and the lords wooU M
judge hiiu upon it ; and so the Commonswidh
drew, &c. and then they brought up a Bill of
Attainder. It is below the dignity of iheHoon
for their members to argue whh lord Danby*!
couuscl ; but it is convenient that some moi-
bcre do go down to infonn tbenuelres what lb
counsel will say, as to the pardooy &c. Ik
statute of R. % was made, that tbe lung sbooU
not be deceived in any grant ; that aM pante
and other {grants, should paaa such banditti!
offices, ^c. I suppose that lord Hukr^
counsel will justify tbe JVbn obstante m m
pardon, &«;. Neszt, whether a pardon saha^
quent to an impeachment is pleadable, and tk
*■ ment against them, on this day sevenniferht ;
** and that tbe lords have appointed an Address
*' to his luajosty, for naming a Lord High-
•• Steward, in the case of the earl of Danby,
<* and the other five Lords ; anil that the same
** shall be in Westminster Hall."
Debate thereon.*
Sir Thomas Lee. How your Committee should
behave tlicniselves, at lord Dauby's plea, and
what is to be done, I would have the Committee
consider ; and thai to-morrow you would rise
timely, tluit the Conbmittee of' Secrecy may
have live or six honrs to prepare for the Trial.
They will have time little enough.
Mr. Su'j/njin. Consideri this business cannot
adniii any liclay. Tu-day is Wednesday, and
\ou liu\ e but ii short time to prepare for lord
Ilanby, \'c. The gentlemen of the Robe are
not here : I would send the Mace for them to
the bars, and when they are come, fall upon the
consideration of lord Dauby's Plea, upon what
the lords have sent you, and consider what you
are to do.
The Serjeant was sent to all the four Bars to
command the attendance of the members of the
Long E^>be.f
Mr. Poicie. This case M'ill govern itself by
the precedents of former times. It is said,
* The precedent of lord Stratford's attainder is
* abolisbed, and what relates to it, &c.'. But
in that case, after the proofs were heard at the
bar, he desired that counsel mi^ht be heard as
to matter of treason. Tbe Commons were
only present, not as pleaders, and all the House
Mas there. I think they made a Kte|) too far in
it. I would ha\e the Long: Kobe heard.
Sir Thomas Charges. In lord Strafford's
cise, yon had manog^ers of the impeachment,
and he had counsel at the end of his trial, not
at the lie<j^inuiuyf. The whole House went up
to demand Judgment against the earl of
Danby, and if counsel come to justify the vali-
dity of this pardon, f would ad\iseyouto send
nobfMly at all to hear it : I would laae no notice
of it ; and pray hear the opinion of the Robe.
CoUmel Birch. J know that proviso in the
bill of attainder of lord Strafford, * That it shall
* not be brouglitinto example, &c.' is that the
judifes shall have no power in declaratory
treason, !kc. And it is generally mistaken, as
if tbe |Mi\ver of purliauient, in declaratory trea-
si>n, was taken away by that Proviso. I de-
sire, if that i>e declaratory as to the jud^j^es only,
that Uiat preeeilent may be elenretl up to you.
Mr. Siti/nJiH. It is not that Proviso that is
supposed, u hicli takes away that power from
pai liauient, 4c e. ; but that statute you made iu
reference to restoring the earl of Stafford, in
repealinyfthe attainder, &c. that is considerable.
In that ttiere is a recital of the whole proceed-
hi;; uirainst him, kf Articles of Impeachment ;
bow far that prodfeded ; aM.when that was
P'-^.
* Grev*8 Debates^]. tf^
/ Tlutf IS not menHled in the Journal.
199.
kin/jf bv a pardon can prevent the matter, &e.
and Whether there be such an interett in tin
Commons, that the king oibiioc pardon, p»-
dentelite?
Mr. Swynfin. First, take tbe lordi meMfC
into consideration ; but if, upoi^^at ddnhh
any thingf arises, then it is needful to raid ihe
act of re|»eal of lonl Straflbrd'aattaimler
Mr. Fowle. I would have that act jail, H
clear gentlemen's minds. I see notfain^'iathii
act but that you may goby Bill of Attainder.
I'he Act was read, 13 Cbar. 2 chap. 89-
Serjeant Maifnard. The lord high ftemnl
is not only in Uanby's case, but tbe five Imi^
&c. I imderstand not what the lords mein hj
a Hijrh Steward.* He may have a nanie,Wt
not office. There are but two w'ays of tnl a
treason or felony : either the person is indietti
and tryed by a jury, or if he be too bigb far tbe
ordinary course of law, by impeachment. Btt
in the ordinary course of tryal of a peer, the
lord high stewanl appoints what lords shall bt
tryers, as many as he pleases above tbe bob-
her of twelve ; but this quite cGflTera whea a
lord is tryed bv the whole body of peeis is
parliament. The higli steward is not Ikm
judge in matters of law, buterery fieer paitica-
lorly. In pra/nunire the lords are tryed by
themselves, and they can have no challcngi^
and though three or four of his eoeinica wtfc
named of the jury, if that conki be snppMd,
he cau have no challenge. A comnaoosr mf
challci ge thirty-five at common law.
* «^ The uneasiness which tb^
showed on this occasioD, amte ftomiaipalM#
that the lords meant tberebj In kdqftTI jpS
king's breast to pot a step totdlllieir jiiH|iifd
ings by refusing, or ililijiiiy t» ^ . e
k>rditewnrd.» BtH^./^.
^
■■'i.
ft
(3] for High Trmson.
KKf^not tlie mcD percinptot-ily, but the lii^h
Irani run admit no ehollco^, if the lont lo
tryeil hate ever go gftotl e& OAiii^e U» Fihriv.
it wUvit I drive at, «*» that, in the onllnirv
prorf?c«liii^5 of thf. hnlji, ihc hi;j:b sti'waril is
111 thf* nauirc of a jtidg^e. A man intltcietl at
the Kidg'tt- bench rnnnot |5letiH iKii guilty, if
he hme ji pitriioii, hut tiiov f»h ml his pardoO'
The loni» r.in hhvv^ no choltenife, hc^^titi^^ the
h.in»nagt^ »nd peerage of the reahn iire llieir
ir^em, I h»vi' observed, th&t ivhon lords have
btfntryerl, ihr!5tcwftr«l of the kiti|?*ahousehokl
^^betii ' ' ' I'-NoMT the [onb
|Hf e all ^ se of loni Dauby
ihe five loid^N is f^rt Ui fie tii&fL but in tbttt of
hni Datiby ibere is no fact to be trieiJ, for he
pleads his panloih VM\ him d hi^h steward,
or what you pleasr. Ihii ihe bnh try h»rd
Don by. Nowtlieri what you Rhalldo
in thiif ca^e ? It i^ ut never happt^ned
before. \ man que* liot i ud f« h- su c 1 1 h igh cri m es
never plrndcd a pardon ; the thing was never
dooe, and therctore 1 cannot (ellyrou what has
been doDc. In lord Ktriffnrrrii nnpeachment^
tweUe pcrsont wei ' >i' ihc secret com-
mittee ; they exa i > bole business ; it
IS now 39 'yf*nn s»i;'v i tiey desired 8*m»c
lif the long* robe Ui he addeil ; thereupon I waa
added tx) ptepap^jB chaigp, and make g:oad
Hie evidence. aJWiu is a worthy gentleman
now of the Jwfce (if)' Charles HuitMird.) who
WM ane iw9^ie twelve ; he may inform yon
iftllelber ahi^hst«p»rd waanamed ; be pleased
to hear him, !% Anthony Irby was of the
fioutttiben alao.
^^^^MarU* Hurlord, He 9i^ not then \V\%\i
^^^^Fm in other cases, for here all the peers
fnifal give their jfid^nieni^ ; tbi-rc w as ** ir«iby ,
«r not iraiKy ?** But here, in ford Danby*» case
H no such thing^ ; he put< alt upon the kin|f.
Tliia Mhnle ihui^ \h %n point of pardon 1
wiJ[ jierve the House will* the be»t iufuroiation
1 cun.
7/..V I ...,->— 'r:it lord Straf-
i*? Site ward of
i. ,, , . .^, . u uard tbcu.
fa^nafd, I know not what^e
itiv^h htrward ornot, butbc was
iTWtn lo he«r th** evidence,
' ifurffiird, IVIaynanl baa told you
tmc; he wtt« not hi^h *tc-wurd to name twelve
*, but only lo bold iht* roart of peifra below
nin«<U'r halt. The hu'd hi;;!* Meivard,
ftrufl^nrtrs r.aae^ was tfuasi u chairman.
s;.- fr.
full parliament, a lord stcwarti then is but tit
the nature of a pmloculor. lu vacancy of
purliumentf upon the trud ot a peer, a lord
slevFard is appointed by the king^ ; but in boih
those casfs, tlicy are no more judg^ than the
rest of the' peers 5 and methiuks it is not worth
your curiosity to debate it. On the contending
U, as to Danby, 1 will offer you my thoug'hts*
4s I have been always sensible of tluii pardon,
I Khali neier liave any comfort lo come to par-
liament iij^iiin, it' that be a tfood pardon. Sow
ibe ^tiesii^n is, what method you will take,
that yni may not be prejudiced to your cau&e.
Dantt\ put** his lite upon hts pardon. For his
coun<«el to apfiear for hin» to justify hit pardon,
that is not irregular at all ; that in a rii^^ht due
to the prisoner ; but the «)ue^tion is, bow the
Commonii must demean themselves, whilst the
counsel is to be heard ? I apprehend tliHt
Danby will com*' to the Lorils bar, and hare
bis pardou argued, and the Comrnooa not be
present at nil. And upon debate of ooiinsel,
either the Lords will aJUiw it, or if they eon-
reive it doubtful, they will send you word ;
but you are uot to advocate it with the cooosel.
The Lords' Message tells you, • That they.
» have appointed Westminster- hall, 5tc,* But
the Lords sitting, being not local, they may
go from one room to another, &c. but J am
utterly a^c^iust the House being there. Iti*
lonl Btraflfurd's case, the Commons were pre-
sent, because they were to make good their
charjjt* ; but in lJanby*s casse, here ts nothing
but a question of law about the pardon. Yuu
mMf gn and hear the counsel's argument^r as^
ipnte gentlemeu. If their aigututfltis stick-
not with the Lords, you will hear fto more of
rlveui ; it otherwise, they will send them yon^l
down— It is not for us to debate tl^rir proceed-
ings, but where it in prejudicial to our cause*
If they doubt the Lords will give no judg*
meot, and ibey will communicate the argu-
ments to you, and here it comes u^tuiikily tor
you to argue against the pardon,
Mr. i>ach€vcr€li. 1 desire the case may he a
little opeoed. I fear you will fmd tnuuc dif-
ference with t]n' T>i*rdiy about llu loiil >tl» uard,
ate. 1 ^^'•
1k>te lordhu
Steward in caxt
House of Com u I
uio bow, if thei
conf<i|i' with t^e I
Lui^s no i louse ^
conrerrlng, ih(^y u^"'
l>c-
I ord
>> the I
.bow
^void, yuu can i
f'fuirt, and the
gel It out of parti|Vhk|
795}
1 JAMES II. Proceedings against Thomas Earl ofDanhy^ [T9ft
hereditary in the duke of Lancaster. 1 IX. 2,
an arcbMshop of* Canterbury >va8 tried, and
there was no Lord Steward. But in Impeach-
meats the only case is in lord Straflbrd ; hut
the ill consi><iuencrs were not theo objecte<l, tor
he was not properly as a Lord Steward, but
they sat as a House of Lords, and tliey spoke
* My Lords,' wlien our Managers gave it tbeir
appellation; wbereas the I^rd Steward is
called * his Grace/ when applied to. That
allows plainly, that they sit as a House of
Lords, and not as a court. But be he Steward,
or what he wiU, if the Lords be under the no-
tion of a House of IH^era, there is no encou-
ragement by it to try an Impeachment out of
parliament. Now, the proper question is, wliat
inosKa)<[e is proper for you to return to the
Lords ? I think it may be, ' That you will at-
< tend the Lords, to make good your charge
* against the five Lords.' But you ought not,
as a Iloose, by your appointment, to be there,
to hear the counsel for lonl Dauby 'a pardon.
Having odcg iiassed your judgment, it would
be too precipitate to go to argue. I would sig-
nify to the Lords, *■ That you would not be
* present by a Committee, nor the House.' h
is an improper course in the Lords, to go to
Westminster- hall to hear a pardon argued.
Whenever we go there, we treat with fliero,
and speak to them, as a House of Lords, and
DOt as a Court of Judicature. The Lords have
appointed a day for the trial of the five Lords,
which you may pre|>are for, but as to lord
Danby, &c. it is not fit that you should be pre-
•ent by yourselves or others.
Mr. VmuMhan. i am against your gcnng,
when lord Danby appears, for another reason.
You go to hear your own vote arraigned be-
ibre your iaces, u'nd 1 would not be he that
should be a counsel for lord Danby to do it.
Mr. Paul Foley. In the case of Weston,
there was no Ciianccllor in U. 2. If he was a
bishop, he coidd not be present ; but it ap-
gears by the Roils, that there was no Lord
teward appointtMl by the King, but by the
Lords. Now whether we be present, or not, I
challenge any man to show me any impeach-
nient trie«1, and not/in fult parliament. That
being so, how can any man have a pardon
pleaded, and we not there ?
Sir 1\ Winningion. With your leave, I will
speak one word more. The loiiiearhuicrit xa
in the name of nil tiie Ciuumons of England,
and they aic all parties to it. The lairds, by
aasignini^ Danhy counsel, are counsel against
themselves. L:ine, the Aitorney (icncral, %vns
allowed to be at lord Sivatrorirs elbow ; hut I
woul.l ha\e a prccttdcnt showed me, whenever,
a charge hfin^r conli^NSiid, any comuioiier came
to ar^uo us out of the case. 1 desire to know,
whether, if the lyjrds do assign cmnmoners of
counsel lor the prisoner (Dauby) those coin-
tnitners .ire not {lartit-H ? The JmUft^s an* iiiiiif-
feremly to declare the faftw ; so are the liords ;
and 1 ItHik upon it as fiiigh matter, for ccuii-
moners to be of counsel in this case. If the
Judgies' ojunioiis are aikiidy tbwe it is
sary for you to be in full parliament, tbat
the whole Commons may soe rij^lii done by
them.
Sir ir. Coventry. I shall not medille with
points of law. I heard it said, * That coun-
* sel ought not to appear, because they arecon-
* moners, but that tlie judges may argite this
* |iardon, &C.' But they are coinmooen, as
well as all the rest of the counsel. A conunoncr
may be impeached by comoioners, and there*
fi^re in favour of life, f would not have thii^
restrained. If the judges be in purgatory, a
middle state betwixt Lords and Com moos, I
never heard tbat before. In the Lords Hoose
the Judges cannot open their mouths, but bj
couuuand of the Lords ; and it is but just, thit
Danby should have somebody also to plead (Sw
him. It is fit to consider what part you vil
take in this matter, if we are sent there, nei-
ther as a House, nor a Committee, nor raaai-
gers, and if Uiw be ai^ued there, and only os
Danby 's side, where shall the Commoitt h
heard to argue ? When we took exceptioosoalj
at the place that lord Mordaunt teaX in, when la
impeached him (which was upon a stool whUa
the I^rds bar,) about that nicety the Lorii
would DOt admit so much as conference. If
you have law to maintain the inralidity of the
pardon, come with it ; for in^is, youcomesot
so near a co-ordinacy with tUuUonjs as n bib.
This is Judicature, if vou fuf^^lB loo forvui
the Lords will say, ' It is yooHfcuIt that yos
* appear not ;' and so I know noterbere yuur
arguments will ever be hevd. Fspeak wi||i
great tenderness in a tbinff Sbt of my waj,tBi
the matter is so obliterated, and hard to mdii
ancient precedents. Now I wouki move yoa tn
have the Committee consider, whether Daob)*!
counsel shall deliver their plea in writing, ioA
then you will make no scruple in auswef-
ing that.
Ordered, *' That a Committee he appoiote^
" to inspect the Journals, and search preoe-
" dents, touchinq^ the methods of proceediop
*' in relation to the Message this day sent from
" the House of Lords ; and make Report to
*< the House to-morrow morning."
Thursdat/, May 8.
Sir Thomas Clur^rs reports, from tlic CoB*
mittee api)ointed trj inspect (he Journals, sad
sL-arch precedents rclaling to the me.ssa«re yes-
terday sent from ibe Lortis, relating to Uieeari
of Danhy, That the Committee hud met ; and
had agrcid upon a lieport to be made to tbe
House: which he read in his place; and
afterwards delivered the same in at the clerks
table: where the same was again read : And is
as t olio wet h : .^
" T^at the Committee findir Aat, on llh,
" like oocaiion, tlie House of ComoKms haie'
*' a|>|iointed a Select Committee to join with a
*' Couunittee of the Lonls, to roniijhr of the
*' methods and circumstancea to h» T
u Uitfitrials."
' Ifirtl 8tnifr«rd*s trinf, ! "
/m High
A.D. 1678—1685.
[798
Del^ite thcfttm.
rnun^rl, but tlrrv <li»J ih"1
tint W)ir»
it the ^j
Mr. /
iiT«nce Mi
I reasr>n I'
^ ;r,;(ltj, H<» t'.i ■
I ilieT«>WLT, tlie^
ihh to TOiir Ihi-
ill lirtlrtre,
c\ ? Or will
It concern 8
\V*l»c-
\1' fi^n yon m;*n«g^, ^c.
Take }mir ow» rcsolu*
I'M lof-t
lUrlic r
OU treat wit I
hi:
lie Slum u::^ !,;
•efcr, i!o tint this,
thai m»noih<i*c««c,
iha in it.
Cdoucl 77fi/s. It will W abfiohitely necips-
■•Bry for j«u i'> go autl cxnmiiie flie cir-
eufMtaticf^. We hnvB ftasseii our jtidg-
WKHtJi^ ' That the paiilon is not Iwi!, nmi
ffte Lon?'; tn* r 2fiTrn 115 nnltcr, *Thr.ttfjpy
' '■ ' ' ■ ■ ' fy
u".!
^ CtitUjSLl^ uiu] ihcii; be JiO
I em, nnd thr Ijord;* are can-
L ttiii] !>anby hastntujy
-atnl thi'v HHy it 19 a
. \M' iiavc I': ' ^' " ...^. I-.. :
: Uanbv >
Icajity how ci
III J iipnrji.il :i
lit themselves, 1
fnnttrr.
/itrmaj i^c. i tiiirik it hnnl 4or y<Hi to
yimr poorer to a Commit If c in so
• art* it|wjn. Thn Lords
would try Diifiby, -^o,
1. iu«) you not present, I
I u I d 1 liter it. I am not
(ji Ion I
.li^'^lM'i!
ihe finfest wny, ami the iK^t m^hod, to ittilow
ttie iireu^datit ot* proceeding in lord Straiford^tf
" '^ n The - ' ' (Talbot)
ihethiug-, uuiif*»rof
' I not flH»
I things,
it*
u that i\m
, lAun thiiTik
WH« tnrrieii bdbr>f lopri
jy isTepeaiod i" Or that
the Lc»nl *?t*'wiiru'5 otiice is i«|W'nU»d ?
Mr, Vattfi/tan* 1 do nf»l think il lor our dig'
nity to bt^ jirenenl lu VVi^tminnfir Hall, ^heti
liauby i* tbrrr, <Stc. When an accusaiion is
ituidi* in iiarhiittiftil, it is not by a purticutor
member 7«fl Kuch, buticis the acTfuantinu of
all the Coin !i>t>nii i»r England. Every Com -
mouer of England is here present, and the
counted are commoners, and yrvu connot t^
present ; btit this you may do^ you may
p..»M<(i ti'f counsel ; for ihey atHnii by iheir
■'■■ , n^aifist a re»ohitio'n y«ii ha^ e taken,
\ „ I, at a couterenoe, to tell the Lords>
that you cannot bo there present, but desireg
DanGv 's reasons to he g^jfen you in i>a]>er, a«
the f-'ife Lords Reasons, ^c. And then yim
niuy show th^: unreasonnblrnrss of your being
pi CHcni tQ bear llie counsel arg'ue.
Ulr. Paul Foley, At the in>tTiniilteei all wera
or opinion, that no lord hitrh steward had erer
hi*t n appointLul by the: king, unless in lord
^ * trial ; and bt? was but in the notur
« i , and he can do no harui. As ther«
' t of it hciibrr, 90, 1 believe, tho
into a nnstako. If we can
without a hrd
TIKtV \Mi\;
1
"*vi an imp**:^'
ird, then
rnrl of Antndei hnd ihr liigih stewuni at lord J
StrrjfftTrd*^ tml r if'thrrr be no fSfimraisstoii bui*l
I ' thcirllpraker ; iho
I I he pleascH. The
(Jluinci:IUu ii ^pt^ALe^ by commi«si^y. But
ii'thpre must be a rommission to try peers id
liut lhatj|^iiy>b«^
media ^^
•"ijt III J. Ciivu Ml (lie Kjfi^j^ 9recht
Of things was discourstd at the com-
..".«*.» wht'llier the Hoti*ft,' i»lioul'l be therein
p^r^n ? But Ikrre wa?* no case found of Uie
Tinrdon. Sep, Many of the iu^peichmaotji m
, and aA the jsteps to condemn or
^ to Im? in full parliament, *nd that ifl
a reason why we oujjht to be there. The
4or«h, H ^rrm??, rrprrt nur company to h^af I
pardon. In lord
'•mm'^H arcftiftf, the '
toiitee, iij K6-jeant Mnynard*! vh
Ijti
' what Ion
, I looked orer th« 1
t^ ritatrictivi*, * to bear
otmset has> It; say, in jut*
799] 1 JAMES. II. Proceedings against Thomas Earl ofDM^j/, [i
not judge tbe |>Br(lon void, it ma^y bt/on
honour.
C<»kjn«l BircA. Yoa bare IkjitiI Irooi
\<ml3, tltMt ibey have s^ a 6mj ihr ttlnl rif 1
DmiU^ ; th»t IS, hii pianloo* In the cats i
lord btrafibnl, Uiere was • r^*"-**
ed|> &c. If you wrill pui t|
fmuld flcfiire » Coiif'ereQcr
a caminittee of kinii ina^joui until un, to oofl
bider of the ways, oot only of bai« iti^ eotm
m lord Danby^s case, but thai what rtktn fa
the live lords luny \)e fiut ig»to method.
Mr. SachcvcrftL I ihinW lliU i* a wwjtkffj
potntf and that it ou£;ht to Ut cousidrrril CI
As for that <if Uaiibj'x counsel » I wimlJoiljJ
)jut the lordfi to deiiUrv how far thej wiU qm'
use of It. Neict, ' That we hvjie itie lunb i
* not iniruduoe any new li^liod of |
» That us you have searcbefl ^,^^......^^^^'^
* they raay hkewise/ AtiO I
xvill not ^0 any unusnul vi :tv .
usual, Nej£l,'l cami,
induce the lords to Mil'
Hiffh Steward, since the ,
Uament, of like nature^ Un\
liament. Neit, * That tiie i
* doubt to give the lurds e^wrh ^
^ cerninjf the pardon, n»» v i^ocajUw"!
' lordshif»s, &c.' And I dr< utthcM J
wdl ^ive you sucli satlsfuction as ibat thei
ter will \ie settled.
bir T. Clargti. I like the r ** It,^il^
not the manner; for this will !•.
upon conference without end, ^ *%MUMMilii>|
secure the thing by a comniiltfe ofbc^tli II<h«v ]
and then the f|uestion alkjnt ih.- | .ir.i s?^
and tbe question about tht ^
be settled Conference v^ il i i
time will not bear it.
Sir Richurd Cust, That way fa«t pn
will be longer. It lunst be bv *ii
that end cannot be foreseen, I i.^
Hacherereira motion^ and wuiUil le^a
reasons with the lords. In th** t7ih«
Sf, chft|». 6, no parddrt f i t l '
unless it ^msn the jirit
the Chancellor may K' I am u juiroou wi
without s{>eaking y0i tbe king.
A Conference was ordereil, \^ i
* tificatioo of his pardon.' If tbe lords think it
n<A reasonable to eondeum him, unless his
onunsel be heard to matter of law, we may he
present, and return again to our own House.
Mr, Fitjf'fe. There passeit an opinion current
in XliP' House, Slc, whicli 1 gave into, but since
1 have thought of it. In !21 R, 3, in tbe caae
of lord Cobliani, judgment was pronounced hv
the duke of f Lancaster, Lord High fe^eward.
In tbe archbishop of Canterbury's trial there
is nothing of a High Steward ; but in lord
Cobham's case» it does expressly appea**, that
at his trial there was a Lord Higli Steward,
by express direction : For the High 8leward is
rather the lordb servant, or spe^iker, thnu a
judge, or director of tbe court. Tliere is ano-
ther note in PlocUa C&rona Parltamenti
There is particularly a High Steward appoint-
ed, \:c. And that probably is the reason, why
the lonU admitted a High Steward in lord
Stmflord'a case ; and since it has been admit-
ted, I see no great injury in it. Counsel was
assigned lord StraliHrd to a particular point, as
to the pardon of lord Daoby. Inthesaum
parlianu-nt of It. 3, was the case of Aruodel,
archbishop of Canterbury, {Then five lords
appellants did appeal a certain number of lords
of High Treason in plena Parliamenio^ for ob*
twining and exercising a commission.) In 11
H. 2, he pleaded bis pardon. All was done for
tlie public good. Another be pleaded, 17 R.
2. They did, by act of parliament, reverse
that act, 11 R. 2 — 1 Hen. 4, though the
things were condemned, yet the manner of
proceeding was not condemned. The Com-
mons requested the lords judgment as to that
particulai' jmrdon ; who judged it to be a ble*
niishment to the king^s royal crown and dig-
nity, and surreptitiously gt)t, and voided it by
act, he. Then the Lord >4teward, the duke
of Lancaster, acquainted urciihiftbup Arundel,
* That his parilon was rejtealed by act of par-
y^ liamcnt^ and if he had nothing else lo sav f<»r
* himself, be must pass judgment upon him.*
And be waa banished. Now I desire you to
«xinsider, whethei' this record I have mentioned
is not ^i to be translated. Now whether the
king cikn pardon m a declaration of the law,
Atid|iQ uoints of derlaring treason, tbe Coro^
nwaPbiMJ ^ith the lords. It is worthy your
edMjeilENi, whether, if the lords declare that
the khin ba.^ this power of pardoning, all the
Commons are not concluded by it, I am clear-
ly of opinion, that, whether vou go in a body,
or in a committee, to Westminster Hall, it is
■gainst the dignity of tbe House. Now by
I 4 *olemn vote you have declared this pardon to
be illi^al, you to sit and hear counsel ar*
raigu your vote, is very indecent. You may
let your membera ^q as spectators — else you
will go to try a man, aJtifr you have ^^^n
judgment — -You hear that yoursdves are pre*
c (pi talc. Thert:fore I would send a metsage
to the lord- t<» t;ikL' v hut course they pleue, to
ilifonn ii «' ijardon, but that you
Hill not 1 1 If the lonls pteaae to
coulirr with you on iIm reasons why tb#y can
mons acquainted the Lords, ♦♦
^1
** not epprehend, why th«
** address his majesty for u
«^^|
'^1
^* in order to tlle^^^
«^^B|
" oftheearlofDHulM
as alfSi^fipciN
** trial of tbe olbci ^..c ^.^.i
>. liocmi3s« dn
" conceive the constituting of
atli^ Sicwill
** is not neCfKSJirv : \\\\i lUtit
t 1 f I* M 1 1 1 T1 t^%J^
♦* ment* jti
iflii*
*♦ mem wi;
\sfn-
" fort
*' moii
** TOCthwts
-mch*^^*
'<of the Ii
(ililg1#lbt
** usatfeot p.uiiameut, that idi lucwiiv
*♦ may b<^ avoideih*'
Sir ii4/j^€r( Hamrd, I know nm, wliat 10 dU]
1
Jor High Treason,
til is bringing lord Danby to Westminstrr-lialL
It looks like n |ittg«ant. f Lnnvr nnt \\)mi to
Cfttl il. There was never vn iLjht
before liie worhK A crtiin^ hi to
tlie bur, kc. nnd noboil^ .
bim, anil ymi iimsi ^ to i
affainsi yottr Vote. In m^ i^iitni-^'s ^ ^vould
mt^T that rnaUer lir^t*
Friday^ Mny 9.
The L*or»ls (lesrrei! r
was llpTf4?d to, ftnd Fi ;.
*♦ Ij4>r(iis do T ^ ; topiHiuiirt- oi u«iuj
•* Housf^, i i'» iioi ttiink k con-
•* fiiriuahh* i<. .; ■- ^-'- ' !' jHottied-
** ing"* of this roiirf^ \^ vef musit
'* bt, *eudt'r in niiiT* i ir judica-
ta ture/**
Sir ItQbert Houard. The Lords have abso-
lutely deiiifd your conlbrence and couversatiun,
mWut ineihodi* uf prtK-ef «lini^ in (he Iriab, und
you may tc^r ever be ilrnied it. It tvilJ be a
ilmngc upcctacle to t*ec the carl of Danby jct
the bar to-iuorrow there Ifj arnii^n your vote,
&c. and all thi; cfmnstrl for him ; and thepo*
pie Admitted to henr it, by jireteuee ot not
agreetng^ wah tin? lords in thr^ ccmt'erence.
'Aii-y tliat curried ibis question of not contlr-
riiJ^f vviili yon, arc resfilve*! la cHiry the othrr
question of saving bitn They hIio ure ii|tainst
any mrthwj of |*roce<i<lln^, are ag-mos^t the
thui^ lUelf ; they will rt'solie this to be a i^orMl
pardon, iiud there is an end oKalK Ut?re is ,the
elise: Can any nmu ^*y tliM cvcra |iardon was
ohtauicd itffunist the king^s ct>nmation oath f
Ediy. 2. Edw« U. agajnit nil coo'tideratiou t^*
aiipeal, -^c. Oiuumhi nuijjuiic<i,-5cc. — Aguinst
ml thofiL* viiijbte thingn ; itll iiurdoned. YtiM
deatre to ar^^ue with the lords, and thry will
not a^rec witli yuu. And now^ i^^hich iray
shall vrc proceed in parltaroent, in the declara-
tory i>ower of trcusou ? A pardon uillj ul the
root, ih^-"^' * ' -^ *' ' ' '^..rlmmciit,
ijir 7 'fise the Commons
•ay, ' 1 ... .^, :.„:, ^' ats in \V esmIU!ste^-
* bait, are iucorivenKUl,^ mubt they nut be
beard ? But in a iliintr' ncv«T hi^ard «if, l>aid>y
to go t ri umph in tly into VVe&tiitiu^ler-bnUj and
come back triiinipbantly , mid be acv{iii!tcd in
the Lorda' llouiiey mustwe not Ims h(«rd by the
♦ Mr. Alijernooii Sidt»ey afT^rms, •• That
th« alnive Vole w*i« curried only by two vinoei*,
the one %\^l " nuir^ the other
fll\y-two ; 1 nps that were
pr" --' ■". '. i:n ivrr r ^. , ■ ' , '
ri III (llf t
IU.»,.,,v- )i\\,) Wrres,^ m. ....-„ ..- .- y..» »»*..*
til* *ai>(iui4hed. 'J'bat ot tbeie ftUy-l^ci, fif\y-
0lia the iir\i div iMati tf li :ind ihai, he
tliOUghf Uv i the rorl of
LeiceiU^, (■ '-.m d'nu^ the
•ame.** B"i "ar-
Ikmcnt bnv. i vio»
an L u« <#iily iii{»«tciftt.
A. D. 167S— 1685.
lortTs^ aa to metbodB, he, ? By tbis proceeding
of the lorda, all lawt* are cut nff, Thi*i hinders
all questions whether the pardon be g€oi|, or no ;
tUh erects such a judicature as was never he-
fn the mean time, before you proceed
; riirlher, I would senrcb what the Lords
have done,
IV^r. Sachrvrrfil. I am really against desiring
lh«^ Loidglosil tht!( allernoou. The lords bare
dbiLi tin lied the point ; they will hare noibtng
10 do \i ith yoii ; and 1 v^onld muke a vote to
hare no more to do with thctn. This is nm only
lord Danby 's case^ hut the rest of ilie Lords ia
the Tower* If this be so, let us ha?e no far-
ther correspondence «ilh them; and vote it.
?Sir tUomtif'Ltc. \ move you, to search the
Lordf Joorhaiv If you Bud it so, then I am
for all til- ivcd for*
C'olont I Vi to all the pr«>ceeding8 in
lord Dauby y cajkj, And the five lords, ^ec. 1
hear the Bishopi$ are likely to sit. This is a
novel tbingt :iod contrary^ to alt precedents and
|Mnclice. The Bishops are not men of blood,
and will be very mereifiil to the lordti ; It con*
cerns niif that law and custom may not be
changed. , ^^ ,
Rrsokedy <* That a Committee be appointed
'* U^ inspect tbe Lorda Journatf Ace."
y\i. SnchcverfU, The Lords have given yoa
^no answer at atl to the point of a Ixird ILgh
!^t.i*:irtf inn) 1. 1 thr- Lord* Judicature be ever
iii^not to go in an unuitual
lit I hey have said nothing,
lion entered into the
> >(ju wUI S(?e wbatloi'da
j^rti tor U| and wh;a ugtuuMtit.
, In ilit Aj}crnoon.
Mr, Hompdeu reporta the iearch of the Lon
Journal.
Debate Ihtre^n,
Mr,Sa€hncr(lL This wilt ^ ' T,- ?
great delay, I>uritig ull tfiis i ha
settling the order of trials, •Jkc. Un i'im'^ij»s
come concenietl-^Another Lord inuy he
niiCnt'd couuS(;'i in fortilieutlon of hi^ pardo
iS:c, \*our Commill* c caunot give you :ui i«c*
count of what is dene to-dnv in ifr I^^ndi*
Journnl ; but if you please^ 1 tore I
give 3'ou my opiuiou in tli. a tlie
inatlrrs you sent to ilie Lords ihout^
and iheir HU^wer, may l»e reu li you
are really for judgment. [Thty utrc read
accurdiouly.]
Now I Hi*e plainly what paw we ate at*
You have desired a confcren*:e, ike, only to
' ':l* Lonlb will not take any i
and to that you have no au
^,. ui. I i.v. McAt would knoH« npott what ao
I count tiic I^ords dewre of the kiug a lord hitj'
I Me>«ard; aod to thi»r vtio htw i:<i jni^vvver
j nil. Next, you ba^ i<-^e <
' the two HiiiiM V. hi ; lid iU
lavKuith: ^^, ^e, Notwiiuitaudiiig
all (hu !• ' > yourf, tlufi it as if,
* tbcCotuuiOwttdv uhattbay wilt, tbey wiUgiva
803]
1 JAMES II. Proceedings ogainH Hiomas Earl efDanby^ [804
• jO'i no answer.* You must show your re-
fcnttiient, that the Commons will not KuHer the
House of Lords to truni|)te upon thorn. If
they will «io ut this rate, thoy will strain their
power, as they ilid in the lasi parliament— the^
onlerefl their' otiicers to make use of a const -
der<ihU> sum of money which was for disband-
in|r ihe army. Pe'rhiips their judicature is
one of the greatest p^rievanccs of the nation.
All they shcUer themselves with, is their judi-
cature ; so sacrc^'d, that we must not speak of
it. There are hut two ways to let the Lords
know how we resent it, viz. To punish those
that appear for Danby as counsel, who are of
the samedej^^ree with' us, conununers ; and to
take such methods as hn^c Ixien taken, thut no
person of the lon^^f robe presume tu plead
a[;^aiust your vote ; and if tliey do, tliat they
shall be esteemed enemies to the priviley^ts of
the Commons of Kng;land. [Which motion
was seconded by many.]
Mr. Boscanen, The four jjenllcmcn re-
tained counsel for lord Danby were at the dof)r
this morning', to have had the opinion of the
^flouse in this matter, l^y what discourse 1
had %iith them, they were not Ibrwavd to ap-
pear in the business. If you do it with the
least noise, it is best. Gentlemen here cannot
hut be sensible of the con.sc<[Uv'j]ce of the aifairs
dcjicndiu^; betwixt us. 1 am far from givini^
lip our ri;^-ht« and yet I would not make a false
stop in it. * Therefore I move, that if any
• coun.sel shall presume to plead,' N:c. as before.
Sir Ihnry Ford. The lawyers arc in little
belter condition, than betwixt tlie upper and
nether mill- stone. If the liOnls commit the
lawyers to the Tower for not pleudin"*, y<nir
vole cannot l'*.t«'h lliem out. 1 woidd not have
them pUad without leave of the House.
^Sir Holnrf Car. 'f ho courts of Westmin-
5tiT never assign lounscl auainsl tlieiiiselves.
1'liis will In: eouu^el ol Ciimmons a;^.unst your-
w'Urs. It is not ncce-sary that the Lords
Nhoiibl assjorii counsel, for two i-easons : It is
not eoiinsi I that will convince the \A)ri\s of the
le^-iiliiy of the pardon. They plead for their
fee'', and they have better law near at hand,
the juii^es. And the Lords will not ;^o, I pre-
sume, to Westminster-hall, and expect that we
ihall ixi} r.nd wrangle with the lawyers.
Sir ihuf/ids CUir^a. Vonr vole is general,
and eouii>el art? avsigned in detence of lord
Danby, by the Lords. For couns(,l to appear
in this ease, i> for a commoner to be of counsel
a'^ainsi himself; for all the Commons of Ep;,^-
lund are paities to this iuipeaclimc nt. * All
• the Comruoo.'* here' is by a fn.fitm in law,
and it is a just vote. * 'I'hat no eounsel bo ail-
• ujittcd to pit ad in behalf of this pardon.'
Mr. I'an^han. If either llou^.r suy they
will, or will not do a ihin-jj", without ifivii.;,;^ imy
reason f »r it, I would not h;<ve that l;iiliire
hrre. That lar^e jurisdiction ('f the I.on!, was
tht eaose (»f so much blood from Uiehard 'vMl*s
tiun; to Hen. 7. I fear, the time you have
<pent sn lonjf will be lost by this arl^itrariness
•f the Lord*. Now for the appearing of the
counsel, &c. If the Commons arp repreaenled
here, the laws maile here are as mach as if til
the Commons of Engiand were here presenL
You cannot call all the Corn mens to pve tbetr
voices here. When once it is said, * You re-
*' iiresent the Commons bi.*re, by a fiction in
* law* (as Claries) your bills «rill be but ' fie-
Mions.' Whhout*injustice to the people of
Euj^land, you cannot (Ihr your honour) be pre-
sent when the counsel are at the bar, to plead
Danby's pardon ; and I insist positively upon
the vote moved for.
Lord Cavendiah. When lonl Strafibnl was
arraigned for treason, he was so far from
pleading a pardon, that he wrote a letter to tbe
kincT ^^ P<^^ til® ^^^^ o^* attiiinder. This i«
widely different from Danby's case, lu Dr.
Shirley's case, a vote passed of this naiiire,
and thV seijeant took the counsel into c. stoiiy,
5cc. and what was the consequence ? W e ended
in a breach ; and that, 1 fear, will be ilie con-
8e(pience now, and is the thing that Danb}i
party in the LorcUs' House aim at ; uhich will
be the most fatal thing in the world. Before
this vote pass, I would see a little, &c. lest
things come to the last extremity ; and tqU
only, that no connsel presume to plead, with-
out* leave of the House.
Mr. liuahuorlh. In the ca.<ie of sirKalph
Ferrers, 4 U. 2, Resolved, •« That he ougit
not to have counsel of any earthly creature,'
but of Go\\ himself, in case of treason." 5 R
'J, sir Halph Cofim^an impeached, 6cc. was de-
nied counsel. 23 Hen. Q, the iluke of
had copies of his charge, but no counsel, 8k.
In the case of lord I\1iddlesex, he was denied
counsel ; but that was to misdemeanours onh'.
Lonl Ikistol was accused 2 Charles 1. t*
the enrl's answer, counsel ^\as allowed bint;
but the king sent a message to the Loni$,
* That counsel v. as not to be assigned in te-
* lony ami treasim.* And the Lords offered the
order of 21 James, and said, * They had a»-
* sioned c(»unsrl, before the kin«;4^s'n}cs»;;e
' came.* The judges were not advised with;
but these were plain matters of misdemeanour,
but not felony and treason, wherein they could
not have counsel, by the ancient and funda-
mental law of the land.
Sir Jo/in Ticvvr. Several precetlenls have
been cited to you ; pive me leave to maki
some o!).%ervations upon them. The Lonb
eame.^t :is<ign counsel in any impeachoicDt,
witl.'out the leave of the Commons. The cue
of I'errers was this: He was impeached fur
tre:ison ; which treason w^s contained in seve-
ral lett. IS, found by a beggar, of his corres-
pondeiuAs in France, \'c. %\hich were after-
wan is found to be i(»rged (see Cotton's Ke-
eords, 4 K. 2.) he was denied counsel, lee.
Cogi^iin's case was a riot u|K)n the knights ut
St. J:jhn (if .krntialem ; it tended only to trea-
son, a!id he had no counsel allowed liini. Tbe
('ambridgo riot, where the townsmen setKcd
the nnivtrsity treasure, treason ; thev wers
not allowed counsel. In the earl of firistal*B
cane, which was not an impeacbmeat, tbekinf
805]
fur High Treatom.
A. D. 1678^1685.
[806
laid it dowD as a fundamental law, * That in
* felon V and treason no counsel was to be al-
* lowed/ )Scc. hut that parliament was dis-
solved. By Hohart's Reports (printed) the
earl of Bristol, by law, could have no oounsel.
The prisourr is always supposed as learne<l as
the jury. But I wuuhl ask, where matter of
law has been alledij^ed by tiie prisoner, and
counsel has not been assigned him ? Tue earl
of Danby ought not to have counsel, and he
ought to nave pleaded his panlon before you,
face to face ; and if it be otherwise, it is error,
and may be reversed. The Lords cannot take
the jurisdiction to themselves, without the
Commons, and therefore your vote is grounded
on reason, and it binds without doors as %vell as
within, and is no * fiction in law,' as it is
.called by some. If you make a vote^that no
counsel shall appear, you conclude yourselves
generally. I would have it, < That none shall
* appear without leave of the House.'
Mr. IViltiams. 1 take the case plainly, as
the common law stands, that whoever in at the
.bar for his life, ought to have counsel for mat-
ter of law. And it is the rule of law generally,
,that he cannot have counsel ; but any person
indicted of treason or felony, in matter of law
cannot be denied counsel. The law is the
same in parliament, and out of parliament ;
and whilst we are hunting down one man, let
us have a care that we do ourselves no hurt.
Danby is to sUnd and fall by his pardon ; and
he is to live and die by it. 1 am not lawyer
enough to decide the matter, that here is law
in it as to this particular point. Now, whether
the Lords can assign Danby ooimsel, without
the leave of the Commons I* Take it in an or-
4linary case, for you must make an aualo<;y :
Have the accusers any hand in assigning
counsel ? It is the conil th:it is judge of law,
and ihcy assign counsel. But it is said, ' The
* court is (counsel for the prisoner ;' but they
may assign counsel. We all know, the Com-
mons have no hand in triving judgment ; it is
the Lords that do it. Thertfurc 1 take that to
be the reason why they may assign counsel,
and no others. I admit, that it is a more so-
lemn thing than an indictment of a grand jury.
This diflference is only in degree, not essen-
tially. * But will you trust the I/Oi-ds to assign
* counsel ?' say some. I answer : As the
Lonis are trusted with the judgment, so they
are trusted with every thing that leads, and in-
duces to it. V<m may as well say, how can a
commoner be a witness ibr a lord ? as deny
l)im counsel. You do not eat and drink for all
the Commons of Kugland. 1 take it, that the
Lords ure proper judges, and of all things that
induce to it. It there !<' right to Dauby in
having counsel, let right be done him.
Mr. Vuughun, Consider what Milliams says,
' It is the right of the Lonls to assign counsel,
* &c.' Let him give an instance^ whenever
the Ix>rds assigned counsel out of them who
are the accusers.
Mr. Willuimt. I spoke to the neceisity of
th« tbiog. Dauby must hava eumifd out of
the Commons, or none. The court may assign
him, for counsel, any man whom they think kt
Sir John Trevor. 1 have ha<l the honour to
serve the king, as counsel. 1, by my oath, am
not to plead an untruth, and if I declare an opi-
nion i'or the prerogative that I think is not so,
I am |»erjurcd.
Sir Thotnaf Lee, The Lords are now setting
up their jurisilictiunv In all causesj, and in all
time, courses of parliament and Westminster-
hall have been very different. It is a strange
tiling, that a point of law should be found out,
by two or three gentlemen, that neither the
Lards nor Commons can (hid out. The na-
ture of your accusation of this lord is from
the notoriety of the thing; every man ij
his accuser anil prosecutor. There is a great
diflerence, in a suit, between the king and
the subject. There can be no benetit here to
the prosecutors in the Impeachment. I make
no doubt, but that the Lords may assign ctmn-
sel for their information. I^rd Mordaunt' es-
caped, &c. because the Commons would not
proceed, &c. As it is now, I fear this way
will destroy all Impeachments, and therefore i
am against it.
Sir Robert Hotcard. T have but one word to
say to what we are to do. We are driven to a
necessity to defend oureelves from as great a
blow as we can apprehend. 1 will say some-
thing new to vou, not yet observed. If a man
be impeached at tlie bar, and if matter of law
arise, the prisoner may have counsel. But if
there be so extraordinary a thing as this {>ar-
don, so got, and snatchetl from the king, and
all turned into a point of law, it is strange.
Mr. Garroicay. Do you remember what you
have voteil? Are you afraid of what you have
dune? If thc^e Lords have counsel assigned,
be not afraid of what you have done. Let us
leave our cause fair to the workl, and trust Goil.
If the Lords will retreat, they may ; they will
not hear j^ou as to method of proceedings, (^cl^
and now* y»u will not defend yourselves. I
wouhl say, *• That if any connsel plead in jnsti-
* Hcation of this panlon, they shall be esteemed
* betriiyers of the privileges and liberties of tha
* Commons of England.'
Mr. Powle, It is the greatest mistake in the
world, to tve us up to argmnents of inferior
courts, an(f the greate^t mistake, to presume,
that this House will do any injustice; to de-
prive an^ man of his just deteiiee. When
there is just cause to ha\e counsel, this Housa
will allow it to the greatest offender in nature.
No ct)mmoni-r ought to plead against w hat we
liave done, without our licence. But now ^ou
have made a step in this matter, never admit
this to be done by the Lonls, solely, au<l singly,
upon their own ]K)wer only, without admitting
you to Conference, to svule inethoils of pro-
ceeding in the trials of the lords, &c. 1 see not
why we should go to any extreme votes to oc-
casion a breach betwixt the Lords and us. But
if there lie such a strange fate over us, let ua
not.be the occasion of it, for the greater satis-
factioa of thd couhtry, that we Mvadoua na->
807J
1 JAMES II. Proceedings against Thonuu Sari ofDanhg, [908
thing: precipitately. Lord Danby is not so low, ** Anil therefore the Home of Comi
but that he has thends; therefore 1 desire, that, have commanded as to aoqnainl your
in our proceedings, we may not do that which ships, that thin^;^ standing thus upon vonr an*
carries defiance in the forehead of it to the swer, the^ cannot proceetl id the uiaU of tht
Lords. If you vote, tlierefore, < That no com- lords, before the methods of proceediiigs bead-
< moner presume to plead in defence of lord
< Danby 's Pardon, without the consent of this
* House,' ^ou do that in substance which has
b'jeu proposed you in words.
" Resolvefl, That no Commoner whatsoever
^< shall presume to maintain tiie validity of the
. *^ Pardon pleaded by the earl of Danby, with-
** out the consent of this House tirst had ; and
*' that tlie personn so doing, shall be accounted
** betrayers of the liberties of the Commons of
« £ng.and."
" Uesolved, Tliat the Answer de]ivere<l by
'* the Lords this da}', at the last Conference,
*' tends to the interruption of the good corres-
*' poudcuce betweMi the two Houses."
Saturdat/, May 10.
Mr. Hampden refiorts from the Committee,
tlie Kcasons to be offered at a Conference with
tiie LonJs, as follows :
'* Tlie Commons hope that your lonUhips
will not procee<l to the iria! of *tl»e lords, &c.
till things are adjustetl betwixt the two H«)use8,
as ihey de>ireat ulliiuiestokecpugood corrcs-
ponilence with the lords, so most especially in
this conjunv tiire, when the most heinous ddin-
?|uei»ts are to be broughtto justice : and tlierirfore
oranswi r to the last conterence, the Commons
have uoiniiianded us to say this to your lord-
ships : that ^ our lordships do not otFer any
answer or s«itisfaclion to the Commons in tlicir
necessary propotnils amicably offci-ed, by way
of sn;»|»< siiMin, that they miuht have been con-
firiutd ilicMciij, by answer from your lonlships,
that your lordships do intend, in all the pro-
ceedings upon the impeachments now depend-
ing hct'ore yom- lord>hi|)S, to ibllow the usual
course and nu'thods of parliament.
" And farther that your lonlships have not
given the least answer er satisfaction to the
Coinm«ms, c'Hiccrniiig \ our lordships address
to the king tor a Lord Iligh Steward, though
tlii^ Commons proposed their desire of satisfac-
tion in that matter in as cautions terms as
could he, to avoid all disputes about judicature.
** The Commons, to avoid nil inteiruptions
and dfli\s in the proceedings ag:;iiist the lords
impeached, and the inconveniences that may
ari^e thereby, ha\iiig proposed to your lorcf-
ships, thut a committee of hoth Houses might
\w. noiuinaic'd, to consider of the most pio|)er
wa\s :ind mtthodsof proceeding upon impeach-
ments, your lordships without any reason as-
si-JCned, (sjive only that you say, \ou do not
thnik it conformaMc to tiie itdC-s and orders of
t"ie (iroceedings of tiiis court) liave refiisd to
a'4'rce nith the House of Couunoiis in appoint-
ing such a conunittre, though not heretofore
din led, \vhen asked upon the Hke occasion,
antl at thin time desired purjiosely to avoid dis-
justed between the two Houses."
Sir John Trevor reports from the Coofcrcoes
with the Lords, *' 1 bar the membera sppoimcd
had attended at the Conft^nce : and thil Ibe
Conference was managed by Uie Lord Privy
Seal : and that he acquaiiiUNl tbem. That tM
lords had received a PetitioD from the eirl of
Danby, v%l|p was ordered to attend their loH-
ships this day: which his lordship resd;
whereby the earl of Daoby sets forto, * Thtf
* he met with information severally from hi
* counsel, that they durst not appear to am
* the validity of his pardon, by reason of a voli
' of the House of Commons :' and that tbdr
lordsliips drsired to know, wheth<Y there »ai
any such \\.te as wasalledged in the PelitioB.'f
Debate thereon^
"Mr. Garraway, Whether this paper be m
original, that the lonls gave you at the Cca-
ferenee, or not, it is no matter ; but yoa
may take a copy, and deliver the paper liacfc
again.
M r. SacheverefL I conceive that now yon are
to consider, whether we should give an Aa*
swer to the lords, or whether this Hoose oa
tell, whether Danby's counsel has given bia
such an answer in matter of faci ? Whco ihe
lonls can give you satisfaction to the dews
of this House for a Committee to adjust mi-
ters of the trials, 6cr,. by way ot' good oont-
spondenee, then it is time to proceed.
Mr. Vuui^han, Look over the journals fima
£dw. 3's tune, and you will never fiud tbativf
ought to be asked questions at a Conlereno.
In jdain terms, this is an accusation agaiail
the House of Commons, and you are askol
u hcther you are guilty or not guilty ? In sir
John Fagg's case, which gentlemen may very
well remember, you v%ere asked at a CJoDfer-
ence, whether it was by the S|)eaker*8 War^
rant, thai the counsel who appeared* &e.
were attached.
Mr. Foalc. 1 remember that question wu
asked at a Conference, and then it waa aid,
*• That the proper way of asking a question
* was hy way of message, and not by oonfer-
* ence.' lint I would not have you take that
for granted that it is not parliameniary to ask
qutstions ; for it is so; but then by a messagei
aud not at a conterence.
Sir Thomas Mtren. A question that we lika
not we let pass, and make no answer to, and
this question ujil keep cold.
Sir i%mia$ LittUton, I would not let ihii
thing altogether sleep, but would order tome
mendiers to search the Journals, to see whe*
ther there have been such proceedings in His
like ca.ses.
Colonel Titus. I doubt not, but, a qocatioa
may be asked from cither House. The lordi
desire to know whether such a Totel
\
kbit Home or no f
Jlr High Trcaitmi
As ffiuctt M to Bay^ * If
wilh
^ you have^ then We will take a course
"* yoijJ Ordered, " Tb»l a comrainee be ap-
^* fiointeil tfi iii»p«et the Journals ; mad seiirch
^* PrccedctiU coucemmg Qucslions asked at a
•• Confcrtnce.'*
Ordered* " TKtil all rhe members of this
^* Hoime, that sre ot *'i^ !'-'_' robe, do prepare
•* themselvesi wilh 1 : -iiinsl Ihe iiardoo
•* pleaded by the earl : I^^.ub^/^
^ Sir John Trevor reportis^ frcmi tUe Cvmniittee
'ftp|ioiniei1 to join i^iili iheCumnutteeorLorits*
^toctmnider «f pn^positions «iiil circumstances
r^laiititj to the Trials of the Lords ia the Tower,
'That the committee had made two propositious
to the ctmimitteeol torih,
Frmt, Thai they did desire to see the com-
ion of the Loi'd Hisfh Sievvard, and the
imiisians to former t>)rd6 Hicfh-Stewanls,
** Secondly, That they did di-sire lo know,
^hftt r— «>'"^' - >i;id L^ecii taken by the lords
spi( I crit or absent at the trials of
tbeU. ,:... . i
•• To the fiihi irf'i'^^irion, the Lords of the
^Committee pnHhiccil r.smesol the commissions
to the Lords StevrnrdS) for tlie several trials of
the lord Morley ami the lord C'ornwalits : But
thoie Ilia Is were ont of parliament. They
Jiriiduced the copy «>r the commission for the
trial of the earl of Pembroke, for murder:
ivhich trial was before the peers in parhament;
mild so differed from the two former com-
laissions.
'* Tl»e lords did further produces copy of tlie
CommisHiun jKiMfscd under ihe Great fcH»al» for
the triiil (jf Thf'f -' <if Danby ; and also, a
fbmi of the < i for the trial of the
' other fi^e hmln .:.,,,., I a-d ; aad did commu-
nicate lo the I'ommrttee a ResolutioQ of the
X«ords House, in hac verba :
«^ Die Lun^^ U Maii^ 1679,
** It is declared a!»d onlered, by the lords
*' sinritual and temporal in parliament ossem-
<* bietl, that iheoihoe of a Hijrh- Steward, upon
•* trials of peers ujhju impea(:hmeritM« h not ne-
** ecssary to the House of Peers : but that the
** lords may ftroceed upon sorb iriaK, if a
" III ' " ' ^n-' out appointed according to
** iiirir inMiMiip»» forlhcr ''' ' ' to the
cotumitie«% Thill u Uini II rfl was
Pknc ^iffonly : Thut, nou, ...,,; ,,ti in t*r ||ie
nij ol a LonI High-WtewHnl, ti»o court re-
I'd tin s iiiif riml WHS nol tht:rtby altered,
.,„. Ktrt ot Ft*en( in parliu-
ovci; ' i^h Hicuard was but as
m %[m krr or cbutnuao, for the more oiflerly
procei^ilinus at the trisfs^
** The copy (»f the commission fur a Lorrl
flisfl**^***'*'*^'* ^**^ *^** *•'''** "* ' **e etrl «if Durd»v
beui^r read» tl » "i thiK lUmse tooV
tacepiiou to [ ihe commi&Aion ;
Tiz. * A*- pro »i> ipum onrcium Hen«schalli An-
' gUm (citjus Pt-V3>enLia in km ptrte irfqtiMtur)
A, D, 167S— 1585. [810
* ut aceeplmus, jam racat ;' and dcfir^, that
they mij^ht be left otU ; as implyinjj^, that the
consliiuting- of o Lord High Slew .u was ne*
cessary : and thereupon jiroposed these words
to be inserted in their stead ; riz. ^ Ac pro eo
* quod Proceres et Maj^ales in Parliamento
* uostro assmiibtEitj nobis bumiliter !«tjpplicB«
* veruntj ul Seneschal lum Anglic hiic vice
* constituere di^neremus :* To which amend-
nient the lords of the committee did a^rec.
And it %vas further screed by the said com-
mittee of the t^rds end Commons, that the
commission under seal, for the conntitutinj^ a
Lowi Hig-h 8ieward for the (rial of the earl of
Daub}, shoaM be recalled ; aud a new com*
missitm, accorilioKf to the said arneodmeot, to
be issued, and lo hear flate atler the said reso-
lution : and that the like commission, ' mutatis
' mutandis,* sliould be issued lor the trial of
the other lords impeached.
" As to the second proposition, the com*
mittee of the Lt»rds communicated to the com-
mittee of this House the resolution of the
House of Peers, in hoc ucrha ; tiz.
♦* Dk Mariii, 13 Muiiy 1679.
*• Besolved, &c. by the lords Buirttual and
" temporal, in pariiament assembled, That the
<* lords .spinlual ha?e a rijfht to sUy in court
** in capital cases, till such time as jud^jfoietit
** of death comes to be pronounced,'*
15 Mflit, 1679*
** The I^rds explained lhemsel?es, That the
meaning' of Iheir resolution passed yesterday,
coDceniing the lords spiritual, is that the lords
spiniuril have a right to stay and sit in courts
till the court proc^ to the rote of Guilty or
Not Guilty.
** Tlie second proposition being a matter of
great weight and c*>nsideration ; the committee
of the Commons had commanded hun to re-
port it to Ihe House, in order to receive theif
directions for their further proceedings/'
DtbaU thereon.'^
Sir Thonwt Chrges. It is necessary that
you leave somethin|f upon your books of what
the Lord** have resoheil, > ii. ** That the lx»rds
may proceed lo trial upon impeachments with*
out a Lord High Steward.**
Sir U'iUiutn Corentry, I would hare the
whole settlement of the matter entered into the '
Jounml, uodcT one 4 ra i itr h i und regulation of
it, tor ptisterily to be guided by»
Sir Katfert Howard, i hear that the Lords
are goini; to strike at any method of proceed*
ing m in«peadimeaiij of the Hou^c of Com-
mon>i« Their tirst vote is, * That the bishops
* shall not stay in court at any M!nt4'nce of
* Guilty, or Not Guilty, &c/ Tius is a dark
teict, aud shfuild have a comm»fnriiry. This
does ooihiug lo the case of l«*rd l>anby ; ii
seeois, th»ry lake ntit voting to the validity, or
invalidity of his pardon, to be life or Jeath.
* Grey*s Debites, toL 7, p, t79.
811]
1 JAM£S IL Proceedings against Thomas Earl ^Danhf, [JSU
This ^res occaFJon to the lords spiritual to
judge any pardou good. If the pardon be not
a good plea, the charge is confessed, and there
remains nothing but execution to be demanded,
and the spiritual lords call this nothing but
matter of law. Now their canons are turned
upon themselves. 1 have heard say, that if
a bishop kills a man, he is to have one trial in
parliament-time, and another out of parlia-
ment ; he is to be tried by twelve men of the
neighbourhood. If this lie so, no man shall be
tried, but by his peers, if bishops sit This is
taken generally so far for granted, that Mr.
Sclden says, * They sit as barons in parliament,
* as Jure Regis, and they are to withdraw from
* the trials.' If they were peers in parliament,
it would be in their blood and generation, and
the^ must sit to appear upon blood and gene-
ration. This seems, that they who exclude
themselves irom judging in matters of blood,
by canons and all gospel business, have some
reservation upon this, to show an object of
kindness, rather than justice. I'hen see the
state of this case. Say they, < It is Guilty, or
* Not Guilty.' But in the plea of his pardon,
it is nothing ; it is but only a point of law. If
that lie over-ruletl, he is left to come over
again to trial. In short, that they who should
avoid seats of blood, should press this in par-
ticulars th;it they deny in the universal, is
strange. If in a surreptitious panlon tbe
bishops come to help men, the law of England
is in the power of one body of men, and the
statute 25 £dw. 3, will be wholly voided, if
the party be so well instructed as to plead a
panlon. I would therefore give the committee
instructions, wholly to dii^agree with the Lords,
as an error of judgment, if tlie bishops sit, and
so the judgment may be reversed.
8ir Thomas Mercs. The bishops press not
this ; tliey leave it to the lords. I know not
that the bishops said one word in this inafter.
Now, when the Lords jiid:,'P, whether this
pardon Im; good, or not, there it is ymx would
have it ])ro|M)sed, whether the bishops shall
withdraw iheni' I conceive, that the Lords
take it, as you do, that if the pardon be gcnid,
or bad, it is decisive, whether life or death.
The same reason carries it hy their canons.
They arc not to sit, for it is lite or death. I
believe you will have the thing explained to-
morrow, and tarry the point.
Sir Wiili'Ai.i Ihubord. 1 desire not to be
governed hy the canons of the chiiroh, hot by
the laws ot J^njhind. \^'hen you sent up your
message lu imprison lord J).'Lid)y, the bisho|>s
were \cry instiuuw n'.al to save hnu i'roui being
conuiiiUed. 1 appeal, ii they %oted not iigaiust
the law of ]^n:;;hind ^ Thi> thing must be so
settled, tiiat [)0ateri(y ujay be sate. Kut sup-
pose the liHlio|)s (.■xcliule themselves, as is
said ; it they judge to misdemeanor, if that man
lose his life hy it, in- he saved, they jud<>c in
matter of fact. If the Lords come to sonic do •
termina ion, Sc<\ we may be safe. I would set
this matter without dispute.
Mr, ikchevcrtlL Coosider a Uttle iWc state
of the case. It is a great poiat, aadlviiU
settle it so^ as never to trouble the Hooie non.
It is all one to me wh^her tkey proceed ia mj
part, or the whole. They have power toMi
quit, and not condemn. I say, tbe biih^
ought not to be present by the law of EogM.
If the offences of lord Dauby turn to nwde-
meanor, it is as dangerous as the jndfmciiii'
self. I would turn it thufl, * That ui CMi
' cases the lords spiritual have do rote ataUfii
' proceedings of impeachment from tbe H«w
* of Commons.'
Serjeant Maynard. I look upon tbe vUi
matter to be upon the old string, vis. tulsif
the tive lords from trial. A great man mr i
pardoned toties quoties as he can get a paran,
let tlie offences be ever so great, it* thispiiria
l>e goMl. The matter is now the bisbopi, k
If their meaning be to deliver their opioia,
* That this is a good pardon, or no,' it issUoHi
whether * guilty, or not gui]t3',* of tlieebi|t
Now, was it ever seen that a Judge haspovff
of one part of the law, and not the other? |i
do justice on one side, and not ontbeolhr.'
To save, and not to condemn ? The nniR ai
of all these tilings looks to another iNRpM.
They may say, he shall be acquitted, bsiMi
condemned, and so all tbe justice of the Mil
shut up against ofteuders. I would tbefcte
have an express declaration from ibe M
* Whether the bishops shall judge ia U
< Danby's pardon?' Be pleased UierdEmk
appoint your Committee to offer their ichm
for a farther cik-planation of this vote. Is ik
lords, and above-board. I did hear thrt m
lord should say, * That he was for thetiiHi
' voting, &c. because they would acquit kci
' liaubv.'
Sir Robert Carr. I will speak to madeitf
fact only. Your Committee finding 0Dly,tto
the bishops should stay in court till tbe' tea*
poral lonis voted, Guilty, or Not Giiiltj,di-
sired to know, * Whether their judgment up*
' lord ])anby*s pardon was taken forGuili\,ff
' Nut Guilty V One of tbe lords said, • Hem
' for the bishops voting in the pardon beanie
* they were lor lord Danby.'
Sir Thomas Cfarges. ror ought we laM,
the five lords have live [lardons. Th«: law nu
* That the king can do no ministerial act.' Atf
the king took the seal from the chancdlor ill
sealed Danby *s pardon. The five lords myi
at the bar, produce such jianions as this. Ilil
plain, that this judgment oi' the bislMpsisi
: judgment in part, to acquit and not condemn, ft
i that all this proceeding Ujion the |>anlon will be
I * coram non judice.* So that if the bishops viO
take ull this upon their shoulders to obstrort
I the justice of the nation, let them bear it tbcn-
! selves.
Sir Thomas Lee. Two or three tbii»i bifC
startled uie much. I find this is a uovel thing*
In lonl Stratford's case, tliere was no ^ueeliM
of the right of the bishops, and tliis mUUr
never came in question. The lords diid cirnisr
Danby early in tliis paiiiament, and laid, * |l
. ' wa« tit a new paniamant ahoald oonMt tlv
\ 8
8W] Jhr High Treason*
* error of the bit* Thw may pnif e ao error in
the |in>ro<NliiigT it'tW l.lvi.A.^Jjntjg-c theptirdon,
timl I be next pft|ii >. restore D;inliy.
Aa long Hi wt kc*p is ofprtictcdingis,
there is in> barm, i iy» * li»e biiLbo(i!^
* may be io coart/ t ^ i, »4i lf»Djj, and no
longfer — In nil ca^cs, as ilu-y rail thetnuelrefl
* Ibc G(i»at Court/ ihtry will miike vrhat rules
they p1ea&e« to be ol>!it;rverl. But those lliat
•re j'J<lge» of inelh«<U, by the snmc reason
niay be jud<^cs of life aml'deathf and dispense
^th tljeir own canons. I would have this
ti^atter Slav, liM tht^ ! ' 'stutter leisure
to diHiHHelt If ill * That the
^ lMJibo(M tthiill wtUKii'^vt, or >uiy no lon|r, and
IMd lon^r/ yet t rnunotbestituii^ed, i^ they
JSm)\ Kuy, * The bishops shuil withdraw for hts
* linii', hikI may resume it iu anoliicr,* 1 ^rould
tiot maUa one 6t^p till this matter be adjusted^
and go on with no trials.
8ir WittiarH Cavtntry. You have been told
vihai \\nA been done in the cane of lord Straf-
fbnL There was a committee then to consider,
whether to try him in the Lords House ; tor
mi id the Lordi^, ' The bishops will be absent,
* %i)d the hurons may sit upon their benches/
For thif< limt is the proper qucblinu before you
"was, * this slay,* stirred by your Committee.
lOne or two ot the lords sain, * They would
* moi-ti their House iu it.' I see no fruit of
voting any ihm^j, till you see how the Lords
l¥iJI """• ' iipiiU it, H'c' ' ■ 'l" *" -y
liuv JO from tl
afoi i ^ .,. It i» tiu ..... , ;..., ,w .-«.e
Vour coininillee at hberty to m*gc this to the
XiOriU to-morrou'.
i. The debate now ia
h IT] prnceedmg, &c.
'■\*: Lord^, or
»:*!. When
,4ri<icd, ' Whether the
Sir Iniutis
the juri!fidi€ti'>ti
I am unwillipg lo :
to let thetu huve a^
ttio quextiou WHS
• hi^ihnpK fihouh! w iihtlr.iw,* it uhjs nnswcrcd,
or Not
tands.
I^ru
* n
WC liujM jortk I'j Mi
that be a reas;oa iv\
ky countenance iii._
'd ill any mnUtrs ^
how far iIh* hi
tilo^. I pro^'
ition. Ifwewetii notco*
llffent tit li^r, we r. 1 is** tlie
1^1 ' ^iotU'i. VV|ii:ti Wf think of
th** Lxh, that thii$ h the copjcnt
< uU 1^ ui yinkc« i did not think thc^e
^ would ariH<^, Tltow- who r^ii^e ihriu
Will *\i) It for the: fi»elord» in tin " ■<
well «» I hoi lord. Th»^ to my on
ei1vod?( to »lt plenw, (ioHty or Not i^'^:iui> , lo
lit« mni thjitli, *No:* But tl* (rinlMti or not
.lianloft, * Yr«.' But no rely f' - ' ' -■
t>ettef verjved m thf nrt of <l
Tfirv will i:-.
tu tlittt,
a niuti
[knew t)i«
h tlib in all i:
I..VV h«iher id a pardon ouiy ,
A. D. 1678—1685- [814
or where life and death itt imniediatelv judgetL
If we meet witit tl>iR, it is our tnherrtance vro ^
ha?c in the methoiJ6 of iIim court to their pro-
ceediu|fs, as this is of jmlgmcnt, and we tnaj^ I
interest ourselves in it. ^|
Mr, Vuughan. Thfpi thing' is of that eon-
sequence^ and one of the fataJest and most
absurd things I ever saw. From EiU%, ti*9
time to the trial of lord Pcmltroke*, tb«
bishops never Mat in capital judgmentif and they I
hafeibrmerly mad*? a dt*clHration of purha-'
meut, that they oujjht not to sit. Thi* novelty
of the thing make^ me jealous, that it h for
some particular end of their owu. They ar^
judges for themselves in this matter, in thd'
Lonls House, and vote. If they were absent,
you would have auotlier account of it. They' ]
pretend to sit upon this pardon of lord Danhy^
and I pray Gotl. they sit not to pass judgmeaC^
upon their whole function !
l^Ir. Powle. The House is possessed of the
matter bnly, I will fspeak to the mttnuer. If
yoti dispute with the lords about rights and' ^
privileges of their House, it will be dilatory^
and I would not enter upon it now. This day
this proposal was made to the lords, and they
seemed to intimate that they would move it.'
If it prove contrary tomorrow to your desii^,
then I would confer with the lords about it.
But if they tell you, * The bishop5i will not'
* meddle with it,' you may then dcchue it»
You may instruct your Committee to in$i«l' ^
upon having a resolutioo Irom the lords t**
morrow. liut for to day, I would lay it
aside*
Hi r WitliofTf Co$en fry. I f M n ' H t n ii ie nt in it* j
to iave the lonls in the Tower, 1 iiiest
with the lords ujjou their jun i ihia ■
matter; hut if von put it as it is moved, ilwilf {
put an end to all tilings.
8ir T/tomat Lee, 1 do say, that, next to my
fears of the Pope's jurisdiction, I apprehend'
h ■ r the lords jurisdiction.
-rvcrdl, If in this case geDtlemen
i - more liberty than ordinary, you
•I them. If the hiahops tell you,
' •^^ .ihscnt/ doesthnt settle theju-
'•■ the point so that their volun-
1^'y^y doi'?< uot eulail thcif ju-
over.
iiie g-ivcnas an in^ttruc-
** tiotj iinitice oppointrd to join with
*• the ^ I' of lords, to consider of propo*
** fti|toiti» and cirotimstunres rchitiii|r to tb«
*♦ trial of the lords in the Tower : ll»at Ihey
♦* juMist upon it at the Committee, That the
** ]*KtU Hpti'ttiial ought tiot to have any vote in
< ri^ upon the im|teachiuentr'
;un the Tower. '*f
♦ See vol 6, p. 1310, of this CoUectioit*
' " ^' ' '•■:- ■ ■'■•' :r- — - th#
i lor
,. i. , , -,,-...,.
I *olc in lUe huttj j
rtj^flit to vote in all iji y.j >
I tb« ailowing^^ or not alkiwiog the pardon to ba
815]
1 JAMES 11.
Saturday, May 17.
Sir John Trevor reports fi-om the Com-
roittee of Lords and CommoDS, That the Lords
had communicated to the Committee certaio
proceedings of the House of Lords, which he
read in his place, in these words :
May 10, 1679.
" Resolved, &c. That Thursday next be ap-
pointed to begin the trial of the five lords in tlie
Tower, &c.
** Atler which Resolution passed, The lonis
spiritual asked the leave of the House, << That
tliey might withdraw themselves from the trials
of the said lonls, with the liberty of entering
their usual pmtvstation." And that the Com-
mittee of the House did desire the direction of
tlie House, how they should proceed therein.
Debate thereon. •
Mr.SacheverelL If I understand the report
ris^ht, this is clearly in contradiction to what
both you and the Lords have agreed upon your
liooks already. The point of time of trials
was the last thing to lie adjusted. I farther
observe, that the Lords have not in any
sort agreed that the bishops have no voles in
the trial of the tive lords. The Lords S|Hritual
are so far from it, tiiat they ask le.ve to be
absent. As to that point wliich the Committee
did insist upon, I think the Lonis have made
uo answer. 1 conclude, that the Lords appre-
hend, very rightly, that, should the Lords
gtM>d, was but a preliminary : And yet the
wli(de raifittcr was cone uded by it. Tne lords
Nottingham and R'lbeits argued for the bishops
voting. But the lords Essex, Shaftsbur}', and
Hollis, ucrc a^uinst it. Alany books were
writ on boili skK s, of which an account shall
be given ufteruards. But upon this del>ate it
was carrif^d by the majority, that the bishops
had a rij^ht to \nte. l7pon which the Com-
uionssaid, the^' would not proceed, unless the
bishops were obliged to withdraw dunng the
wliole of the trial. And upon thai breach be-
tween the two IIouKps the parliament was pro-
rogued : And sooi. alter it was dissolved. And
the blame of ihis was cust chiefly on the bi-
shops. Thetrulh W'i9,theydesiiHltoha\e wiih-
drawnjbuttheKing would notsuH'er it. Jle was
so sf.ioi'. muintainiii^- the pardon, that he would
uotveiituie such a point xm the votes of the
temporal lords. Ami lie tuld the bishops, they
nuist stick to him, ami to his prcrot>"iti\e, as
they would expect ili;it he should stick to them,
if they caw.c to be pushed at. i>y this means
thev were exposed 'to the i)opular Jury."
Burnet.
** It is easy to see, that all this contest
about the bishops vole arose from a pres'imp-
tioii, that their weight would turn the scale,
and that both parties were e<|ually cortuiu into
which It would be thrown." Ralph.
* Grey'n Debates, vol. 7, p. 29«.
Proceedings against Thomas Earl ofDanb^f [816
make a diflferenoe between the fife loHs nd
lord Danby, that would look too broad ia tbe
eyes of the nation, that yon 8(|MiIi1 not iigye
the pardon ; which I Talue more than aay in
lords trials. If these five lords only are tikn
out of the way^ and yon confirm this pardoi
to lord Danby, you make the kini^r abaobtc
Any man may then embezzle the king's re-
venue, ships, and stores, and may piMoee t
pardon. And what difierence is there betweei
that, and arbitrary government without liw.'
I would shew this to the Lords, as the greil
concern of the nation, and that the ComoMMi
will never give that |»ower away ; if they dn,
they are undone. If onoe you admit lb
pardon, in bar of hislice, against the ComoMai^
who shall call them to account, when tky
have a pardon to help them P And new jod^
will be taken to assist to make it goud, mi
there is an end of all. You have demanded
judgment of the Lonk about the panloo, ke.
and have had no answer ; and when tbe tral
of the five lords is over, they ^11 settle tbe
pardon (by the strength of Oaiiby's frwndiiB
the Lonls House,) and there is a precedcii
upon YOU eternally. No ; I would let As
Lords know, that we value settling this psrdn,
more than any five lords, and that the Cea-
moDs will not give theui such a handle ts »
do themselves ; and let it lie at tbe Lonls' doa.
And 1 would let the Lords know, * That it ii
' contrary to tlieir a^^eemeut, and tliat till the
* nature of tlie pardon be tried, we gum
* proceed.' •
8ir Robert Howard, What has been nil,
is so well, that I shall repeat no ai^mesli;
but I will come closer to the distinction thaii
made, and by that distinction it will auiCtf
closer to you, what the tbinic is. But MR
is a recedency in the bishops ; but tbe le-
eedingf is to such and such lords, but not s
lord Danby. When you sent up the iropciob*
ments, the rest of tne lords pleaded guikr.
or not f^uilty. Danby takes the choice W
another advautafi^e, viz. ' That of his pardoi,
* which he will rely upon.' You say iImo«
* That his plea was guilty, for he confesseidic
* chanre by pleadmt>f his pardon.' Upca
which you demand jiidfj^ment. It* his paraoa
be ^tM)d, he ha^ the benefit of it ; if not good,
nothing* remains but sentence. Now thii it,
by the recedency of the lx>rds Spiritual, a kind
of trial of skill. When the pardim ts ctwd,
ov not ficood, tiiere is a reservation of ^iijt 9
not ^ilty. This shall only in the con^ueiia
be to stay ju(!<^mcnt. This is a good way to
tie up all declaratory treason. J only add. if
this is taken here, that this is a plea iff parduS,
and by whi(rh Danby must staud, ibrn ibe
Lords Sj)i ritual ouj^ht not to be pn^ent. It is
plam that the bishops will sit upon this of tbe
pardon, and not on the other five lords, ticc
Vou cuf^ht to be clear first in this case. Vfc
take Danby*s plea to be his issue ; and if iO^
you ou^ht not to proceed till this isdetermiaed.
8ir Thomas Mercs. I agree that the biAafi
oujfhtas equally to witlidraw in ooa trill *
, filf] Jot High TreasotC
the other. I ai^^ree thui it t« the tnti?r»t of tliis
Houau anil £nt|;laQ(l tliat Ih^ {>ar<.lou Hliould
l*ot iitQiid gf>od, Theit ai'e sit l-mls cour^ern-
rU ill the trial, in tlie Lords Hoiisi*, tml the
bif^hopt Imvcr cumplieil wUli five of the six
to withdraw ; utid 1 mee n^thiitj; Uul tliJU the
Lords ticifT^c mav cftrn|dv wiiii rif^ecdibesix^ —
J da Oft ^ " '» ' '5' '* ♦^iciL" 1*0 shtu'ter way to
lie rid f ^ pardon. If 1 in r I}' and
reg^ubi ri^ny be tried, we may,
lor di> t* l*o[iery, go on with
Mr. Montagu. 1 huve been silent In tltis
nthtlcr i>f lord Unnby out M vchpcct to the
11 oufte, lest it ^hoidd look UUe (u it ate pique
agjLinFit liim^ Vf*. Ktit liiitre, hy his pardon^ 1
lt*f<rmtde • >> that iht' iiistice of thi*
tUkUQti witn »iid that by his ambi*
tjon hv way b< on lue saitie foot s^ill, to the
ruin o|' lUtr ntition, 1 won Id atit proceed to the
triul i»r the othi'i' liMtU till tins [*r orer.
Sir ii'klUani Vultrnftf. Till thisj fiardon be
judift'd, ymi ciin bn^e no fruit cd' itie trial
of the the I'nd-. \c. Jl ifiry get p»r<lons»
all your pioeeedinyfs arc to no purptise; thoiinjli
tficre i^ 5oine ditlVrcncc bctvvcc^n pardons, im-
pendinj^' nnpeachTtiful?«, and not impending.
if the1^iit|^ can pnnhuu i^c, there in an end of
w^\ your livc^ and hbeitie>i, till vou settle that.
Sir Wiiitiim Cotcntiif. 1 ditler, ^c. bccunse
the iuff ty of the nutiun de|>end5 ujxm a good
Crtrrespui'idiMice l»etween the two ijotiscs, I
am Afntid, if thif di>ipiite l^ inextricable, we
ftlmll have all the dUml vantage in the world
abrotid, who do not Me the matter so plain a^
we do, and •lo wilt luy the bbmc on us. The
power in judicature i^ always >n the Lordsi,
and iu bills we have an ecjuul povver with the
LiOidi* ; hut even in that, time and place art
in the brdsi nomination. If in a thiu;^ where-
in we are eo-urdinate with the lords^ they have
I bat power « it will be dnnt^rous to pusii this
▼ote* lS(C' Gcntteiuen would havetliis matter of
the blshooM clear — Thrust tlie neeille throu|fh,
ftDd the thread will follow * yoti will have it in
alL Divera bishops hate said, and do say,
' That if the pardon do dHerinine Ilanby'it
* life and death they will withdraw.* If the
].'' ' ' ' ttiine not that point, I am not sure
t\i [^as Qot a Kccond post to pas!(, to
pit.t ... tM> jijooccnce. Wli-' ■ ''• rudential
reason of JJanhy's t"ir*t < > i' — The
livelordii have been «rven or ^ ^.. .,. uth** im-
|iriftoned, and \vc aJier the Habens Corpu-jj ico»
• That the «uhjret Uiall not be without trial/
Shall we a«^vune that to nu^iielvi«i, and %i%Ui\
in that q-ap which thr Kin^ has no power to
do f KVdl the pr*
jnake Danh^S p :
eomea to h
Jonla pardon
would Ihj wj ■■aI
0anhv*ii patih'U,
cf.^ ■ ■' - ■' ^
ill
linat the itve lord*
, or w<%-Me, when il
i;ut ha»*' not tfie five
iiy Miy, Hut that thii^f/
pu,
\\.U
djy^iiid lijendj^htnnd^diutu will
A. D. 1678—1685. [8 If
lie on the bishopn. Whoever wishes the bishops
well, would ha?e them do neither. Tins willj
plain the way fur Danby'j* trial » <^:c. If wfl
i! i t e with the hnds, we know tiot hoipj
u dl iu^i^t upon the constituent poweic
III nicir iiouse; BO that if you wouhl i>eeun
your passage to all the rcsi, inMruet yottr lom^
mittee to a^free to the ttiai of the 'five lordf^
fin^t.
Lord CaventJUh. I apfr«c with Covcntrv,,
* That the nation expects justice a^rainst lU*
^ 6ve lords/ and n^uiiist lord Dauby »Ua : (Bjfl
the way, 1 think hiu\ as ^cuta criuiinuL) \V«J
arc tiot to eon^idet- what the nation expectj ^
but wLat the constitution of the g^ovennnent ia^l
Why was this Coinmittee appointed? Thi
f\v^ lords trials toay be tong^, and 1 know uo
what there luny he of proiog^stion* 1 uiovf
* That you will not atrvee to the triil of th^
* five lurds, till the vahdity of the pardon I '
* decided/
Mr. Henntt, The meaning of what is* don
in the Lords Houisc is to coseeu and cheat
of the rights of mut House, untl ui this it i
more than tlie trial of twenty lonis* The^
will put the pardon h\\ till the fire lords ar
tned« and so they shallnever l>e tni peached, iVcJ
My meaning is to impeach any lord that shalT
play the rogue wilti us ; 3. ou must supply th
Kitiir, when you have lords picked out, til |_^
lie fiani:ed for the ill they have done ; yoitC
fault is that you dtd not proceed unun tli«|
lord's stanipei) pardon hy creation, ^i heti thi
Lords feet the Couimous of Kngbnd, the
they will be honet!»t.
Mr. Vaughaiu The question is, * Whet he
» all criu>es shall l>elen^iiitoatnl and pardot»ed f'S
Which will be so, if this pardon stand g:ood«|
Siirae thinijs are laws, and as obligutory
statute law. For iustunce, the powers of par^
iiament are laws, but the e0eet of those lawtl
is ri^ht of impeachment, and that is your rit/ht^l
and if this pardon stand betwixt you and boin<iJ|
law and ail is {{foue. This is equal to an|f3
ihin^ whatsoever if thfxe be no puni«»hiiitnt tol
these crimes, that*tears you np root and braacbgl
and farewell all !
Sir Jo$cph WiUiam$on. I apeak to order.
8omc «d' ihesie points are not now in qacstioa^
belore you. If you go upon the pardon, (
the priority of the triul ot tln^ Lurd!i, that tl|
not properly th»^ iiue>tion. The u;Atler plainlj"
b«»fore you i% > Tlim the bi^ihops ou;;ht not |C
* have a vole in this psirdon.' The Lords say^
* They will sit oti Thursdiiy lo try the (ivi
* lortls / and the binhops Imve pr^^ed leaver'
the Lords not to he pi t i^ent tli< 1 e ; \\\y molio
is that you will ins.i."«t upon your ov^n as
tton, * That the biiihops ouj^ht not to be pr
\c/ And it rnutit Iwj eleap»fd Mi*te you ca
firoceed to th* trial of any of the Lords.
. no drci fjue^tion, but i
^>l ritifhi < Lx', the tbnrtbj
It ir^ jiidt/i'i, *nM
rdl ifiU be decided
-ML ma* *Mu iJt ir.uiiiy , tor all uiav bevoi«t*
by error of proccedmsf, of wUtcb ibire bate
3U
819]
1 JAMES II. . Proceedings agahist Thomas Earl afDanhy^ [S80
been several {irecedents. By that leave that ia ,
asked by the Lords spiritual to withdraw, it
implies, if not amoants to a proof, that the spi-
ritual I/ords may sit if they please. Get tnis
matter clear, and the other will follow : but I
am far from doin&f any thtnig^ whereby you
may h>sc your right, by implication ; it is af;
firminr the point q^ainst yon for ever hereafter.
In fufitia mortal pointu who shall be judges ?
—Contrary to that, tiie point is settled against
you ; therefore I would give instructions to
your Committee, to insist upon your last vote,
* That the bishops ong^ht not to sit upon the
pardon, &c.' and to desire the lords minds in
that.
Sir Edmund Jennings, By the arjoim^Qts I
have heard, it may be as well said, that the
other lords shall not come to trial, as Danby,
^c. and that Danby shall be a sacriHce of ex-
piation for the rest. It is said, * That the
* bishops have no ri^^ht to sit' And who shall
be the juds^es of tbat ? If Coleman himself
were now alive, he could not more promote the
dfsigns of popery than this discourse 1 have
beard. I more, ^ That you would let the
* Lords know, that this House will proceed to
' manage the chai^ against the five lords, the
* day appointed.'
Mr. Bennet, He speaks of * makinjOf lord
' Dauby a sacrifice, kc' Nobody said that.
The question is now, * >V hoi her pardons for
* crimes shall take nwny all impeachments.'
Sir Robert Curt: The words ' sacrificing
^ lord Danb^' are a little too hard. If the ar-
ticles be true ai[fainst him, and the pardon not
good, his pleading his pardon is a confession
of the charge. If he is condemned forcoufess-
ing his charge, he is not made ' a sacrifice to
* saveothei-s.' The question is, * Whether you
* hare ha<l satisfaction from the lords, ic'
Now the lords tell you, * That, us to ihe trial
*of"t!:o fiv«; lords, the bishops are conlciit to
* w iliidraw,* and your commititc was to adjust
the ri^lit of the thing. And \thereas it is
said, * it is easier to ^el the point of the bishops
* not judtjing the jmrdon, after the five lords are
* tried, tliau iH^fcre,' now you see plainly, that
the l^rds insist upon their old vote of the
light of tfic I^rds spitual to &it till judgment
be given ; so that upon your vote the Lords
say nothing, and the bihhops insist u|K)n it. 1
think this a new judicatiu'e, to take spiritual
liOrds to judge in capital cnuse^ and crimes.
The Lords themselves scilled the point, so that
this should be the last thing to 1)e adjusteil, and
they have made it the first. Those without
doors think Danby as deep in the plot as any
of the five Lords. Hiil what cannut be par-
doned if these crimes- pass ? How ap[M?ars it,
but that the five lords have pardons ? And then
neither you nor p(»sterity can be snfe. If you
settle not the i>oint now, I believe you will
scarce have time to do it a second time.
Sir Francis Winnington, I desire to answer
some objections. It may be, some things are
not fit to be expressed, but I will speak plain.
Jf nrecooMider what the lords have done, as to
the matter nf the biflhopv^ there ace two gmi
things before us. Lord Danby, the list par-
liament, ilesired time to answer. If e miden
himself, and pleads his pardon. Yon would
then know, whether he would atand to it ; and
he adhei-ed to it. When we declared, that we
were ready to try the five lorda, the last par-
liament, Jenninei says, * Danby is to be a as-
* crifice.' I do believe Dnnby one of the plot;
to seiiarate him from the plot, I cannot. He
took his advanuge to rise, by his interest widi
the Papists, and hath stifled the eridencc of the
plot. He hath pleaded bis pardon, in bar of
bis charge, and confesses all the cbam to be
true. Now the question is, * WhetGer yoi
* will do an V business, if such a thing buy
* over your heads, as a pardon in bar to an isi*
< peachment of the Commons of England.'*
Now, as for the priority in proceeding agiiut
him, the court always asks the nrascriitar,
' Which indictment are you ready with ?* IVbi
knows the evidence best to assigpo a time. It
appears, that to one impeachment a pardoa is
pleaded in bar. You have voted that it is sol
good. If the lords do think it gt>od, to wbtf
purpose should we impeach any man ebef 8i
that this is a biu^ger point than the trial of Da-
by : Here will be no impeachment for Cfv
hereafter ; it fell out first, how the bishopi
were concerned. It looks like a nice dUtioe-
tion, as if the popish lords should be foaiid sic
guilty, if Danby's panlon be |;pood. Thai, ii
to the trials of the five lonls, there is a dajw-
pointed, and the bishops sav, * They will witB-
* draw at their trials,' and, to be sore, Dtflkf
is not one of tlieita. They name the five Mk
Your committee answered, * That this is u
' answer to part, &c. but not to the whole.'
And had thev put Danby's trial sine die^ thej
said, * they nad no order to answer that.' Si
that Danb*^ 's trial is postponed. It is to do
purpose to prpceeil to any impeachment, liH
this preliminary matter be removed, that stop
all things for the future. After all prooeeilio^
are over, he will plead his pardon in bar. Bot^
says a gentleman, ' If the five lonls have psr-
* dons, it is the worse for Danby.' Can we
believer, that pardons will not be (p*anted, whes
we see it has {t>een granted ? It is to no pur-
pose to spend out time and estates, when a par*
don be thrown in your teeth; and there is an
end. ' It IS to no purpose to try the five lonU'
(the people will say) ' till we have assertoi
' their liberties.' And I believe we shall baft
logic enough to make the people uudcrstand ai.
that sent us. I propose, that yon will give.
your coiumittce instructinns, * Tjiat you havs
' had an answer in part, as to the Lords 8pi-
*• ritual trying the five lords, hut yon findps.
'answer to that of lord Danby.' Thegrest
matter, which concerns the government, b Uis
pardon of Danby. i desire that the niidoB
may be cleared, tnat we may have aatishedoa
in that point. It may be, tne bishops have ai
much. kindness lor the Popish Lords, as ftr
Danby, and ^ contra; fur they do not (it
seems) stand much to their roles. («C as
I
821]
far High Trtiiion*
stlnnd tifKit) live paiilon, and then I htiyc the
111, ' ' *^i you right ttit to the fii^e lorils.
5 Lee. The hit^hops will withilra^i
i»jt[i i : i^i to their n;|lit, ajj they ilid in
the i:;j '. StratTord. 1 aru suit*, the
jutnioQ 1^ MM -oil, ur outrht to be so^ and I atn
flure Huglaiitl i« uodonL^, thut dny lhi« is a ^ood
|iardon. But, sny^ a Ci'ulleniniif * there may
* he (lardoDJi c^rantc<l to the live tordii, betuixt
' jiid(;riieiit and excculinn ;^ hut the lord;* 8pi-
ntiial tdl yoUf they iaiD ;;o ah ay. Uow hhall
wo fintisfy (gentlemen in the countiy that sent
us hitlier f 1 ngree^ thut, it the fjrtivenimeut had
dL|)i iided, this fdot iiniyt have heen^ else yon
c<mld Dot have luisi^rteil this — Oateit aiid Jitdlow
die, and therein an end of your prosecutiou.
It tfiLoClhe mo^t d ' ronse<|uence in the
irorld tJint this (i.^ ) pun). If Danhy
be not tlie ereatur m luv (dot, hot the sup-
porter, let us he constant in our opinion.
V, < -.".fift. T lakf not whsU is moved to be
til i^t^nient wnv ^^ith the lords. If you
iiiLii. - -U-i ^. L>»r t^ronnif to iunist upon» consider
bow this communicntion of the lords has been
with yon. The lords say, * They have ap-
' |K»iutdil such a day for the trial of Danby aod
* the othrr lord^** A day after, you appoint
a^ to adjust the m:uiner, Sec, You
c*' ien the bishops preience^ &c« and
the louli, V i.tc, * That they liave a ri|jht to stay
* in court iinlil ficuience of q^iillty or not guilty,
f • *^&c.' I'hcn the lords appoint the five lords to
%9 trieil ftrikt, and settle no point as tu Uanhj.
> But to the trial of the live Inrdti, they t^'H you
that the hijihops have a^ketl leBve it> v^ithdruw ;
tj,p. „ ,11 ,.,.* \,.-, . .....nt. I would say, * That
* > 100 as t<» the hiHlnip**, in
* li _ - „.-. :, L nU,hul not ii^ to Danhy,*
Mi\ l*mii Foicj/, Tilt* bishops huvc voted, as
to this trial of the fi»e lords on Thursday next,
1 doubt, the k<rd^ in judii'iittue uill stajitUtitfly
upon their iwints, which th«*y al w ays do. 1 thint
you have^ not yet made an order' tor the com-
luitli'c to insist II poQ ytior former vole, as to
* COUlf, 'l*j
P>^'"^'
oJi'.
will be of r
ftuay of mu^
..Ci
e at the trial of tlie panlon.
/. I think it not the ^umtioo,
"ords be tried first/ hut
V of the tmriloTi, to pre-
-rea of It ibr tUe time to
It upon iwo g-ieai thinffi:^
«.i , .jihc^iltouing ifreivt men for
and you had blotter pnrt with
ivlijt/ iiitnii'V, than thai, Vou
•ur power l»e taken
_ iiice$ ill the govern-
ment. 1 hiH ts the great pfiint, and 1 move it
forinstrtictionatolheeoiiimittec, 'Thatitilt this
* I' I tiled, vou csmtiot proceetl to auy
. r.'
31 r. /Vit/f. I cannot a«[Tet\ thut this answer
of th« lordu isi satijdactorv to votir prupoftitious.
Th' ^ ' • . ^ ' ' \ ' - ' ' ' . -n.t,
|ij the lori,* fuiiy tell you, ♦ Tlii» t in
^itiidraw i» not •ccvptcd,* and m- .*,* y m^y
mil *&d if the Hpirittiol Lords do not ask it,
A. D. 1678— 1685-
(he Temporal tjordu wHI not give k ; nod
' where you ^vei-e before. At lor*l
s irialj the Sjiiritual Ixmls fieni you
woifi, xuiki they woidd withdraw; now, tliey
wilt ask leare to withdraw. The lords hiive
oot dealt \»ith you according to iotercounse of
partiiunerit. They tell you^ * They uill not
* proceed to trial /\'c. tifi all mattere are ad-
* J Ob ted,' and now thay set down a peremptory
day for trial of the five lords. I move, * That
*• the lords may be desired not to appoint a day,
* till all matters are a*tjusted,* Ir the Lords
win force a dispute upon us, and cram it down
upon us, Ihcy may, but let us not give them oc-
casion, 1 would only desire their vole to be ex-
plained, as to the Lords Spiritual, &e. and that
they would not proceed to trials till matters an
adjusted.
."^Ir. Hampden. For instnictions to the Com-
mittee, I uouhi have aatistuction, an to the
hishofis, iVc. before we prt^ceed upon Oanhy^s
Trial. Vou were some time before you liad
the honour done you to have a Committee of
Lords and Commons for adjustiug^ matters, 6cc«
The mailer of the lord Steward is well adjusted.
The next thing is, that oi* the bishopa being
present, which i?i more in relation to loi3
Danby ^s pardon than any thing* else. The
Lords said, * The bialiopit »hould not be pre^
* sent at the judgiucnt of Death ;* but when the
Committee urged that of their presence \n the
judgment of the pardoti, the Lords say, * They
" hiul no power to debate that.* ^hen youpro^
ceeded to vote, * That no bishops ou^^ht to bo
* preaent at the trial ot the pardon,* and the
Lonls gM) tjuite out ot tlie way of that, and teil
you, * That the five lords are to be tried ou
* ThurMlay, and (hat the bi$ho{>s shall ask leave
^ to withdraw.' The lords disiiuguisU the case*,
and naturally have brought yott to thU, aud
had appointed the time for Danby, (Sci^. before.
This 1% not expressed, that the trial of Dauby
is po!jtpOQed» hut plaudy in j plied. 1 respeelb
not Dauby in the matter, Sec. but the busineiil
of the pardon. If it be &o heavy a thing thiftl
nobmly can hear it, yet rf the pardon he goodp-'
what can the nation hear ? This matter of tlie
Lordf Spiritual, Slc. is less understood, because
it is less explained. What if there shonUI
come a prorogation, how will you dispute the
pardon then, and Mr, Uertie'ii Itook, Ace. ? I
can nee no hurt in pressing the turds to go up
the pardon lirst. T woubl therefore plainljl
kntrw the hishopn mind aa to this of lord Dau«
hy's pardon, 6cc. and then proceeil toihat q'
their withdrawing at the tryal of the citbi
Lords.
Mr, Gurfomuy, By the hint propofiitiod
there is no danger of meddling with tne lord ^
judicature. The LorcN cannot he an^ry with"
a. All England is too heavy » weight lor tlieiia
to hear.
Sir Nicholas Carfv* The 5ve lords would
ileNtruy the nation one way by Popwry, aud
lord Dunby anothrr, by a standing ann v. and
J>eu«30us to parjUjiimeut men, tod would
ivcr u« up to Fmice Chat «ray. He thai t
823]
1 JABIES n. Proceedings against Thomas Earl afZkmiy, \iaik
away our money, takes all, and he is as cul-
pable as tlie five lortls. If you decide not this
matter of the pardon first, you may be sent
ht>mo before you decide the o*ther.
Mr Sac hex fr ell. I would not give occasion
of dirtert'iice betwixt the two Houses, but 1
wonld prcseiTe our right. 1 like wiiat is pro-
poned, i would know whether the lords will
Iin>cecd upon the pardon, and would have the
iisho|»s explain themselves. You have de-
mandtd rijjtht ai^inst Danby, and the lords
cannot tji'ive judgment, till you demand it, and
so you cannot proceed upou the other lords till
then.
Resolved, " Tliat it be given as an instruc-
*' tion to the Conmiittee, To insist upon the
** former vote of this House, That the Lords
'* Spiritual ought not to have any vote in any
*' |>i-oceedings airtiinst the k)rilsiu tlie Tower ;
*' and whrii'ihat matter shall be settled, and
** the method of proceedings adjusted, this
" House shall then be ready to proceed u}K)n
'^ the trial of the pardon of the eavl of Danby,
*' aguinst whom this House hath already de-
*' manded jud^j^nuiit ; and afterwanls, to the
•* trial of the other live lords iu the Tower."
StiturdMi/, May 21.
Debate on the Earl o/'Dunbys Fka of Pardon.
Mr. SacheverelL If you allow this Plea of
Pardon, > our lives, liberties, and all, is given
up. I move that vou will stand upon the vindi •
cration of your right, and send a message to the
lyonls, 'That, till the niatter of Danby 's
pardon Ic settled, and that of the bishops, &c.
* yon cannot proceed.*
8ir 77i!'/ff/.i C/'W'irts. I move that the whole
Ilouso may j;(» up to the Lords in a l)i»dv to ro-
presrur this maiti^r, and to demand justice
against Danliy. This u ill be so public a thing,
that it will tend more fnr your advantage.
Rlr. Foufr. I altciuiod the Counniltcc of
Lords a!.d Couiuions yc!»t;.'ri!ay, and *■ the pa-
* pers the Lords delivered us,' vie. said, * We
* received only as pn)p(«sals ; though the lords
* were not so kiiifl as to answer our proposals,
* yetllKit wc should thi'iis.' And if \ on please,
give dirtclifiiS. to have \\ hereby to answer the
lords in what may arise.
31 r. (rurroaaj/. Consider the consequences;
now to change councils \i()uid be but a vain
thing. TlKr«::'o:e [ would have no other (jucs-
tion put, hut to insist upon what vou t'ornierly
rcsolvvvl as 10 the birds ^ninlual, and to give
instrurlion to your connniUce to make no
ans\'.*»r to the loi<ls prepositions yesttrday, till
%ve rtct'ivp nu answer Irom the fonls concern-
ing the lords spiritual. 1 am i'or drawing
TcaM n*^ nod ri*)>rcsrntalions <if your proceeil-
ings to the lords. IC the lords will deny us this,
and go to a new way of judicaiure; if it must
be a breach, let it Ih> a breach. I had rather
the tive lords shcndd esca|H% than that Danby 's
pardun hhould stand uood. il' it (Iocs, vou
.com»: here lor nothing, but to give up the wfiole
Jlegulutifc authority. (Yesterday, we bad «t
sad example of pensumerst dee. If their bumi
rest upon your books puUic, nay, thou^ \m
take care to secrete them, the people wdl poll
them to pieces.) I wouki iiwist upon \Nr
right with reasons, and hare tlieni printed.'
Mr. Hampden. I ehotild be sorry if tbc
House was afraid to do its duty, for fear of i
prorogation. When I hoard of ' a stamped
* pardon by creation, &c.' who knows bullbe
five lords m the Tower have such a imrdon? i
hundred Papists at Rome may pretend to nidi
a pardon. J hope you will settle these pointi,
and insist upon this'uf the pardon.
Sir William Hickman. That matter of tk
panlon has been so long and fully debilfd,
that 1 woubl lose no more time about it, butkl
the Committee draw reasons, &c.
Mr. SuchcvfTflL 1 propose that you voiU
resolve that an answer be returned to the pern,
about the trial of the lords, with Reasons whj
you cannot proceed, Sec. and appoint a Cod-
mittec.
Resolved, ** That an Answer be remmedto
" the last Message of the House of Ftm,
<* tonching the appointment of the trial of the
** five lonis in tnc Tower, to be on Tuadw
<* next, with Reasons why this House canM
'* proceed to the Trial of those live Lordt,k-
*' iiire .Tudgment he given of the earl of Du-
*' by*s Plea of his Panlon ; and the poiat ofik
^' Bishops not voting in any proceeoiogs ii|N
*' impeachniL-nts in capital ottences be settW;
** and the methods of proceeding^ adjutferf;
** and that a Conmiittee De appointed topRfR
*' and draw up the same."
Monday^ J^Iay 26.
Mr. Sa( hcverell reports, from the Comoittei
appointt'd to draw up Reasons, Why the Hobk
of Commons cannot proceed to the trial uitk
lords before Judgment given upon the earl tf
Danby's Plea of liis Parflon ; and the |ioiDt il
the bishops not voting in any of the proced-
ings upon impeachments for capital olTeq^
and the metliods of proceedinjgs, adjudcd;
That the Committi*e had agreed upon tt
Answer to be returned to the las»t Messaged
the House of Peers, tonching their a|»poiaC-
ment of^the trial of the five lords in the Towff
to be on Tuesday next ; together with KeafOBi
for their insi.-stmg upon their former vole:
which he read in his place ; and afterwardi^
delivered the same hi at the clerk's table:
where the sante were again read: and, vilh
sonic Amendnii-nts made at the table, uponlhl
qu( »lion, agreed ; and are as itdlovteth ; vis.
'* The Connnons have always desired tball
good correspondency may be prtrscr\ed betncQ
the two H OUSTS.
''*■ There is now depending, between your
lordships and the Commons, a matfer ot tbi
greatest weijiht ; in the transaction of wbicfc,
your lordships seem to apprehend SOOM
difficulty, in the matter projuised by the Com-
mons.
** To clear this, the Commons have
this conierence: and by i(they hope loi
>
&i]
Jot High Treait^n*
A. D, 167
-1685.
■t to yoi\T lon)»lii()9, tliat the (ii-opOBilions
Comnriiiav, In rrbiion to ihetnitl «t ibc lonJs
in tiie ToH'er, licivu boi^n ouly sur-h sts hn«e |
been weU u arrtinled b)- ihe luw« «>t {Mrtmivient, i
And rotibLithtiuii afiliv go^irnitlPiti ; ami in no i
*ort intreiirh u|M>n ih«:' jiuHcature oi'tiie j»eere;
but sire uioftl novehtury (o l)€ iiist»Ve<l u^mmi,
thai ilie ancirhi n^liiK ot'judtcuture in {NLrlia-
tiu'tit Uk^iy b«; tuaitiuineil. >
** Tiie Commntis n adil y acknou linl^e, iKat
Ihc criiiU'fi cliiiryeil uf*on the eurl td' Pun^i,
vis4Miitin Slal^'urd, lord iVliTi lord Aniiulell of
'Wardoiif, atid loj'd Beit;i*iiji, are of depp ^uilt,
atid laU i<»r t^pefdy jiiifttice : but \uuiai, tliey
hold auy chur);;e iti judk-alurp in [»«rri«mriit,
jujuIc t^ttliotit cDtist-m in (nil prUumt-iit to be
efp<^Qiciuti9Con9bpqucncejK>lli to bis inajt-<tjf
and Um ciubjects; and iHiiiciivo tliL-niHiflveii
nbJi^fil to triitisiuit fn tlieir |i4iiiferity utt tbe
wifihU^ whicU, of thb kiud, ihey have ve-
ctiicJ imrn tUeir ancctitoi^, by putting yoiir
]otd*diHJs m miud of the proirrrss that tiutli nl-
feaity oe«ri beiwt'eti ttic two Houies« in reta-
il on to the pro |»oAi lions iiiiide by the Commons^
and thr reai&otiAhleneijs of the pro poKi lions
Uterii'iclve.s : ihey doubi not lo mak*- it appear,
Ibat ihtir aun haih brtu no other than to avaid
eucb ewnsecpji'nce, and prestrwe such rig"ht ;
and t!^at there i^ no delay »f justice on their
part : and, lo that pnd, do ofler to your lord-
abipc tliceuMiintf reasons atnl narrative:
** Th«t the C<immunS| iu brinifiog the earl
of Dauhy to ju«tiref «ind discovery of that
execrable and traittrrotis couspiiacy of which
the five lords now i»tund iiiipfuchcd (atid fur
^hich aomc of their wicked itceomptiei*^ have
Ift'ady undercrotie the senien^ e of the law, as
iTattDi'i ntul MvardererR,) have bhoiireH luider
great diffictdties, is not unknown to your lord*
mUi[w : that, upon the im(HNicbni«nl of the
IIou^otX.*t>(iiinons ajftiintt I e earl uf Lhinhy,
for high-trtrtioo, and other h»;;h <Tirnc«» lonj-
deineanorMf aod offfni^etj, eien the eominou
juttlice of veqiiesterini^ htm from parliament,
mnd ft»rihwtth com m it tin '4 him to safe euf^tody^
wa« lhr-ore<iuircd by lt»e i'omtiJon*<, and deraed
by tlic IlouiKe of fW h ; ilioiti^h he then <<dt in
titeir Hou&c; ; of whieh your I0rd5>.hips have lieen
»o sensible, that, at a free erinfcrence, ibr tOth
of Apnl laM^ yoor lorflahips fkriareftt thai it
VfUfi thr ri^ht ol tlie Coiuuioits, nod Hell war*
rautt'd by precedenU of former Rj^r^t that, upon
itiipeiuhrTicnt of the i'omrin'iit, n pe^T,
imprnchcilf ou!,fbf of ni^hl to be ordered to
With«lraw ; and ihro to U: eoit) fin tied. And,
liid a*n that jiintiee been den^rtl to the Com*
tiiotj^ta ^reat pari of ihi5iieH*ioii!» of |iaflirimi-ntf
%^lMt;h liMt lit<'n *ptrii ill trTifiimc* ^nd «djoHt-
ing' A bill Un euuMii^ tlic< rnrX of Dnuhy fo ap-
|K»ar, iinil fiM*iwpr that jnsiiee frt»m whirh* he
wa*( ttrd I h:td hrrn Kaveil ; unil had Who i«m>
pb]\4'4i for the pfi'HCnAaijon of Um iniyeHtyS
perMr. , and tl^e m-curity of the mttion ; an i in
proMCMlion ofiheother ihv bnda: neither hud
br had toe opportutiJl\ of priM'unoff for him-
^mU tliat itlcgat jiardou, wbicb bear* date ibe
IstofT^Iarch last past; and which be h:iih
now pleaded in bar of this impeachment ; nor
of wutting ol so g'reat a portion of the treasury \
ofihe km^'dom a« be halh done, nmce cba '
Commooii exliibited tbeir articltis of impeaich^j
men! atruinst him. TJ
*^ After which time thus lost, by reason of]
the denial of that jiniiire tvhich of ri^bl be- |
longed to the Comiiions, U|)on ibeir impeach*
tnent; the said bill bemijr ready lor the royal ^
assent, the earl of Danhy surrendered himaetf ; I
and. by your lord»<hip\t' order itt^ the 16lb orl
April U&t, wait commiiied to the Tower : al\erf
which he pleaded the .van I panluii ; and bemfpj
pres&ed, did at length declaret that he would I
rely ui»on and abide by that plea. VVhicllJ
pnidon pleaded lieing ilte^^il and loid, and
ou^hi not to bar or preclude the Commans froriil
fiavtn»( justice u)HHi their impeuclin»tnt; theif]
did thereupon 1 with their Speaker, on the 5tQ4
of May instant, in the names of theim^elvea* J
and of all the Commons of Eti^land, demand]
judi^ment against the said Karl, upon their in
(>eacliment ; not doubting but that }X)ur lord*1
ships intended, in alt proceedinsfs upon ilie im*
pea< hment, to follow the usual course and ina«
ihodiiof pur li amen t.
** But the Commons were not a little sue- (
prised by the message frotii your bn-ifshipn, de-
livered on the 7th of May ; thereby ac<juaint*|
ing them, that as well the lords spiriiuul,
temporal, had ordere«l» that the lOlh of May J
inistiiiit should be the day for hearin*^ the earll
of Danhy to make grood hin plea of pardon ^ j
and lb at, on the J 3th oi^ Miiy« the other FivM
Lotds impeached should he hrous;ht to theifj
Iri.il: and titatyour li)rd»bips had addressed tul
his inajeMy* lor naming a LonI Higb-^Stewaf '
as welt in ihe case of the earl of Datiby^ as
the other Five Lords*
^* Upon connideratioD of the «aid menag
the Commons found* that the admiiling th
fords spiritual to exercine junsdiction in thes
cases^ was an alteratnm in the judicature tttl
parliament ; and which extended ms well to lh#I
ptoceediniTK against the Five Lordt^, as ii(fAinfl|
the earl of Dariby : and that, if a Lord Hi^^h*
Stew ii id be necessary » upon trials on im{ieaoli«
mentA of the Commons, the power of judieatnrej
in parliament, u^)on impeachments, ong^ht bsl
defeated, by ituspendin^ or den\injr * coin^l
iiiissiitn to eoie^tttute a Lord High-Steward.^l
And that the said days of trial, ai»po(nted b|
ycmr lordship*;, were so near to tne time
your«aiil me^<^a|re, that the matters^ and tin
ineilMMfs of proeeedini; a o|K)n the trials, couT(t'
not \*t ailjujtted by eonlerencea between tha
two Houses bcfuie the day nominated; and
eon*(icquently the Commons could not then
firoered to the trial, unless the zeal which they
tad Inr fipeedy jinljyfment ar^ain&t the earl of
Danhy (that mo tl)e\< mitiht procee4l lo itic trial
of the other Five Lords) mi^ht induce iln^m,
at this juncture, both to admit of the enlar^-
• 8ee the Case of earl Ferrtra, a,o. \U
io Ihia Collectioo*
SS7] 1 JAMES II. Proceedings against Thtmua Earl ofDanfy^
ment of your lorcbliipn jurisfliction, and sit agreed on; and, io eflcvty laid ariile that can:-
down under ihfme or many other hardsbipA ! niittee which was ooBatitdteil' fin* pmcningk
(though with the hazard of tlic Commons'
|iower of impeachmeut tor the time to come)
rather than the trial of the saiil Fife Lords
should be deferred for some short time, whilst
these matters mrsrht be acfrecd on and settled.
*^ For reconcilinc^ diHen>uces in these great
and weighty matters, and for saving that time
which would necessarily have been sitent in
debates at conterences betwixt the two Houses ;
and for expediting the trial, without g[ifing up
Ihenower i»i' impeachments, or rendering them
inenectuul ; the Commons thought fit to pro-
pose to your lordships, that a ^committee of
ooth Houses might be apiK>intcd for this pur-
pose : at which committee (when agreed to by
your lordships) it was first proposed, that the
rime of trial of the lords in the Tower should
be pntoff, till the other matters were adjusted :
and it was then agreed, that the propositions,
as to the time of trial, should be the last thing
considered : and that the etfect of this agree-
ment stands reported upon your lordshi|)s
books.
** After wbich, the Commons communicated
to your lordships, by your committee, a vote
of tlieii-s ; viz. That the committee of the
Commons should insist upon the former vote
of tlidr House: and that the lords spiritual
ought not to have any vote in any proceedings
against the lords in the Tower : and that, when
that matter should be settled, and the methods
of proceedings adjusted, the Commons would
be then ready to procred upon the trial of the
panlon of tfie earl of DRiiby, agninst whom
they had before demandtd judgment ; and af^ter-
t\ar<lM, to the trial of the otiier Five Ixtrds in
the 'i ower : whirh vote extended, as well to
the earl of Danhy, as the other Five l^^rds.
But the Commons as yrt rcroivod nothing
from your lonlships towards an answer of that
▼otc, sa\e that vo«»r lordships have ncquaintrrd
them, that the bishops have askal leave of the
House of Peers, that lliry mii^ht withdraw
themselves from the trial of the said Five
l^rds, with liberty of entering tlicir usual pro-
testations.
" And though the Commons have almost
daily declared to your lordships connnittee,
that that was a necessary point ofri^ihtto he
Sttiled before the trials; 'and otlered to debate
the same ; your comrnitteo alivays answered,
That thoy had not any power from your lord-
ships, eillier to confer upon, or to give any an-
swer coiieerning that matter: and yet your
lordships, wiihiMit giving the Commons any
satisfactory answer to the said \ote, or per-
mitlioir any conference or debate thereu|>on,
and contrary to the said agreement, did, on
Thursday the 11th of IVJay, stud a message to
the ('omm(»ns, dcrlarin'.;. That the lords j;pi
ritual, as well as temporal, had ordered,- that
the 27th of this instant May be appointed for
the trial of the Five Lords : so that the Com-
mons cannot but apprehend, that your lord-
Mb/pH bdfif not ooly departed fioiii what wai
good nnderstandnajg botwizt file twoHooM^
and l>ettor dispatch of the wdglity ■fliin no*
depending in parliament; bat nmat'needt ood^
dude, from tiie said mesnge and Tole of Mr
lordships, on the 14th of May, that the M
spiritual have a right to atay, and tit till tb
court proceeds to the vote of GuifUr or N«
Guilty : and, from the bishopa asking' lea?e (a
appears hy your lordslrira booln) two diji
after your'saifl rote, that they nnight witbdmt
themselves from the trial of tjte aaid 1or4
with lib^ty of entering their dsoal proteMP
tions ; and by their persisting atin to go ai;
and give their votes, m pmoocflingt opoa A
impeachment ; that their deaire, of leave li
withdraw at the said trial, is only an emiic
answer to the forenientioned vote of the Co^
mens ; and chiefly intended aa an argmcd
for a right of jaflicature in prooeedim spa
imiieachments ; and aa a reaoon to jo^gedT
the earl of Danby's plea of his pardon; ■§
upon those and other like impeachmeuti; if
though no such power was ever dahncd If
their predecessors, hot ia utterly denied by Ik
Comnsons : and the Gommona are the nAi
induced to believe it so intended, becaaw A
very asking leave to withdraw aeems tt^infly
a right to be there, and that they cannot w
alKicnt without it ; becaose, by tliis way, Ib^
woulil have it in their power, whether or ■<
for the future, either in the carl of ]Wdb)*i
case, or any other, they will ever ask Icavt A
be al>9ent ; and the temporal lords a likepoviir
of denying leare, if that ahould be admitti
once necessary.
<' The Commons, therefore,^ are obliged sd -
to proceed to the trial of any of the fin
lords, the 27th of this instant May^buttft
adhere to their former vote : and for tbeir
so doing, besides what hath beca now §ai
formerly by them said to your lordsfaifi,
do offer you these Iteasons following:
T. '* Because your lordships bate recafcl .
the Earl of Danby 's plea of his pardon, with s
verv long and unusual protestation ; whetik
he liath asj>ersed his majesty by false sim»
tions; as if his majesty h*ad commanAder
countenanced the crimes he stands cbamd
with ; and particularly suppressing and m-
couniging the discovery of the ph>t, and endea-
vouring to inti*odu<:-e an arbitrary and tyrannied
way of govemmeat: which remaina as S
scandal ufHin record upon his majesty, tendia|
to render his person and guven'inient odioiiil»
his people : against which it ought lo be ths
]»rineipal care of iMith Houses to vinfTltatfehil
majesty, hy doing justice upon the said earl.
1 1. <* The setting up a pardon to be a bar sf
an impeachment deleats the whole use lal
effect of impeachments : for should this poUl
be admitted, or stand doubted, it wodldtotdj^
discourage the exhibiting any fof the Ivtnrai
whereby thechief institution tor. jtho
tion of the goreromeat wodld '
\
w.thtmmeint'
t^ if tMi \(ii
Jot High Trtatcn^
i cotisci|U«istl3r the et» vera taeiit itaelf; vad
rtbre tlir * " '' ! * M ' in
('tliii^fice t lit
be l!elf*ri*liiir.i m j.fit ^w^i vm imc ^Uiii i iVQ
onUt whirK la but their particular case*
e your
filthy do, ot ihi nt
|inncc krnofC- Vi
luadeii) thib Ululi, ut hit* iuj«»wer to tlie itiiie-
teeti piojioi^itiuus^ofLkoili HutuscfSorParJiamenl:
wlierein, stating tlie scvenil parts ot'thtfi reg-ii-
Iffled luonarcliy, he wivs, * Tlie Kinyf, the
* Hinw€ of Lortls^ and ill '' '' s,
* harceacfi paiucular pi . t
thiise Mt:' ' ' '"nif to Ml"-" h\v^, \h: iri_-w\»uii
pQm^i' u\ l; : after the fiitmjeratin}^ of
i^hich, aiMj vu.ti uis prcragativcts, hms!i|<i ma-
jr^y aiid!5 thusaji^aiti, that * the prince may not
* mitkt ui€ of ihi^ lii^ti and prrpcliiul fiower,
* to the htirt ol' tUot^r fur otiose good he hath
* it J ajid iwikc use of the name uf public ue-
* ocrssity for the i^i^in of his private favourites
* md ItjUowers to the detriment of his f^uplc.'
' ^^ 'ilie House of CoiDRiaQa (an excdlent con-
a^ver of hberty) is aolely entrusted with the
find propositiona eonceniing the levies of
monies; mod the irapeaching^ of those, -who^
far tlietr own ends, though countenanced by
any liurreputiousJy n^c^tcn conmtand of the
king', hare violatctl that law, which be is hound
(«hen he knowa it) to protect ; und to the
protection of which they arc hound to advise
tfim, at leaM nol to serve liim iu the eonlrary :
*^ And tfic liordSf being; intrusted nith Ine
judicatory jKJWfcr, are an excellent screen and
batik hpt\*eeu the princM and the |K<>ple» to
■aaist each D^rainst any encroachments of the
other ; and* by just jud^rnient, to preserro that
)aw which oiij;ht to he the rute of every ooe of
the tlrree*
*♦ Therefore the power, lecally placed in both
SHo«*ae«, ii more than suHiricut to preserve and
ain tlic powir '
t ** Until tin ^ of England have
L done il I luis idea of pardon,
tlicy may jit \i^tni^ tWt the whole
' " ■ ^ •*• in the case of the Five
• d and defeated by pAr-
I nt is virtually the voice
i'litjti tif lliis MiiL'^lom,
oh
III a:»cry m*- '■'■', ■'-•'':
I It would pi^ote a nmtiur ul tU lousvijuitiec,
\ the urti^crNality of the peopk- should have
kion niiniMi'r«« and continu*d lo tbeiu, to
[fipprehen^ite of utmost duiitjer from the
vn, whereby they of right exjiect preaerva*
^»<Th«r - - xhihited At ' f T
chment r curl of I '
whtre-
■ :.:.., ^ ., J ..,..,; the trial
ie aaid end bcibrc tluU of th« oth(^r Fit e
A.D- 167«— 1685,
[830
Lords ; now yuur lotdshipa having* sinoe in-
veriedtV ' V* J sa greater ' ' ntjitoi,
the III i[js^ and lo usy
in the iicnts ui ^u iiie ComDu^na <ji i-u^ijind,
that« if they tihould proceed upon the tnal ot*
the said Fi^c Lords in (he first place, not only
jufitice would he obstructed iu the co^e of those
I^irdji, but that tliey shall never have right
done tbein iu the luutter of the plea of pardon ;
which '\H of so fatal consequence to the whole
kin^dotnf and a new device to irustrate public
justice in parliament.
^' Which ItrasoDB and Matters being duly.
wei^he«l bv vour lordships, the Commons doubt
not out your Lordships will receive satisfaction*
con ecru J n^ their propositions* and proceeding's ;
and Witt agree, that the Commons oui^ht nut,
nor cannot, without dc>scrting^ their trust, de-
part from their tbrmer vote comuuinicate.d to.
your lordships ; * That the Lords Spiritual
* ought not to have any vote in any proceedings
*^ against the Lonis in the Tower. And, \ihen
* that matter Bhall be settled, and the methods
* of proceedings ailjusted, the Commons shall
' theu be ready to proceed upon the trial of thd.
* earl of Danby, against whom they have al-
* ready demanded judgment: and afterwards,
* to tho trial of the other Five Lords in the
* Tower-' "
Ttiesday, Jfay 27M.
The Nitrralive and Reai^ons delivered at tba|]
Conference yesterday with the House of Com*; i
mons were again read in the House of Lords,.
and after a long debate, the Vote of this ilonse^K
dated the ) 3th of May instant, and theeicpla^^
nation thcrf?upon, dated the 14tli instant, wc
read. lUid the f|uestion was put, * Whether to >
* itisi^t upon these Votes concerning the Lords j
* Spiritual*, and it was res(u'/ed in the affirma-
inr lh^^('r'Afvs. rtri sint, Buckin^4iam» Huu*
\ lisburY, l\ R. Bedford,^
\ 4er, North and Grcv,.
Sulfolk, J, Liivclace, Townshend, Herbert,
firav, Stamford^ Newport, Say and Seul» P.
\^ hurtou, I^icfster, Jicarsdale, Stratlbrdp ,
I>erby» Uelamer, Howard, Paget, Clare, Sahs^ij
bury,' Faleonberg, Windsor.
The same day iIip Ring came lo the HaufieJ
of Lords, and in the followiugf short speectp J
prorogued the parliament :
** My Ijords and Gentlemen ;
" I was in great liopes that this sessiou^
would have produced great good to 1 he Ung-|
dom, and that it vould hive gone on unani-
roousl V for the jrood thereof. But to my gre;*'
f:rlef. 1 aee there are such diiFercnces betwecill
the two HouKe.^, tltat 1 am afraid very ill ef-.]
fi?r.t9 will come of them, I know hut oni
way of remedy for the present, a«sn
that, in the mean tinic, 1 sball s*h"
* - h the same zeal I met >. . i.
my Lord Chaticellor, 1 cotntuand
,1 > ,ra ,,p ,t... ,■- ' ..,-J.m..jI t nn '■*
ULslonI v<Hf ued the par •
liamciu iu ' ^t Hut be*
fori^ thai doy, it waa dia*oived i^y proclamatiou.
831]
1 JAM'ES II. Proceedings against Tkanuu Earl ofDamhy^ [8tf
'* When tire resolution to proropfue the par-
liament was taken, it was also resolved to pro-
cure the sanction of council for so bolil a mea-
sure, which, it was thou^fht, would be obtain-
ed without any diiEculty ; one half depending^
nn the k\n^ by their offices, and as many of
the rest beinj^ under the influence of the Tnum-
▼irate, (lords £ssex, Sunderland, and Halifax.)
as, joined to the others, made a sure majority.
Unfortunately, in the midst of this sa^e dispo-
•ition, the court was alarmed with the sudden
news, ' That there were remonstrances (says
< sir William' Temple,) ready prepared in the
* House of Commons to inflame tlie city and
* the nation, upon the points of the Plot and
*- Popery ;' or perhaps according^ to the Intel-
'•ligence sent oy Mr. Algfernoon Sidney to
Mr. Saville, ' That an address was framing in
' the city, sigrned by 100,000 men, giving-
* thanks to the parliament for their vigorous
< proceedings in discovering the Plot and op-
' posing of Popery, and promising to assist
* them in so doing with their lives and fortunes.
* U[ion which the king and his three wise men
* were struck with such a panic, or affected to
*he so, that they would not trust the very
* council with their fears till by the proroi^a-
* tion they had got rid of the danger.' Ac-
cordingly, on the very morning that these
dismal tidings were received, his majesty went
post to the House of Peers, almost without at-
tendanu as well as advice, their lordships bav-
iog scarce time to robe, or the Commons to
make their appearance, and with mure brevity
than accuracy, expnssed himself, 6cc, (as
above.)" Ralph.
'* This prorogation caused infinite astonish-
ment and 00 less indiffnatioa to the Exda-
sionists, who ezpreaged their reventnmitsakmd,
and without reserve ; lord Shaftsbonr bfauKlf
being so far transported, as ercn in Ibe Haai
to threaten, • That he would have the bcidi of
« those who had been the kin$r*s mdviscn m
* this occasion.' On the other hand, ik
friends and partisans of tlie duke
much oveijoyed." Temple.
** The city of London, where iStim i
party was very strung, to«»k ao ^reet
at this, and were ao very anyry, that it «■
thought they wooM have riseD» hut all, wiik
much ado, was hashed, and kept quiet."
RtnAf.
<* The more diipaasiooate contented Uk»
selves with wondering, tliat his majesty, a
continuing the privy council, should puUkif
declare «.That he would have no cabiMt
* council, but that he would in all things MJot
< their advice, next to that of his preet eosid,
* the parhament ;' and that now he sbouMn
suddenly prorogue that great council, wirii-
out so mush as mentioning' it to the other."
As to the eari of Danby, though he had »
caped out of the hands of the ConimAus If
the prorogation, he could not make his exap
out (»f the Tower ; thougrh the king* had p«*
doned, he could not eukirge him, nor wosU
his majesty's new counsellors advise him li
strain a point in favour of one, who then badaf*
ficieut reason to think, would, in return, cms
them of all farther trouble in his m^eAft
service.
%
PllOCEEDINCS IN THE KiNGS-EeNCH, UPON THE EaRL OF DA.SfBT'i
Motion fou Bail, a. d. 1682.
THE Earl of Danby liaving been confinied
for above three years, and no parliament sit-
ting, to which he could apply tor his liberty,
brought an Habeas Corpus in the King*s-
Bench, in order to be bailed ; which came to
be argued May 37, 1G8^, Easter term, oi
Car. «.
laimofliately after his lordship was in court,
the return (»f the Habeas Corpus whs road, and
Mr. Saunders (of council for his lordship) did
move the court, that whereas in Easter term,
1681, the court had dismissed his lordship with
a Declnratiuii, that tliey would take into their
consideration, till the term fullowin«r, what
answer they would make to wlial had then
bt^n said to them by his lordship and his coun-
cil ; he therefore moved, that they niiyht now
accordingly know the pleasure of the court,
and that they would be pleased to grant bail to
the earl of Danby.
But before the said Mr. Saunders could well
hare pronounced the foregoing words, the Lord
C/i'W Jastice Remberton did Tepiimiaid \V\«
said Mr. Saunders, for having offered to impoil
u[K)n the court what had never been said bf
them : saying, Tliat there was no such thnf
as their having said, at any time, thattkf|
would take the earl of Danby 's case into 6^
tiier consideration ; for that they had told wj
loni of Dauby the last time, that it was notn
their power t(» ^^ive him any relief at all ; ni
that hethorelbre wondered, and must esireOK-
ly blame Mr. Saunders, fur moving the eosrt
again in a matter to which they had alrctif
given such a positive answer; and could not
but admire, that he should ao misinform bii
client, as to give him any such advice, whiA
could only be to the giving both him and Iks
court an unMeressary trouble.
To all which Mr.Sauiiders replied, Tlitl ht-
humbly bcgi^ed his lordship's pardon, if ht.
had mistaken him ; tor that truly he did m^
derstand, tlir.t his lordship had «Ieclai«d M
he would take time to consider of my knd -rf
Danby 's cape till the fullowine tehn; hot ikit
UC \l vtas ?i mistake, he uuti btg Idi ~
8S3] ^^^R' //'^A Trtattm.
fiircttiD ; and dul 1>elief e the ivst of his lire*
ihrett took it Bo^ ns well as (tffYi»plf.
The earl of iXtnUy tl»rn s|»oke himself for
iboat tw(» li* I ' ^auh to lUr LuriJ Chief
Jui»tic€, TU: Mlh nil oliifi<iio», which
)»r ' * r ' iiTnl ihtif he wusl beg his
Ki: , not to IH tdnt {in*^ tar u
III ,^,..,r,r,M,.J ,f4^r...M»artht*
C*>lfi'? '- li:i' ■ r of hin
eu'-.i- I '': I.'- . ■■ hia loril-
«^ . UiT thut his htnlship
lii! u toihe rpjtlofthejiHlgTS,
, i»hicb wtrrr niK»fi tin* fjftu'h tvith [inn, an«l t<i
nH other prrstitts w hat'^irtevcr, who wcjc thf^n
fu his lr)fd$)Mp hmi not 9saicf^ thut
ii 1 • e^rhtt'Dunhy) pleased, they
HOuJti Uikc tune lo (^msirler nf fio* raw til! tlie \
next tprm ; ami htf rlicJ dedarc itpon his ho-
no' ■" ■ :',' ■■-■.' V I '■■ , . ,,. ■,,! ,i .*
til -fin iriiJii i[,i«-
«' i^le thanks to
th..... , i,..k|.... ..;-!
Hivt h»
ffitmnee mto » mnticr which be roncdvert to
be of io g^rrat wrififht, a» ht* dottbtefl not but
lie fhottht makt» Uiis tiisK of lii;* appear lo he.
iUit yri; fhat it *]u\ ;:fipc hitn Pf^nson to he-
Kffvc, i( r befoTR
tii9 loi ..idi pre-
pOMcsnod HI this nmllLi, thai li hr: dtd not
think every man in lint; land would fiorl that
he michtf iif;d in what rfSfjlmlon
ihould lie CI case, ns ^vdl ns himself,
Ke should ' ' -■ '■'
thotin^h ht^ h
mcooflr!'-!'"' ...» ^,.. ..^,.,.,
therein » ire I heir lohWitf>s pa-
tience ji " ii,il he had to offer in his
own Ui i v(*d) in the hchulf
of tht! i in tjeueml.
HiH If lo the lord
chiHjti .v a year ftnce
b# w'i« huti . Uip ia this court; And
that he wii«; :ii ht^ lonlKhti) did then
lileiaM? [ H<y ^^ould take time
to the ' siller of «li*i they
«ht ' ji» iiii* lordihip^s CRse*;
JB was tlicn tnkcn tla* first
th • ■ ' • •■•■*' ♦li'* c^ni-
iw_ - hronss^hi
ag^.^t,; •■--• <. ■^■'-> ^ •< . ....... ,is he had
ItoHi'lhld) for his bring privy to the murder of
nt Sdtnundhiir v Grafri e v .
H* ««id 1 :)t it, hi'ranu^
tJiOTfr w-m« n< I iihndnotlMrn
IDV^ntefl to be «md a^miu%t hiiM ; bnt^ he coo-
f«««ed, ht* dfd lymofrp to hmr, that »uch nn
e* ' wn^upoo ^
fo, . , -^r-«iiy *•!
thouiU he h' ...
t«lll« hj t ;
llMvn gwtietn^MJ
bMD nracti vtaii
OHM of A o«tarioy» mankr^ it U« hnd b«o
VOL. XL
A. D, 167d--1685- [S34
rfttdy to ihtd that mui*dcr a|fiiinftt hitn. whicfi
had notihe letLst prohahitity in it ' ^ h iid
miin coDid think of with tnorf- > < (H>tlK]
of the fui't, jind <d* uny man ihai i oui*i u^ve aif j
hand in it« than liiinHc'lf
T' "* f-rrr, this prcvf -* "' ^'-^r f'-^*^^ f.-,...„.^i
I Hi. till aft'
fa, ., :.-,,:nJhury G<"! . . .vJ
if thry hjd any tli ainrtj
fnm on th<it uiatttr. , i ' \^ * liim»l
Hiflf di<«d) I ihiit indictment; and i
tothenrnH n, Fit/ flurrisji, (who hn
accutrd him) liv did l<vo days before his deiilllj
ifcnd the nnnibter of the To^ver h\ \\h lords^hi^l
to bi'rr of hitn that, before he died, hi9 lordsbtp^
would for^five him bin having s%vorn falAelj
against him ; ond he did contes.11^ thit he wai
put upon it to save his own hie; and did sa]
' '1 inpteii todoii. And w he-
rn those* men, who migfW
iminw iiutr %Muiiuc!s iliscovercd, Aod SO niii^til
lear ihey conld no way be sale hut by potting
I hat nvMtcr yet fartlier acainiit bu'^ *^r iVnnin
nhiit other oniKe, hi« lordsihip cou!
hot (if his lordship was not rTu>
bediiihenr thut *ome men were aiiJl v^^
vourin^ to ^et something more of the
natoro to be KWoni aij^ainsl him^ r' tij
coiitrire how to make their forged t
lo atfrce about it.
He said he thonp^ht that tima wotdd hav
lii*ed out the malice of snch hfood f " ^ >*1
fore now, whom he hail found so b' ai
linttyt'uv and h' • ' f
he wa-i not a \s^
I reason oS tin to suspect to be
M M«i . nmiinifst wbouMbc 8lory
Irishmnu) lie gqiiI^
' , in his cndcnvour
(under pretence of kindness) to hnve mad^ hiQ
their tool, to prove^ thni sir Edrnoiidbur^
Godfrey had ktlfed himself: But he natd, he
had the ijood foil one immediatdv to delect
that riltainyt a* he hoprd yet to live lo do of
some others ; hot thyt in the mean time he tore-
naw, that he t^ > Jo he a p:«
jectofihe tnnli - men, i?»s
was left utider ^^^s t r.riniu?nicnt, fn>n» Ht i^irii
he wiw no lionrs to be rdievod, bnt liy that
«^ourt» whi'Te the hiw directs evi^ry En^^igh'
I man to coroo for justire that t« oppressed m hts
liberty.
He laid^ he ho|>ed liis lot- ' fof
g'ivf'hirn for hntinn. Ur* n aliui. j tlu
subject of Sir r :ry Godfit , 1 ii>e
his rrput'iti'm ^--rii niucb t'\['''M ,1 m
that court.
A^ )t indictntwii. he
u* he a pitihaMUty of the
*n Komf *h*»rl time ; and
! i;' U^'.l II' ■'- ' f
I ihiit hi
»*-nji iiir'. y thrift, ttudyfi t "iivj 311' is Tfc.T'.yii^
r WM withont tU« kiiowled|^e to tiiat ^ay , for
J n
1 JAMES II. Proeecdhgs against Thomas Earl afDanby^ [8SI
of it); 9ayiDg^ That that did pardooboth bii
crimes (if he were guilty of any) and hit im*
prison luent ; aiiil yet, that both that paidm
aud he had be^n priaoiiera together for abort
j three yeait (of which be said he durst ooofi-
' ilently aiiirin, that hit was tbe first preoedeat
since tbe conquest).
Fii'thly. He tet forth. That he bad:aDt
only hit mtje8ly> pardoo, but that there 4id
! been his majesty 'sdiwkratioii ofitiajiittpetch
to his two Houtes of Parliamenty togedicr
with a declaration of hia iaooeency, andade-
clanUiou that-he would give bimhw pardoalea
times over, if that were defective either it
matter or form. And in this abo haeaid, tbat
Lis case was not only particular from aiy
others, but that such declaratioiw of the kio^
intentions to pardon, (although the formal par-
dons hare not been obtained) havje hcretufora
heen alone a ground to procure bail at Icto,
when the party hat been the kiog's priMiiicr»
and at the king*t suit ; which he auppoted wat
not doubted in hia case.
Sixthly, He said that he had not only bea
thus committed, and thus detained for abtit
forty months, but lie had been kept a pnsvMr
witliout any prosecution tor the greatest Mil
of that time; which is another aufficM
ground by the law for bail : But instead afa
restraint Ad CustwHum^ lie aaid he had undv-
gone punishments greater than the criinesal-
(edited against him could have deserved it'lbcy
had been true ; both by the lenfftli of bisiii-
prisonmcnt, which was .agreed to be a idi-
cient ff round for bail, both by the king'acMiidl
and the nrisoner^s, in the arguments on tht
grand Habeas Corpus, 3 Car. as also in Skl-
vin's case,* 1 Car. and in sir Thomas Danitir»t
aud otlier cases.
By the inconvenience of his accommodatiiisa
in the priM>n, for above two years and a bak'
of this time.
liy two most dangerous sicknesses in the
prison^ And
By the loss of divers of bis family since hii
bciug in prison, who would some ol them SMt
certainly not have been in those places what
they have been lost, had he been at liberty.
lie said he was informed, that his VMJ/Btf
Lad been ugaiu pleased to give his directions t»
Mr. Attorney, to gife his consent a seooad
time to his bail, aud he <lid beg leave to aik
Mr. Attorney if it were so ? Whereupon Mr.
Attorney did stand up, and say, tliat be'VsA
his majesty's directions to give bis majeity^:
consent a<^ain to his lonlship's being bailed.
ills lordship did thereupon soy, that tUi'
also was particular in his case ; and be did be«
live, there was scarce a precedent in tlie worM»>
of the king's pris<iner, and at the king's toit|
not being bailed when there hath been tbe king't
consent to it ; unless where tbe-prtsouer badi
not been able to lind- sufficient security for hit.
appearance to abide hit trial. For that ibe
&S5J
what real crimrs he was committed ; only he
knew that the name of treason had been laid to
his chai'&^e, without saying wherein tb(»trcaton
consisted.
He said he caone, thcre^ire, -now to that
court (as the ouJy>proner p^ee for all persons
to resort to Ibr.th^ir liuerty) apil •he was.sorry,
that he was put to the great ^is:a4i antage of
speaking in his own qmi^e. Bui; beca.ise he
saw the l^^st time he was there, that sc^e
fault seemed to be foqnd with his council, for
ufgiug things .which seemed. to relate to matters
of parliament .(although upon a due considera?
tion of his requesti the|rf», is qothioyg in it which
(jioes touch their jurisdjctioip), he had chosen
rather to rely upon tiie, court's, paidooiug his
defects^ )l^aa put any /urtlier hardships upon
Oiose gentlemen, w hO/ had been h^s couuseU to
whom he had been VMf.e,, behol4en, than tliey
had been to Enm, fpr thai, they bad updergone
tome unlieard of rebukes already in an(»iher
place, for ofTtring to lie of cuiuisei with him,
(though in matters of law) which he believed
had never been heard of, but in his case ^ and
he hoped, that (when all his circumstances
shall have been well considered) hc.slia|l be the
hi&t Englislmian thai will ever have so many
hardships put upon him, as will appear to be
through every part of bis case.
In the first place he said, That he had been
both accused aud committed, without any oath
or affidavit made against him, fur any crime
whatever : Which hath been in the case of no*
other lord but himself, and he did believe of no
other man.
i^econdly, That there was no particular
treason mentioned in the articles against him,
only the word traiterously had been ap-
plied to tilings which were not treason, if
they had been true (as was then declared by sir
Wiiliam Joues, the king's attorney) ; aud he
«uid, there were good store of u itoesses to
prove^ that when it could not be maiutuioed by
argument in the House of Commons, that
any of the crimes, mentioned against him,
were treiison , it was answered by one pf the
Jong' robe there, (who wotild not have spared
to have assigned the treason, had there been
any) that however, they ou<^ht to give the title
of high treason to tlie ArticTus, for that other -^
wise ihcy wpuUl dwindle to nothing wh^n they
came into the House of Peers. No\f in the
impf'schments of other lords (uol to meddle witii
the truth or falsity of their accusers) they, were
charged with the highest ircasous in name, and
u|xiu oaths made against tliem.
Thirdly, When a sliort day was set hy the
Lords for his itcing heard ; and that he ap-
pcai'cd that day accordingly, his counsel was
then threatened if they did : dare to plead
uiaiter of law i'ur him i Which he. said was
never heard of bei'ore in any man's case what-
soever, . nor in the w(rrst of times.
Fourthly, He said, if all tlie articles had
been true u gainst him, and had been treason ;
be Jiad iiis niajesty's pardon (which he then
•*h9W^U tg tbs ioiirt, and dauka&dad tha benefit
• Palm. Rep. 658.
t $«i the Cass in this QolUotioD, vol. a«f. V.
Jfit H^h TrtaSQ
» only JBttififtVIe cfroimd^ for the ttiiitinuaoce
ofTctTmifjlby the law, nre, either fof kcppinij
\i%t party from beinpf uMe to do any harm by
hi» Hpiow' at lib<?rtv f - ^ t-' rhc kiriff ii the
beat iiifl»re,) or ftn ]>:irty lo »bi«l«?
the jud^fneiit of iliv ,^.v, ,,,i ,,iiicll the court
out^lit 1'^ have jrood sKtisfaction) and to ihey
-ni%i^oii1(! benoless
»ti ^ p k JO jTi than against
him^Hf, ii Ihcy shoitltl nut permit him to be
\m\vA tiniler such fircufustunces : For be had
be.iitl, thitthe law did adimt r»f no ab^unlity :
now h© did dp«irv* to know, how anv Ihing^
COObi Ml
kiner, r
kil: '
th
behalf of the
1 , and at the
] IK- K«'[>t ii» |»fi*oh by aiiy of
fipiinst the kii>uf\i will ?
■n Tinv thin^ ^
iir fte a jilni
tfary) than r ich
TCJiirjiiii oH^ ^ , . iifO
much itis bill), btit by the Iravu of ibe House
of Lord* ? when that tlou'se can neiihcr meet
but when ttie kitij^ pleases, nor cmn never sU
lai^r ttian he ideanes : so ibaC to say a
man nbali he a clone prisoner (( mean by thnt
a pri^oorr without bail, for bail itseU' is impri-
sort v» of I he law) till he sbalf be
di- ' House of' Lord**, is to say,
\\v . ■■:' .■.,'■ ^; . :V ' n'>%
pi. ^ .„.
p'liltiJCii 1*1, ^i»nru Hir t t ViiKIIJ OI H:j^nt \VBA
f^ranted, and that was thoojrbt to hare liiUy
nnil fiif crer redret^seil that ffrii'Vance.
But if aHer iso mnny beats and disputes
i»hid» our ancestors bate had wiih the rrown
about their liberties, tliis doftrioe slionid now
bf admitted for law ; we would seetu to en*
cl<>af our (4$ much tifin Holies) to briu;^ it to
thi« ooni^inuion, and i>« our own Fth^t dt fr *
* That the king' «ball bare a way ^luuif oot by
• our«elres, and without his lif^kinw', bow be
* nifiy imprison any man v^ ' , of men,
• when he pleasen,' in a p » y way ;
• and by disM^kin^ that pririi inu'iti he ro'ay
* keep them as long as he yd eases in a prison
• witbfMJf -— '
• bare (
• ttiithoj..;,
in niiort by
shall neitb»'r
1 by bii own
'"" ' Sons
lid only
la aod the iV-tti»<ni uf Ri&;'bl
of receivinj* fhat benefit by
f' re been
« lenmed
Wr:i : ■. :. i". " ■. ' lUii at hbt.Tty have
•»'i r, at all times, and
•^mrrre to bii lord -
'.M Ml i..y bird chief juitltcf
u|Kni Maj^na Chuvia ; who
uids * Nnlh rendenmn, NuUi
' >l«^^fiitui| atl diifmnQi Juititiafs rel
thrui, v^bicli the kiii^ of
•0 ^mciouv 09 to fftve u<4
i'«i ail it'
Uie then b
A. D. 1678— 1S85. ^838
* rectum^* ire Sjpoken in the person of the kiog^
wIm> (injudijmentof law) isalfvavtf present, ■
and repeating the said wonlii in all bU coiirts<
jn»iice.
And therefore («ayf be) every subject in tba
realm may, * at HM iimoK/ bare a remedy by
the course of the law ; and may hare yi%*
tiee *ton€ Ireely, Adiy, and S|Kvdilyt wiihuat
delay j for that delay ta a «ort of denial.
The »aid lord Coke observes fartlier, Tht
those svonlt of Magna Charta are fully ex-
pouiided by latter siutules, tIz. 50 FJiz. 3, Stc.
which do direct, That there shall be no del^
nor hindrance of speedy justice to any* xw%XkA
neither by any seat, nor by any onScr, nor an^l
writ whiilsoeter ; neUber from the king", no
from any other, nor by any other c^use.
Now, wbaterer may besroid out of other con-'j
f — iv-^ he^aid, tin ^^^-^-^ ^1*1 tleny, but tba^
Hul delay - to nay no wor*«
->: ,,; i.- „(»y man wlii ^;.i. u^ii no neijlect of
bis o^n; can neither get trijl n(»r bud in nbore
three yeaii, although his crimen were never s<?
^reat. And be said he dtn'«i be couftden^j
that the makers ot WagnaCbjtrta did believ*j
I hey bad secured ftH EngfiNhnien from evei
being under the possihilily of such a danger j
tlid tiiat b« mlde no question at all, but that I
law we are so.
He said, tbnt the said lord Coke does say ii|
bis cijmmcnt upon the 15 W. I, (where b^l
speaks of what ibiOg^ are bailable, and whnlj
are not ; and names treason amongst thM
thing* not bailable) that is (says be,) sorb <if*\
fences shall not Ikj replevied by the sheritf||
but till or any of the?e, be «aifti, may be hadel'l
in the King's liench. j
And li«* said, be had akso some off h*?previitl
iiionH tocher, lu this point, w bicl^i
I 1 to read ont of a eo|>^' of the lonckj
jounml, (vii:.) S3 December 1678> The qucf*-!
tion being put, Whether tlie lord tre^isurerj
«hoiild withdraw !* It was c;xfhed in the nc^l
gntive. And oirthe ?7th of the said Deoember^l
the ipiestton W whether the Varl ofj
Dimhv* Lttrd M urer, (who stands im» I
; ' ' f'Y ttie Itnnse <>( Commons) should bf J
I ? It was res<^lred in the negative. . j
AiMj It W5W the same day proposed 10 th#j
judj^cs, whether the judges can bail atvy per^ f
M»n, in case of minprision of tfeajson, wlierci^J
the king's life \^ concerned ?
Ti* which srr William Scfog'?^ rtord ebl«
♦' of the King's bench,) ^ ft 1
I chief jiislire of the coun ► n I
I^Vas,) iuHtice Windham, justice Joht-», ati^i
cither ot the judges then preseut, gave fie*i
vera My their npmion? ; that the court
KingVbench may lake bail for hi^h-tn
of any kind, If they H»*e rnufte.
He cited the lord Coke also in tiis com me
on the ^24 \S . i. V ' i it w a ruW
in law, * QuchI ( t Defice
' Conquertntdnj '^ ' V f|
the ri'usou of 1 8
maybe prerentc.i , v^.o^** ;.v i.^ij^k^^**,^ -....«,
b abtiorrtd by the law : Ho as it appears, Tliat
1 JAMES ir. PraceedingM agahui nomas SaH ^Damfy, Jli ]
L
rt!ie law ;, o; nnil Ut
•nidf th&i I II his caic«
Ijiltiirt*; ri'^r no court Cfln jitifiilV ll*e iiul ^iv*
) slit: Aiid Ue amd^ 1^ sltoitld
> t h failure n^iwenr* or hU luiiliiUip
t i H'hcit; h
v^ iiH II outU iVlni^Utl di*tt;u bin ) nie I t uu";'t* ui ■
Higbt tire umhT^tuod to fiave provi<let) nt ull '
fM..... t;,. 1 1.,, ...h. ,.t5 lil,erlv : UiU ij liis lard-
M biuj nlieio lie mtgUl ftp-
in that leasts DC
lybknlji
oue for
];;».r
^
naitl^ tbat (or thai i. (were ibcre no
other) lie 'jught of i _, ■*-- a^tniitteU to bail
iy that court ; lilt he could lie brought bctbrc
uuiih n jutUcatui^% as tiail [lout^r ta dJEicharge
bim.
He obnerrcd also, tbst ihtr brd Cokft (iii »
chapter «ti the Kh n) did Bay, tiiai
that court mii^bi ba^i utTt^iM^c nhfttio-
ever : Aod ttiut iu ihu s. r it was paiv
ticularly ubaerved, that been such
rare isiken by the luw U) r.v .^mi latiiire ot jus-
tice, {ewn in isiualt umiU rs^ lu compiLrisoo of
libcity) llittt he givt;3 (hfi-e an exaiii|ile con-
ceruiiig- « clerk or oflit'er ot thut court : For be
takes notice ai' wUai Ihitigs, atid ag;uiUJit w lioui
that court h^th ptivver to bobl jilfn by bill.
And ainongst tb<»^c-t he nauivs a<jfainst ony
otiicer or clurk ui that court ; und glws the
reason : Because if they should he sued iu
aoy other court, ibev would have die pri-
\ilege of that court, whicli nii^fhl ha thr cause
oC a failure of j nil ice, A»d tVoni this his
Kirdship said it did appear, ibnt the lau in-
tendeil that there shouhl be no failure c»f Justice
by tlie privilege of any oouri, how great soever
it was ; for that (ag was said before) the kw
did abhor all failure of justice. And be said,,.
if sacli c4Lre hud been taken ag^aiu-^t a larhu'e,
iu such small iriat(ers»and not in whalcoiicero
our hberlie^ ; all l^iigjiiiliiucri ought justly to
break out into the like eKclaiimtions, as the
same hiii'd Cuke and many others did, iii their
speeches in par ham cut, afiil in their uleadingB*
5 and ^ Car* upon the argument of the Habeas
Corjius at that lime: Wbire the lord Coke
breaks forth into tbi^ expi-es^iou; ^ Sbnll I
• hare an estnte of iuheriuuce i'ov lilu, or for
• yeani» in my land ? And shall \ be tenant at
• will for njy lilK-rtyi* ShaH X have property in
' my gCMwifi^by the laws; and not liberty in my
• perAi>n r And thereupu he tells uk, That
' l*crsj*jcut: yenx n\u\ h\m\ [irobando i* Aj tak*
Iti^ for gr{ii)ted, that our liberties were aot to
be tifmblL(1,w|ieic our properties were so secur-
ed : And tliii king (^^y^^ be) had tlUtribuied his
jiidirial jM*wer iu courts, find lo his uiimtiters of
J 11 sf ice ; * Wlio f*re to see right done/
And he &aid, the lord Coke gave the reasons
of tlio<«e laws which are against undue imprt-
fionruiTttK ; and that one of I hose U, * For the
UidefinitLne^ tif time:* whichi he sayti, may
btf * ])<ir[>etual during life/ am! that his words
are, * "^riuil it is umeAioiitibb! to thitikt that a
• tnau has a remedy for his bors« ur cattle (if
rMBopil
ic\f mm I
I iat^i I
tiiket fliloN litm btttl, arllrilltt
•€* wlurti litf aJiftuki Iw tnsiiiiii*
lie did llati ' j'jyltf tb»«tti<^ I
eofSoJblk^i uddUici
cwcot aad Ftnte- - re (
judges^ ^ho said,Uja; i'»biCB»'|
mitted (ihougb W t^n^^ <.v **
cau^of the Lnsaaoti sbeweiii fvlkiab bid ii |
been in his caac.
He further said, Tbai manjr otber I
gentlemen oftliit |i«rljatDetjt tiad si.ir4
sensibly on th^ saixie aolifr
amoogst the rest ur Robei :
To bttfe om hberti«s(wli
our lives) taken from im^, h.
gaols uitbout remcily by lavi ; ^u*i ^
adjudgetl ((or so that cuiul had ii*
Hi to deny bail, for reasoos wLl-. '
time also' best kuo^a to tii«nfr
out, * O improvident aocestn- *
* fathers ! To be so curious
* quiet possession iif our |-a
* our persons and bodies ! A
* prituin ! A'^d wkhout reinL _ , , .,
*'pluciio! \\ V, what do 1
* liberties? , ;s be,) is msa
* all miseries/
He said also, Tlwit Mr. Scldm did in lb
same parliament argue, at ' ^'iic« mk I
the lords, That in all cases w ^ Rigbt«
Liberty bflongs to the subject by any poiittn
Uw« written or unwritten, if there were vM9kt
a rcmeiJy by law foreiyoying' or regmiorfirdT
this right ot*" liberty, when it ia violated or tM
from bim, the pusUivelaw were moet. vaia, laA
to no purpose ; and it ucrc to tio {lyrpMiftr
any man to have any right io laod, btM[1J«w
other itihentance, if tlm-« were uut a kwwi
remedy, by which iu some court uf
justice he might r^' over it ; autl in j
of riL>hi iuxiX hbcrt^ of pennon, if tbere w«
u • the law tor Kgain;iig it, whefi Uii
rr II were to oti purpciso io ipeab «t
laws.
Here he desir«d ti«a?e to sbtMr bis tor
what ^ir Nicholas Hide (when sitiioif
chief justice in that court) did say on th
casitm* viae. That the king's plea&ure
law should take place and be exeeuted {
for that do we sit nei'e : a&d w b«^t ! ' ' i
nutmeutbe by tlie king, or otltei*
tlie place where the king doih sii ui ^«-
do right, iif iiijury be done ; and if it ftf»p<ac
that any Diau l^a'tb wn*"'' 'l'^^- i
imprisamoent, we b.^
iii*;i;haiiirr bun. Ami ^i .
£. L iiodelli^j
\V ti the r»n .
attWi y%^
told tJj ueil.i
they (iltejudi^M^) doeicr lru>»l bim in gfMl
matters* Atul here he took occaaop lo au^,
That be bap«d tbot ibe kitig'a conaeiit to ||i» :
/84r] J6r High Tuftsm.
Wit, tnd Uif declaratioii oi* his innocency,
i»util(l be noir as tuudi Irititeil in Uiis court.
He riled also tKe ar^tneot oK Mr. Calthi»r|>e
fyf sir Jokn Ci>rbet, on the tmne occ*ti«<)M,^vljo
•4iitl, tiiat» iidmit tlic eonunitiiieiit uereiawful,
yet «^heii a limn hatli toiitinueii id (ii-iaoii, a
reak>n;^UIe time, lie eu^'^lil to l*e l>r<m«4ljt to an
swer, auJ not in Uk coiiuirued ittiH in [uiaon : tor
timl it ii|»pears by the bcioks of our laws, iLat
liberty i* a iliinsf *o (kvour«l by the law, itinl
liie liiw will not ftuffer life contimmncc of any
buui in priaon, lonj^er thftn of necissity piusi.
He eilctl nUo Mr. H^ckivcl) ; who cuid, ii|ion
ih« AQiue occAJion, Ihal the luw aUmiis aoltbe
potrer of detaining iu ftmon &l pleaKure, when
Ibe impriKontnent it bnt "• pmcnsstodia :'* tor a
nuui, kry lo^ imprison meut) ini«jrht otlierwi^e
be ()ujii»bdd beliire his o<^'enop. And Im iTieo-
tioneU an expref nion of his, That ton^ iiDprtsoo-
mtni V¥t^, wUa Dcjor nutrtK
He meutionca how the Cummons, tit thi* f ml
Af tiie imrlmiucnt 5 Cur. M detiirc, ilini the
Iges mi^bt declare tbcmselves iijion the
ilteft' why those grenilemen hud not been
led, wh*fn (by the judges arg'umentK) it was
{Kiinsiblc they mi«^bt have been kept prisoners
ali tlit^ir dftys,*
Ti\ whidi, he said, Wliilltitke aiwwered,
First, n^4 €o ; but thev did remand thetn, that
ley mii!:ht better nrfvbe of ibe niatt^ir; and
ai the ^enilemeli, if they b:id pleaswl, might
'liave had a new writ of Habc;\s Corpus, when
iJiey iliought lit. And, «crundl), ihnt he had
i\i imich titHe m this court ; undthat in <neh
_ -^at ea*>e», he ntM cr knew any man baiiril
¥nibout the ki»i|^ tirat cotwtilledio it: and the
ftaou'i he said, wus then said by the rest of the
judg^e^i of thai court.
lierefipon be made two remarks: First, that
hy iUm it difl appear^ that upon consideration,
inal court bud altt-ral their opiiiioos in the
€Me of hail, jnut contrary to what their tirst
Opinions had lM?en positive in: and, secondly,
tout the oonstiltin^'^ ol'tbe kinar was ever neccs-
L,.9ftry in sucli Qreat cases. Add he said, he did
Vi^tlic'VP, ihot iJjcre was not a prectilent, where
r till! kttT^ had nj^eeil to the bail, that ever it had
Itevn deniefl.
He ^uid, those tnen whora be had i|noted,
Wire iiit^n of 116 onhii.iry undcrj^taudinf in the
laws; aud a« the judges then did at last uc
ktiovvk'do;e ihf^ir senie of them to be rij^hi, so
b^ ^ ..,1 !»<> |iii|iod our laws were neither
ci :. d>iumi«ihed, io what related to the
s>i , ' rties; aiid he hopeiJ that no order
of onn House, nor ordinance of bolli HoiiiitfSf
nor Kiu{( alune, nor Kiug* ami either House
abme, could alter them : And be rested assured^
that u kiii^ and (>artiaioent woyld oerer alter
iheni Ici tjie prejudice of liberty.
He jiroceedcd, that if the law were still the
^Hpftmi? it wu!i heretofote, it was plain, that that
^Biw did both ^ire a power 10 that cotirt to IkiiI
^^Ibf all otiiences what^iover (and lor treason par-
tieuUrlv), and did re<]uire that the subjfi-t
alionid at all liiui^ tind leinedy in it, wheti his
libeily was restrained, by any cause whalorer.
A. D. 167»— 1685* [8W
The diief reasons, be said, trhy sudi lurgig
payers had been g^iven to that court, were pntj
cipaliv fi^c avoidm^^ all failure ot justice ;
to the eud, fitst, thit the kini;; may \mi\\ have i
means of f^ivicig' n^hi to Um 7iubject& at alt
timi«, aev^wrdin^ to litij oath at \m cirronniioa.
and arn»idiof;t to the intent of Maq^na C ha flu,
and tlie IMiiioo of Rik:ht> And, }«e«?ondly, that ,
lliere mii*:bt be a eooKtsnt place for the sut^ecjij
to re»'.rt unto for remedy at alt limes, wbenso-'
ever lie was oppiesMHl in hiti libprty : and he
ho[>i!il wo were not now to l<*apn a new law, that
the kia^ wudd neither keep his (tath, nor main*
titin Manila Cbarta, titir the Petition of Ri^rht,
without the assistance of an ^extraordinary
court, which he may bath diuse, whether ho
will eall^ or when he will call it, and how long
il shall sit ; which (as he bad Raid) would put
all und*^rthe kiog-'s absolute wilL
Hf then said, he took for granted, that there
would 1m? no diB)>ute made iu ttjis matter, but
that there was an order of the lords wbicli was
sap)K)Ked to stand in the way : but tie said, if
his lordship wnukl give him leave, he would
ftrst say sMrmetliin«: to the order itself, and then
}\e honed to shew nis lordship thnt it !itoo<l not
at all in the way, as to his request of bait ; and
that it ^iiould neither l>e interfered with in llie
1ea»it, nor ihejurisdiriion of the lords, nor their
prtictfdiny^ medled with in any kind by his
bein^ bailed ; hut rather owne<rnnd !4ubruitted
to, by his l>einjf bailed to the parEiament.
And flrst for the Order itself, he desired the
court to observe, tliat it was dated the I9lh of
jliarcb, 1076, and worded as foUoweth, viz,
'-Die Mcrcurii^ 10 Martii, 1(378-^,
* The House tbii* day taking into consido"
* ration the report made from tlie Lords
* Corninittee for prtrilejfcs^ that in purstianee
( fif the order of the 17th instaM to them
* dii'eeted, for consider! u if whether petitions
* of appeal, which were presented to this
* House in the Inst parliament, be still in force
^ to be proceeded on ; and for considering of
* the state of impeachmenit brou^hl U[k from
' the House of Commons the laai parliament ;
'and all t\ie incidents relaliuf^ thereto; uym
* which the L<ird9 Com mittet-s were ofojdnion.
* that in all Cases of Appeals, and Writs of
* Errors, they continue, and are to be p. octeded
* on in $tatu tjuo, as they stoorl at the diasol^-
* tion of the last parliament, without berr inning
* de novo^ And thai the disi^oluiion of the last
* parliament doth not niter the state of the im-
' peach nient^ brought up by tire Commons in
* that parliament.*
Now upon this Order he obscfTtHl, That it
j-eloted as well to Appoals and ^Vrits of Error,
as to Iinpeacbmenrs j and sfciiK'd to l)e moro
fully uorded to them, than toifiipearhm^uis;
the words Stafu Quo, and with<uu bt'^inning'
/)<? JVi'tw, heinfj iinnexed in the onhT luoro
» ■ ■ i ■
* Cit>. Jac. 334. 341. t4ee also Jeuk, 302.
1 Mo^L 14, 77. Pulai. 150.^60. 2 Bulst. 159.
237.
r.843J
1 JAMES IL ' Proceedings againsi thomoM Earl ofDeaAy^ [84(
.particuUrly to the Appetls and Writs of
Errors ; whereas all that iras said as to the iiii-
IieachniPDts, be observetl to be, that the disao-
ulioD of that last pariiameut doth not alter the
state of iiupeachmeotB brought up by the Com-
mnus in that parliannciit, and are not words
which (strictly taken) can bind after the disso-
lution of any other than that parliament.
But he said, if the Order should be expound-
ed otherwise, ^et that both the law, and the
practice of the inferior courts, were undoubtedly
contrary, in the cases of Appeals and Writs of
'Error. And, he ho|ied, no c«urt would take
upon them to expound tlie order so, as if they
were at liberty to slip the order, and to judge,
which part of the same Order should be bind-
ing and which not ; for that wouUl be to meddle,
in a more extraordinary manner, with the pro-
ceedings of the Lords than he had desired.
Now, as to Writs of Error, he said, there
were full resolutions of the Judges in the case,
though in limes of prorogations only, when a
day is set fur the sitting of the Lords' House ;
an(l he cited the case of Ileydon and God-
salve, in Croke's Ileports ; * as also the lord
chierjiistice Hale, who did not only grant exe-
cution upon a urit of error '(de|H'nding in
parliament) but did also answer ihe defendant's
counsel (\%ho uould have pleaded the lonis
ord(T in bar of the execution), that he should
always pay all dac res))e<'t to that superior
court of ihe lords ; but that he must act ac-
cording to law ; and, that he knew, that the
lords did not intend otherwise. And of this
lord chief justice Pcndterton himself, who he
said had denied restitution upon an execution
lately taken out, in case where a writ of error
was, anil is still depending io parliament. And
in cases of appeals, he said, lie was informetl,
that the court of chancery did not take any. no-
tice of the appeal being in pariiameut after a
dissolution, hut did uotwithstnntUng proceed
to scr|uestration. And he said, that there was
a late precedent in the Court of Exchequer, in
the case of one Fountaiue, \« here an appeal
was brought from a dex*ree in the Exchequer,
and recognizance entered into by the taid
Fountuine, to abide the order of the House of
Lords : And after the parliament was dissolved,
the counsel of the said Fountaine did insist on
the said order before the barons, that the House
being posse:>tof Mr. Fountaine's cause, and
security having beon given by hiui to abide
the order of the House, that no pi-oceedings
oiiglit to be had in the Exohiniuer upon the
said decree, until the matter on the appeal was
dutprminrd before the I^>nh. rsotwitlistand-
ing uhieh, and that Mr. Fountaiue produced
the liOrds order in court, and produced the se-
curity alluvtcd ; yet the now barons declared
and ordered, That the docn>u by them nmde
^ See the Cases citul in vol. 7, p. 1319 of
this ColicctioA, and particularly that case of
Wurren Hastings, io which it was alter great
consideration decided, that au iufii»eachment is
m^i dei'idtil hy diwolutioD of the parlianieut.
should be proceeded on, agaiMt tbe vtSA Favn-
taiue, in the Court of Exchequer : And a pro-
ceeding hath been bad aecordingly.
By all which he observed. That the inferior
courts did proceed unoo matters, foiM ■
much by the House or Lords, in the nuiny
of ap|ieals and writs of error, as it was u^
impeachments; and yet that the reasim was pUi
why they did so, for that tbe parliameBt ni^
proceed again upon the same appeals, wd
writs of errors notwith8taiidin|Br ■ tiiofe |ir»-
ceedinffs in tbe inferior coarts, lo the ioiml
of parliaments ; for that none <»f those actsef
the inferior gonrts do so hinder the pTOcesdiflgi
of the sn{)erior,' but that the plnintifF in pv-
liament may revive the same matter that
again, hy tcirt facias^ or bv resummoos, flw.
But he said, it was never heard of, that tk
Lords themselves did proceed again ex ejfinn,
without the petition ot the jparty to revive the
cause. And so he said in the case of in-
peach ments, that the Lords woiikl ao anti
proceed ex opicio upon ' that neither, oaleN
they were called upon by the prosecutors ; uA
then their lordships proceedinn upon tbe ia-
peachment, woulil be no more hindered by ibe
bailing of him in the inferior odlirt, than tkif
were in the other cases by the execqtisos uil
8e«piestration8, which are granted in the in-
tervals of parliament, which were Ibr Ik
preiention both of delay and c»f failors d
justice.
Besides, he said, If this should not be far,
how could it be known wlieMler the|iroas8nHt
of an impeachment from the House of C«-
mons (vino are never the same men in aaev
parliament), will proceed auy "more npoo s
former impeachment? For he said, «l ksA
many times fallen out otherwise ; and bscitrf
a late case of the lord Monlaunt* who was ia*
i)eached upon articles in one secnon ; tni
liaving taken out a pardon during the prp-
rogation, was never more called upon, Mr
never questioned upon the former impeach*
roent ; although the very same pariiamentitf
again, which had impeached him : and tbne-
fore he said, that the case might more prak-
bly happen to fall out so, when a sew fkrlii^
mentshoukl meet again, which would coasa
of ne^ men.
He said. It was likewise to beofaoerred, tktf
although the transcript of tbe record in a writ
of error might have days of continuance, vtl
no supersedeas is grantaUe ; and he said, ttit
if the Lords enter be no ground for a sopn^
sedeas on a writ uf error, why tbe lying or a*
impeachment should be a ground for couftoiaf
a miui within the Tower walls all iik life, bs
was sure must be less reasooable and leas j<Mt|
as liberty was more valuable than property,
and without which pro|)erty ooald be of at
comfort.
In the next place be observed. That if the
order sliould be conatnied hterally to
« SeetheCiie.ToL6,p.rU,«ttddit Msto
in p. 806.
813 J
far High Trcasoiu
Umi lite impadimcnUf as wt^tl os the ti|»-.
und wriUi of leiTOf f ••[•'* ''-^^ vt" ^i^.^iig re.
ig lo nil ot UitnV) ^ in liic
R HJiiti* ilirv vvi^ii' ut IM i. a . (if liint
}»&rl II tbc «i}(l nri}er, hiji
dsr _ ' wouUI be qyite didVr-
tui Imiji aiiv <Hl«rra » t!r»r ttiar bf whs not
umltff Any erMiiiiiiluieot attlicfiissoUition of that
[»«rhdpiciit, nor (it the lime wboi that order wtis
luailr, but was then ut UberlY to lie a Mttin^
ii)«*nilK»r of that House, aiict hy & voti> of the
Utiuse had Irave to continue so ; for that ^oa
hehndni ' nf the order
wav the the watrant
of lits i.'uniiiiiiiiii-iii itMi ii|i|irar iiy ilie rctuni
b«'fore il»e court, to be the loih of April fol-
loi^m^ : |ti«ni'^"' 1' '''^^» ''' "f^siretl the court to
laki- nouci't il iter of the worda
Mdttu p*o in ihi- 1- , -- , art-d with the time
when the said order wa*t niadr) would he an
arifument to set him io a state of liberty^ as
iie titeti tvsa.
fie tht^ told the court , That by i*htit he
hod said, he hopcil he had miide appear, that
the ordt*r ft id not atTo rd tiie leust *ibudow l\>r
iht I of his being bailed ? hut that on
the the reasons were mucli stronger
for iiic ihtut^ of thill (as U reltiteil not only to
him Imt to the liberty of the 8ithjfct in general)
fclheti lor liie procet!dif»(;i» wludi iLe inferior
Ifilirts do daily pntcli^ upon appeals and writs
iwcrror (which are hut for pro]»erty), and are
eoiapri^L'd in Ihe ^amc order; and therefore he
said, i)i:ii Iw hoped he should at leaU dnd ttie
satn u tt case of lil>erty, whic^i it» mU
to^' I ly in cases of tenser mnment.
He ti^en &»■((, that although it did not con-
cern tu* pnriiuular cxbc, yet for th« s*aVp of
Kimliali hbcTfy itntclf he routd not but say
•oatfftllifisi^ Unh'^r ujhui thia point : For he
' ' nt» ' d' opinion, Tiiul if tl>e m-ikr
dir> 1 bnil ; whii^h it was far
\v I sides, the Lords own prac^
tr fuenmng t«i the eontrnry
life dcyclajcd to be grrut^r ti
which caie they oiade no .
Uifir order, but ukc that io h*
force to^^tu-fJ** hiiSk as toiaanL^ _.
were iit cuMCMly : yet he icaid,
if »Ui li i'ii r»r(1er f.Krifik! lit^ liiijid
Mr
^^— crimes
and in
-'' to
e
. -.-... ho
ill titat caa«^
!> hi: n'JJUnist
t
-f
<\ I hey
in the I
t. His
.;] lhhI I
* II «
I iwjudgnivf an «rderoi iha Uousii of L9rd«,
A, D* 1678—1685. [8W
* that 19 put in ejceeuttou tode|tnif any subject
' of ht!^ liberty.' And, as he said, this txiuhl
nm he d*>nied to he law ; m he nas confident
the ^arl of 81 1 tiftcfthury \«as atiU of the &amf^ {
rnind, and «o vim»t ^nry loitl in Englatid be,
fH*(tflu'ti ihtv tcMiBidcr their own cases) they
would i liberties to be ver\' jirecarious.
He I 1 to say, That* the €arl of
Sharttsliury i*euij^ allowed to be n knowing
mun, bolli in the laws, orders^ and constiiiittona
of parfiaiu*'nt«, he would beg leave to nuotd
another pnrt of the Rame 5}Mfech, f\z. Thai
Mr. Attorney (which wa« then sir Willi an/
Jonrn) was [ileahcd to answer the instance of
oneot U\H Irtiilship^s couustU That if a g-reat
minister should beconmiikled, he h.ith ihf cure
of a pardon, a pror<i*jalitin, or a dis^oluiitin ;
But (says the earl) if the case should be put,
why forty members, or a greater number, may
not as well he taken without any remedy ut* •!
any of the kin^*8 couria ? his lonUhip saidg
Th*t Mr. Atlorney could not very easily ansuer, .
And if in this case (says he) there can be uo re-
lief, no man eon foresee what may be herealier.
And iu another place of the sonie speech he
»tuy8, he doc*s not think it a kindness to tli^
Lords U^ make them absolute^ and above the
law ; for so ?t must be, if it lie adjudg^ed, thar
they may commit a man to an indefinite ink'^.
lie took ihese men whom be haii
n.i...r,., ,,,k tio j«mall authorities iti this ag^er^
Ami the earl of Shalleshury, he said, was i^ '
man still tis much for tht* mainUiniiijr ^*' 'tiJf
onlerys eier ; hot that his lord^np did &hew^
himself at the same time to ho for Enj^lish'^
liberty. Anil he phitnly shewed hi^ own sense,
Iroih of thin ¥ir>d all orders whatever, which'
i«*»ii<T.rnrd the liberty of the subject ; and de-*
clan^d, Thnt he took* that court to be the pro-'. I
per jndtffi of all such orders.
He witd, U thereby appeared how neniible.
that lord was, that such cases mijjbt eoucern
forty as well as one, and members of eillwr.
House as well as other men ; and without re- .
lief, if it stiouhl be admitted, that ordinary
courtjs could not relieve. And the earl of*
Danby said, That there was uo answeriog^ -
«ltlMe ari^uments of the earl ofHhikftesbury ;
hsia it could be denit^d, That the kingf can'
impeich as well as the CoinmonH ; or tluit the'^
kinijf cannot call and dissrdve parliaruetits at J *
own will nnd pleawirc : for if he may (as "
not to I l},he »aid, he %v,is sure eT?ry
nmn ^>. ' ^vss in the »*ame danger when''
; and ihen be Raw nothio|^*
i any security ; but that v^i'J
r» kiuif who would not etcrcise
nver us, which we will needs put'
iiit'f inN iiiiiid*, ftUbmi|rb he dotrs not de*iirr il^
himself. Ai4ifl^ were so weary of our lil^r-«
ties, that wes^R **^ ;..,i.,..r.-..i- m contririn^*
how we miglil m i >» thme slare-
I'it^x which Aur « 11 voin** H.f^f ■'
pains to ^
U9i fg itt»fi J liiiM* over tf t^M^y hart done ; ani«
8i7|
1 JAMES II. Proceedings ageund Thomu Earl ofDmh/^ [US
which other ktugi may be as rea<ly to reaaaume
hereailer, as we are to ^ve thetn away.
He coocliMled his observations n|»on tkat
speech of the earl of Hhafkesbury's, with tak-
iag notice, that bis lordship had shewed he waa
ana of those peers who would take it for no
kindness to be made absolute, and abo?e the
lajr, by auch orders of theirs beings construed
to extend to inde6nite imprisonment.
He then repeated sir William Joneses decla-
ration in that court ; That either a pardon, a
proro^ion, or a dissolution, was a cure a|rainst
vuch im|iri&onments. And he observed there-
upon, That if that doctrine were true, tiiat any
one of thoHB was a cure against such imprison-
ment (and he could not doubt of its bein^ ffood
kiw^, then certainly heouig^ht to find relief from
his imprisonment, who had every oua of these
cures on his side;
He then desired to put the court in mind,
bow in tlie worst ol* times justice had taken
place so far, as to lay asuJe the force of orders
uaiU in parliaments, after the dissolutions of
tliose |»arliaments which made tliem ; althoiii^h
k waa to the prejudice of the interest of those
usurpers themselves.
He cited an instance of oue sir John Stowcl,
vho, by the articles of £xeter, was to have
keen admitted to composition for his estate ;
but yet, contrary to those articles, the parlia-
ment did afterwards order his estate to be Kold.
iltler the dissolution of which parliament sir
4obu Htuwel pleaded by his couusiel (which
were serjeant Mayuard and Mr. Latch), Tliat
that order was dissolved by the dissolution of
that parliament ; and that therefore the articles
were a;^n in force : And that the plea was ad*
mitteil tobegooil, and sir John restored to the
beneiit of the articles upon that plea, even by
Bradshaw himself. But he said, he was soiTy
that he could neither lia^e sir William Jones
to arj^ue those points i'ur him which he had
use<l uiT^inst my lonl Shai'tesbury ; nor ser-
jeant Mnynard, to make tfuod the invaliditv of
narliameiitury orders otter dissolutions : but
lie said. That it was not his fault, and he doubt-
ed not but that he was before mure just judi^cs
than there was in those ill times ; and tb:alie
hoped, Tiiat the liberty of the subject uaa
not now more precarious than it was in those
da vs.
lie added. That if upon sticli orders men
OODid not be bailetl in the inter>ul of par-
liaments, they would become ^'ievances i-tjual
to the multiplications of treason!^ in tonniT
days ; m hich have somctimts been sfrrodil y
made heretofore by parliaments in di:»iempered
times; but the Commons had never hcenqniel,
till they could get their liear chained up, uhd
their laws retluced to the old Ktnn<lnrd of treason
again : but yet those thitii^s had been done by
acts, and not by orders of parliament.
. He desired them likew \:^ii to renieni)»er.
That it had been one of the ehief pounds of
tlia late war' betwixt the king nnd his pariia-
aeut (in which so nsueb hlooti had been slied),
^M uu ordoiiiice of. ptrliunnit should not be
held equal to an octof psffiooNBt; and yii
those were orders mi both Hooom. And asv,
said he, shall we be defeDdiB|f, tk«fc uronlvrf
one House only shall bo equivalent to o IsaP
and shall be in force SLgainst our |{iwlsn nd
most sacred laws of liberty, which basohsn
so oontirroed to us P Tbi*, aoid he, I aai b«
able to understand the reaoon of; nor wiUay
man who shall give hioMelf the Iceik leinn to
think upon it.
He' then said, he deeired to oehnyMi
that then heard him, or any commenor of Eat:-
land, who wouU but take time to ooasideri^i
case (which may be any man'a in Enghod.)
Whether they woold be confrated to inreat the
Lords with such an inherent power overtbor
liberties, which they can no mure be exempnl
from than the Peers themeelvev?
And he said, that tlie Lordo ban akodb
made it appear, that they would not have nir
such arbitrary power placed in them, iurtbt
they had refused to pass a favourile act (whicfc
was for their own trials) nnly hy icasooflfi
clause >%hich was inserted therein, to bin
enacted the substauoe of this proMUt onAflriei
a law.
And ho said. That the Honae of Conmni
desirmg that auch a power miglit hws hn
enacted into a law (thoagh thenudves wssM
have been the first who would have irpesni
such a law), did sufficiently denote, IkiClfcc
Commons did not think tne onler woiU h
binding m law after their diasolation ; fbrnhr-
wise what need was there of n Inw, if dtondv
was in force after diasolotion, witbont akvt
U|»on the whole he sakK lie thooghl Ike is^
tcm|iGr of that time had given more wdgkt i»
the order, than any thing else ; and shk rf
their IordKhi|>s on that bench did know, hub
in what an heat it had been nuide, and liovR
had been since blown upon by the JLoids tb9-
selves ; who he was confident woiUd no net
endure to have it construed in that sense wfcidi
now seems to be put upon it (of sabiccti^f lan
to be under indefinite imprisonment), than Ihc^
will endure tliemselves to be every day patn
the stocks.
As he had said thus much to the oidcr 'taH
so he said, he hjpod to make appear. That At
c«iiirt's bailing of him would not at aJI iuUtsafc
U|ion the order, nor meddle with the juiisir
tion of the liords nor their proceedings ia aaj
kind.
i^r that he took it for granted. That whtt
is done by that court, and the courts of Ctna*
iLzy and Kxchequer, on Appeals and Writs if
Knor, was understood not to meddle at si
w'lih llie juriMdiction nor procecidings of ihi
Lonls in tliose cases ; and that this was jalt
the Kame, all being alike subject totbenMl
determination of the Lords, whenever they
pleased to call the Appeal,- Writ of Error, sr
Inipeaehment, bctbre them, and without any
pnjudiee to their lordsliips proeeeds
of those nets done by that or the
I the interval of |»riiameDls.
Besides, he said| it had hata vml
Ihitt court ta the juRiiee ^eat tn Eyre, and yet
that •* " "■'• —^^ '" • ' - ,— . 1 f\irther.
the
liad
allowing of
,.- ^ l.^Li i^i^;;i.i:d tlicrc), and
DA power ta proceed ti> tbe
Aud &o br Mid« there were direr* other in-
■tarices of ihit coarl' s proceedini;' to such and
•iich degrrtcB of exerciMini; tlieir jiowit to avoid
del»)»t ^c. where tl^e court had no junsdtctiou
to detcnnine the matter.
Precedents, he said, were not to lie exjiecte^J
which w«re exuctly fttttni to \m case, because
he Juriit tie bold to say, there nerer was &uch a
case before (when well considered ia all its
cirouiD^Unce!i), nor he fao|KM| i>erer vroiild be
10 : but be said, that lUeroJbre Ijoih the
*s |Miwer and ihe jwHjple s liberties would
l{h'* l''>f>''i' <suit«i*rn(Ml liinlirit i i's;uliil inri Ifiboilld
\i ■ '■■,'. lulling
ofintfti tm|icacUcdm iiariiament upon thekiu^^a
yvv\i ta that euurt« cotniuandinj^ the ttroceetlings
, and lhe_y have been di^ichargi'd «€-
ly by thai court, without any other
rcasuif mveii in the writ, but because the kiug;
held tlic fmrtips to be inniiceut and free from the
Perils ' lUem, As in the cases
of 1 York, and Grarosend
Wbo|» (1 I i:.. 3,
He mt Ho Hufifh Spencer^ and sir
ThomaK i^^j ni*-^ • being* mainprised to parlia-
int:ut, and yet ii)»t the latt4T wut ii^ion suspi*
eioa for the murder of a king (viz.), £dv?srd
ihc^t'Qud,
He saidf inferior courts had bailed to parlia-
Bietit^ abuul lb« P«p«'s Bull, hcc. Reg, Wriis,
He said, a single judge, (rix. sir Robert At-
kins) had lateW haileu one for irva»on« and
Aiioiher ( ! i; and that he did hinisrlf
h^ir hii> Jt of both alloweil (an to the
le]|til pan) belore the king and council.
He said, that kitii^i* had formerly abotishefl
aocuAAtiops af ireasao, »nd iustanoe<l a case of
Tftlbot against Onsond in tbe time of H. 6,
And to shew how powerful the hare inttu-
tioo of kiii|fs to pardon hath hern heret<>fuie,
K:ed the dise of a nin'i in.^Nif.*! of fc
(without any coun^ l forih
(4" pardon to tbe c « [» was
^^^ _: to the indictment, and aiiio to his
tiafne; and yet because ihe cuurt perceived
that it wun thr k)i»j,('a iiitciiiioti he sftould be
pardouc't)« he na& letnaiided tog'etabetter par*
^Jun, %ti Am. p. 46.
And he did tticreunon «iy« tliat be honed
the kiotj'M intt'otiun *d pardon as |o liim, bad
httw sudicienlly declared to the whole kiug*
And ju short, he taid, Tliatif tbe matter was
proper tor the jiirisdictino of thai court, hfrfure
It was in [tarltainent | if* hovio); been there,
" not lake away the juriicdictiou from a com-
1 enurt, itheu thv exlriordinary jurisdic*
I tailii ; wliirh was not to be syppose<K*ould
ly aU Oilier juriadictiiws asleep^ wtcn itMlf
VCIL. XI.
A. 0. 1678—1685. [850
was not in bein^ ; and esjiecially when that
competent court should do nothing in contra-
diction to the procecdingrs of the extraordinary
court, as he hoped he had ma<le a()pear thai
that court ^otiJd not do by the bailing of htm.
Whereas^ on the contrary, he said it \¥m^
most eiridciit, that justice did fail in the highest
concern (which is that of mens* libcriie»')» un-
less he could he informed when and where he «
raij^ht certainly be either tried or discharged ;
for that (as he* had said before) it wa«« agrt^ed
both by lh*» counsel for tbe kinsr, nod the
counsel for th« prisoners, in the ih oti
the grand H a be(i5i Cor |ius^ that itn-
priaooinent waii held to be perpt'tnai inkjitii#oii-
nient, which the Jaw did admit in no cast*
where the i)""-; ■' i:tf*nt wm only ad cutto-
diam, Aoti i his had been lutt^ndod '
hniad ciut%^,, . , L it could tiot be denied,
but it hud already been ad gmvrm prtmim^ anti
without any iiarticular cau!»e yet shc^weii for
which he ougnt not to bt^ bailed hy law.
Me then said, Tliat l^itleton luid declared ia
his arguments^ 5 Car. That if tresfion in ge-
neral jihould bo hehl to be a snfficient return »
yet that the Kiug's-bench inig^ht bail : And
the said Littleton and the king^s attorney ii|
their arg^uments (one tor tlic kin^, and the
other tor Mr. Hebku) did agree^ That wltera
tbe party could not avoid the judgment of tht
taw., nor that there was no danger by his being^
at liberiy» he ought to be bailed after long itn*
prisomncnt ; auil at that time, six mouths was
taken to be b^** » iiiniiis;nn(i|f n!
He said 1 in lord Coke's
lustitute^^ ^' , uch imprisoQ'
mcnts aii he ooinpured lo the imprisonment of
8t. Paul, by the centurion, who fjr^t put hina
in chains, and then inquired who be waai ana
what he had done.
He said he vvould not compare las case ta
that ; but tlmt there was so much of resem-
blance in ii, that he had tiecn in chains, or
w hat was there meant by chains (which was a
prison} for above three years, on a pri'tencc of
treason, without being told to that day what'
kind of treason lie had committed ; which had
been done in nobody ^s ca8e but his, and by so
much the greater wn^ his haidtehip.
He had also both been arc usefl and com*
mitted with out any oath made aguunit bim.
When a day had been appointed fur liLshear*
ing^ his counsel had been forbid to plead inal*
ter of law for him.
It had been acknowledged, that there waa
no treason contained in any ol' tha arttelct
against bim^ if thev were all inie.
And if (ht s ' '' ji true, and had apionntad
to treason, \ <' sliewed the kiog 's uar-
ilou, which liio release both the cnitte^antf th#
itDprisoument.
'y\...i 1 . iites that fwinlon^ be bad hii ma'*
J- i ration in full p^irhameat, boUi of
ht' : ^ ..4cc,and that he would grant bimhis
pardon ten tintcs over, if this were dsteviif«$«
111 at he had now had his majesty *§ cuattskt
Id bia baili a aacond tJuie, df<dar«4 to Uiai
31
851]
t JAMES tL Proceedings agaMH t/wmiu Ei^rl ofDanb^^ (SM
court by tlie attorney- general by the king's di-
rcriion.
That in all these fbrei^ing particulars, his
case was sin^^ular, and different from all others
who are or have been made prisoners since the
bei^iunini^ of tlie late plot, or (as he bcliered)
Et any other time.
Besides these things, which arc peculiar to
his own case, he said that there was also what
was common to other cases as wdl as his.
The length of his imprisonment, which had
been above 40 months.
The bcin^ confined so lon^ under pretence (as
be conceived) of an onter of tlic FTouse of lionls,
which neither directs nor implies any thing to
forbid bail. But in tl^at also he had what was
particular to himself (which he had already
•aid, and desired leave to repeat, because it
would deserve their consideration), viz. Tliat
he was at lilierty, and had leave to be a silting
membei* in the -House of Lords, at the time
when that onler did declare that the impeach-
ments, appeals, &c. and the incidents belong-
ing tu them should stand in statu quo ; so that
(as is already ob.served) the status quo (as to
liim) he again said, was to put him into a stale
^f liberty.
Lastly, he said. That he had no prospect
now when any parliament would sit, and by
the examples of past parliaments he might rea-
fonably fear, whether, when thry did meet,
they might sit so long as to give* him relief;
fbr that hi? petition haJ been read the first day
tliat the last parliament entered upon any pub-
lic businc.w ; or whether greater business of
the kingdom might nut (as it had done already)
■o take up their time, as not to give them lei-
iiure to consider the case of a single person :
And since this had already fallen out to he his
misfortune in tiiree parliaments successively,
he took it to he but too plain a demonstration
of his lying under an indefinite imprisonment,
unl(>ss he should find relief in that couit, for
that there was no otlier to appoal unto.
He said. That in those great and eminent
casts which fell out, 3 and 6 Car. about the
bailing of persons committed to indefinite im-
])risonment, the judges were then very posi-
tive against their bail, and yet changed tliose
opinions afterwards ; and so he hoped that |
court niiirht do upon a due consideratio:i of his ;
ease and rirctnnstances ; or else he hopod that i
his lord-:hip would convince him, that fiis im-
t>ris »niin:nt was not inddiiiite, by leltitig him '
iwovf lit what prefixed time and whe
other side, he shoaM be mtnj^ that Ins am
should be made a preecdent aninst law nl
against English libertr, which be was nrR il
would be, if he should be continueil to Kit vokr
an indefinite iminiaonment wrhbout Mog fad-
ed ; and he said he was not ashamed to ny,
in the behalf of all Englisiiiiieii's liberliei, ai
well as of his own case ; that it was a ctt$
which did concern every man to takecaieafii
the consequences of it, and which did cry kfoBf
for relief.
He then told the doort, That he had Irai-
bled them long, but that he hoped it woaM bl
excas(Mt in a case of that momeiit : And is tkt
first place, he said, he hoped it was plam, te
that court had it in their power to graat bia
rehef, if they pleased.
That it wah as plain, that there was iiodn|
in tlie Lords* order against it, and that tbepn^
tice of the Lords bra been otherwise, eves a
the behalf of commoners.
That it was apparent, that both that ooa(|
and the courts of Chancery and Excdbeqoer, 4
relieve npon appeals and writs of error, winch
are in the same oi*der with the impeachmea^
and yet do in no sort meddle with tlie jodia*
tare or proceedings of the House of Lords.
That it was manifest, chat let the order h
construed as any rnaii pleases, yet that bdsf
coiiltl be nosortof jnd(pngof any |ii is i idf^i
in the sufierior court, but would leave the jo^
meiit entirely to the parliament, and wm
continue him a prisoner in lotr, bound ta^ppev
befiiro that extraordimiry cowrt, wheaiwfMi
majesty shall he pleased to call it ; and te nil
it was more evident, that otherwise be mii
indefinite prisoner, and at the king's will m^
for his liberty, the consequences of w bicfaewrt
man ought to lay to his heart, with adradtif
it, whenever they shotild live under a prsKC
that might not be so merciful as odir uniwd
king ; and he tioped the court would do^ est*
sider it.
Besides all this, he said he durst conftdeiilj
aflirm. That there was not a precedent mm
tlie conquest, of any man's being refused hi
under such circumstances as his Were. Wfacrai
he said, the detaining of men under kmgii^
prisonment, ought either to hare expresi ht
for it, or a good number of prec^ents, sai il
good times to justify it, and not any singteii^
stance or two (if they could lie produced] iHhiel
bethought they could not.
And he hoped that precedent, which he W
alr^idy mentioned on his majesty's
wouldbo very well considered, which
e he
might H'sort for "remedy, which the law does, -.^. , , __
without question, allow' to all men, and at a!l the king's court should keep the king's pri-
tiaies. soner, and at the king's suit, in the king's^
11^ said he was a very reasonable man, and | son, with the kind's pardon, and agamitthi
Vhvi'be whs conviitced by reason Aipon tvhich : king's will, twice declared iu that couit by Kb
li« vvai sure all laws were foundetl) he could Attorney General.
be coutciiit to suffer still, though his imprison- I He said, hcshould conclude with letting Ui
nient had l)c>cn so long already ; fur that how- lordship knoiv, that as the ktng^ himaeir kd
-,««— 1 t 1 : . ... A> sufficiently declared that there was no dsBltf
ever he may have been misrepresented, for an
arbitrary man, be would rather perish in his
pritODf tkan have any thing done for him
Whicb the law fiouU not warrant; B\il,QU the
in the lettmg him hare his Kberty,
such bail to offerto his lottMiip, m wooH M^
fieienUy sfttiily the Wortd,««ft htihenH H
SM]
Jbr High Tr»
foiiheofuiatf to Aoswer wben aird wliere tliat
trf '' "M ~rnfnrit; amhlifo, lichiipeil, \he
I la tor dctt^HUiuu in a nrison
> Dol appearing tu aUtie
^ 'y mifiirerecl.
And II it miffht not seem ioo ^reat a vai^hj
to nay (ulUiaugU th« true rcAson dots take
aw H y (be vtinit v of Lt, b«cauM* it wouUJ tiut be
|br bis bnt for tudr own £^kes» as «vbit umy
happen to be tbett' oun I'asc*)^ Ue said, he itofn
|i«lieire, Ue coubl bare tbe major ysxri ol die
llo^^ of Loriti to Ue \\h bail in tbis cost:, and
90111 c of tbcjse very lucd» who were for tbe
' ' ' j-b »ulia tb*t»ense
[<at u|>on it. \i\90'
t>^uau uu uo more to fear in
> buiJ, iij;iii, he hoped, liters
i,.' t!iv(i,'e 10 deny it. And
s there before very
u.^ uiil^' consider what he
inaLiti^
fvbicb
i:
^41
ud !»aid^
I Tbe Lor(/ CAic/ Jmdct th«o tpcaking did
fay, Thai tlie eart of Danby biul xcemed vj
itiliH-t tt\mu the ctiurtf as if they bad denit:d
iiim iuii'tice in not he.'irinij hi»* coiinseL
l1i«t tiie «iiH 0^' Uunby dt^ir«it Ittive to ln>
K ifrropl bis lordship^ savinur> That bis lordHbln
^" ,kftd mUltiken hiin^ for tliat he bad said no sneii
tbing of that I or did be mciiu of that
etHivt f but > f€ry well knuwo, that
)iit counsel iiu.i unn iofbid to plead for him in
corhvr place j which iv as then ucknowleHg^cd
iHilif'T' >^' ^ »o be very true,
be I Justice then procefnied, and
Mtd^ '1 li^, . L.i lordsbip*5 saying they needl-
ed not to tear J became he did bdieve the
rtfst |»:>rt of tbe forda woubl be his bail;
I- of aoottter <!Ourl tb»t
hi lice upon tbeni) or that
the) ^if^jiild do such Ibin^ as they fi*nred to be
cahrd to nil aorfiant for ; b^ilthat thry were to
$**^ ^ by the doin^ of jitsiice.
1 braH bi»* lord»j|i5p ^^^^h ?i
u iM f ; nod that be had snid
.!!„,>, and with miioh iimte-
I * k n ixv not trenseless of tbf?
I'l uliif»'s case, and of the
c Ukcwise sensible of the
.•t Ills; iMrfKliin vhoiiK} Imvt?
' s.
' ,, : ^ ' : ■ . i\»
much as la V hi bi^ power.
That it wan not denied, bcrante tlmt eonri
Cttidd not bud ftir trea*Krii ; f v bad a
j>owet' lo bull in aH ca^es v. i] if the
court nasv <rani»e. Nritber would ihti indict
tarnt wbieb was fouml n^ninst bint fdniut nir
E<Ii * liindered ; nor wan
]tt Ujrdat which bin-
J" to law.
That be did uf$tx^ . . ,,.ur tblni^ m^rutioned
to hm J«rd«bi|» f mid tkat it was ft ?ffry bmrd
gri:.l iM
■11 >.B l:..
miiiiv H»
:;JrT,.;>| ij
nt ,s ; :
mI i[i;if I
hur.l'.E,^
^ 'ii Ik-,
^«' -
! tij3, >»l
WOI
l(l<
, ll
tJO
Ar
1
A. D. i678— 168S, [864
case he sliould Ue lio \ou^ in prison i Bnt item
was tbe misery ; they coubi onty eotnpasKioD*
nU^ bini ; Inr tba| bi« lohUluii was Impitiiuned
by an higher bund, and wucre they bad m»
power to intemieildle.
Heinstarirrtt iiiitirtitientsfortreasoits. nnJ s4-
?eralolh» ijti!i/m wbichtbr l
men; but II e, tbo supremo n
of tbe nation bad laid their hands u|M*ri U|
which was allemled by the House of Com*
tuttm with an impeachment.
Wbelhcr thei* tonUhip!* had cause, or not
cause, to commit hts lonlship» they could not
Etts(icct ; but that ihey ou^ht to beficvc ttiat bit
I ' *i a ' . ojiimuted ; and that their
I nature dcUberalion, would
|: ry had a jurisdiction over
all l!i. ^„L „ Ujc kingdom (that only ex-
cepted). And as it would be very inconjjruous
Jor an inferior llhui lo fi.iil Ailiurn ihcy bad
commilied, or : * question j
so wouhl it bu 3 i^mtodoift
this case, because the lordis exceed their juri«<
tbction, and were ttt>ove ibem^ He said atso«
That tbe opinion of all ibe judges In England
had been taken therein, and bad delivered their
opinions, that he could not he bailetl : and
Ibat tbo truth was, bis lordship \fas imprisoned
by loo high a court tijr ihein to bail him : For
that hii^ lordnhip wiui not iudetinitely imprison*
ed, as he bud alleilged ; for whenever bis Ma-^
je&ty is pleased to call a parhament, lu« lorihbj|
would have remedy.
That the king Jiaa power to do it when bfi
pleast^s ; and tor Ids people^s good, no ttoubl be
will, when bo sees nt : But thai at souie time
the circumHlanceH of state diifer from otl>er
times, rind that it may not for some space o|'
time be iliou^ht convenient : And though this
may prove tniscbie%ous to a single pertioh, or to
two or three iiersoos, yet such things must be
endured for im good of tbe public. He &»ii"
lilso, Thut if that court should commu a qiuii
for High'Treniioo, and tbe kmg should ad-
journ Iheiii from time Ui lime, that man could
n ■ « ' ' I . - " T^ tt again: fek^ that be
l.iplud ^aid) that aa
U.,^ ,. ,.n ,'j--, ..' '^'^^ under a temporary
in definite impreionnievit
He conctui.U'd with telhng his lordship, Tbtf]
lie mu«!l 1h* eonieirled to wait the king^s pie
sure uhen he would call a pailtauYent.
That, for bis part, be w'u» lie! ore of opinlottfl
tbut they coutd nut bail his lordiibip, and
wt» an atilL
The Earl of Danb^y to all tliis answered^
that he must couless, hit can* diii Ungic to bea
bi% lordship say. That the king b ' ' i"]
much as by in iii» power; when bi^
' <i»nM)thb^ hisCoronatt * '^ ' .«u.^ io«iJ
to siee riglil dime at ' hi* sul>*(l
jt.i^; and he desired to L. ,-, ,,..r>i".> *i.!»l
wan not the kmt;*^ eoyit, and vrbcll t
nut deputed u power to thcuJ lu ioe n^l.:
to all aocordiitgly f
855]
1 JAMES II. Proceedings against Thomas Earl ofOanbjft [U6
He said ii1«^, That he was now under greater
aroazenient than before ; since his lordship had
both granted, That this court ooiild bail any
Ti-eayou, and that tlie onler of the House of
t/jrds did uut hinder it ; which, till now, he
iconfest, he had taken to be the only obstruction
to his liberty.
That he fiad hoped, he bad satisfied hislord-
ahip, that althouj^h he was iinprfsoneil by an
hipfher hand) yet that thebailinj^ of him ilid not
intermeddle with ihc jurisdiction of that higher
judicature, and he had yet lieard nothing to
ahew him that it did.
That for what his lordship hail said of the
opinion of all the judges of England, being
taken in his cnse, he must needs inform his
lordship, That that i^as a mistake ; fur that
the opinion of the judges had never been asked
in this particular case, saving once, upon peti-
tioning the kin:; for liberty to go to his coun-
try-house at Wimbleton, with a guard, or
otherwise, as his majesty should think fit;
ivhich petition was referred by his majesty to
the judges : And they (according to their
wonted prudence and caution) did only report,
That they thought his majesty could not legally
grant the petitiuner's recpiest.
1'hat wht-reas his lordshin said. That he was
not indefinitely imprisoned, for that whenever
his majesty is pleased to call a parliament, he
will have remedx ; and that he must be content
to await the king's pleasure when he will call a
parliament; he took those to be fuller argu>
meuU than any himself had made, to prove,
That his imprisonment was indefinite, and at
the king-s pleasure ; so that he was now more
fiillv Ciuifirnied than ever to be of that opinion,
anrt wished that every man, that heard that
doctrine given for law, might fully consider
the consi'fjufnrcs of it:
IJe stud tiirilH»r, That his lordship ha<l mis-
taken hi:n, in thinkiripf that he had said he was
undiT a leiiiporarv indeiinite imprisonment;
for that he had s:;i(l he was under an absolute
indefinite ini()risoi)mcnt: And that his lordshij)'
had rather proved him to be so, than shewed
mny thing to the contrary ; nor did he know
what temporary indefinite did mean.
The Lord Cftkf Justice then said, That he
was not a judge at that time when the judges
opinions were asked, but de&ired his bruther
Jones to relate how it was.
Mr. Justice Jones then said, That he re"
memhered the case had been put to the judges^
Whether the lords in the Tower nn^ht he
bailed, and that it was then the opinion of the
jiidges that they might not: But he said, he
did think the earl of Danby was not particu-
kirly <oncerned in the 4|uestion at that time,
but that it related to the I'opish lords only, and
that there was much diO'ercnce betwixt his
lordship's case and theirs; besides, he did
think, that was at a time when there was a day
appointeil for ilic meeting of a parliament.
The Burl of Daninf then said, that the qties-
UiM which WM put at that time to the ^udgei,
about the Popish Iprds, did iml CMiccni bis cue
at all ; for tnat it differed from thein u voy
many particalars, which he bmd already nea-
tioned, viz. Of no oath agmtnst hira ; no spcod
treason alledged, &c. which be was kch H
trouble them with repeatinf agmin; bstlie
supposed, that the then opiDioo of the jodga
ought not to be made any aripimeot agaiul
him.
He said also, that the Lord Chief Jwtiee
hail argued very strongly for him : Fortknii
was true. That the king mi{j[ht call aptifii*
ment when he pleased ; but if therefore a dm
must stay in prison till the king did please a
do so, he may (by that very argument) beihere
all his lite-ume, if the king pleases; which
confirms what he had been a great part of \m
time labouring to prove : And, he said, he Boa
confess, he did espect to have heard stroagv
and more powerful arguments to have en*
vinced him, that he was in the wrong m wbii
he had said ; but that now he was ^doko-
cou raged than before, not to give over a cue
which did so much conceni every man in £i^
land.
The Lord Chief Justice then said, Tbsthii
lordship was mistaken in i believing that Ika
court did keep hira in prison ; lorthat he m
not kept in prison by them, but by a sapcnr
court, which was too big for them to awUe
with, or to examine what they did.
To this his lordship answered. That htksi
wrong done him, which must be done bvM
body, and that it was a maxim of ttie hv,
* That the king could do no man wruag* (bda(
advised by his courts ;) besides, that his mi-
jesty had twice shewed his TOosent in tba
court to have him bailed. Neither oouid be
say, that the lords did him wronff, bscw*
there was nothing in Uieir order toning ha
being bailed, (besides their own practice t«lk
contrary ) and it seemed now to be said, thai ii
was by the law, and not by the order, that hi
was kept a prisoner. He said, he woukl vJL
say, that that court did keep him a pnfODS,
'but by somebody he was sure he was kept pi-
soner ; but perhaps it might be by the ttnii
since he could not find who it was upon Eifth
that did it.
He concluded. That ii' he were legally in-
prisoned,* yet by Ma^rnaCliarta and thePieli-
tion of Hight, &c. it was impossible for tt
Englishman to be without some Certain pni-
pect of relief in a reasonable time, they mmt
to have justice done tliem by the law at u
times, and witliout delay ; and that he frasoov
in the king's proper court for justice; wlwtc-
fore, as his lordship had given his own opiniosi
so he did desire that every judge wouki hi
pleased to deUver theirs severally.
Then Mr. Justice Jones said. That bewM
not ready to give any present opinioD, ikfsn
having been so much, and some ihiiigs i» va-
terially said by his lordship : Bat thatlorhii
better satisfaction, he did desire to Mdr Mi Isid-
ship a question, in a point -whUih dftd tfach
-fel] Jqt High Treason*
-^tick with him^ ind woiiM go a greot way if)
neiit :
giihhnji hilt judg^rae
that hJ9 lortKhip w«9 nii nbte
ind be i%iis conJidenfi
til uii^e him an
Answer to it, m u i; Hhtcu was this:
huf )ordeihi|i (he i^pfn chnr^ed nith
trea,s4.m Uy nu impe;i« luji* nt^ und had plmded ii
uardoii lo the uiipiui-hnirnt iKtbt-e ihe lonls ;
He suiil h€ tt>ok mat ptea lo he a tacit confes-
tion of |;^iii't lo law, (though the party were
ne\ev ho juiiuceiii) and tlmi it h^id W'en a taot
fdeaduii^ of guilty; tn&oiiiuch, that he did he«
iitfve^ there ctmUi be no admittance of any «e-
roiid jVlna ; tii)d if la^ he did cunffss, he did
not «ec how thiit court could then hate any
thiug^to du nith his Inrd^liip in that case ; bilt
It iva>i w hiil ht hud not well considered {thougfi
At pre^i'til hv tooL the law to be so,) and be did
desire to heiir ^itiat liis lordship did say to
that?
His lordship ansivered^ That he (fate bim
l^teat ihunLii for letting hitn clear any objec*
tions, and j^ivin^ liira huerty lo answer %Ueu\
ai vrell ax he could. That this indeed was a
5«€Bticm of law, which he was bnt httic veried
ill, but that he was at present able to say, that
he had read the opinionB of some §preat men of
the law, lo [ye otherwise-, and iotlanced whut
the lord Coke has said upon the case of Graves-
end) bmhop of London, 7 £dw. 3. who did get
a writ of diticharee to the King's- liench, aud
ilid not take a pardon ; upon which heoliser>'ed
the said lord Coke to bare said, * That it may
* be he thought ihnt the taking of a pardon
ii| have implied a ranfewion of the fault,
(trvfore ivent a new way * but that wus
nustake, for that no n>ftn that is wise and
frell advisL'd^ will refuM^ Cad and the king's
ardon^ how #it\en w>e% er he may have it ; for
' there iii no man but olfendeth God and the
* kin;,*^ i^hnnst tfvery day, and the pardon is the
* y.A\'''^i aud stfrebt way,*
And thouj{l» at ufesenl^ he said, he was not
jirovided of precectents in the cǤe, yet he ve-
mcoiliered there wai a ciwe of a coinei* tried at
Uurlmtn upon a pardon, where the panfon
proved defective, and yet be waa allowed to plead
over.
And he told him, That the sanoe question bad
lM»tii moved in the tlouiseof thirds upon hisown
case, where divers lords had declared them
•elves, * That they hopeil it nhould never pass
* for law amongst them, that a man Mhould
* not bav<f one plea fur h\% life ; and gave lor
* frasofj, Thai if u pardon wart pleaded, and not
* admiited to he jjood, Hu ii «)•» j.riMmer had de-
* jiended upon whut 1 i had been u
* ^inii] iil»*j,. t»uT was a ^ ^ \ the court not
Mtf'n, ti he sboutd not bead*
nver, it would bo to en»»»arw n
* tii^u^A UK, ^wthout tn^ing him any plea at all
* for it/ And he conchided, Myiiiff. he tlioujf ht
that this quentioQ was rather goirtg into the
m«(rtlv of hr.« cause, than to what he only de-
^HUdrd, which wa** but hail.
^Mr. Jttstire iJitibm* then ialif. He mtiat ac
^ — — * —
# thm feU^wisg V«sinro ill Nard«Mi»
A, D, 1678— IG85. [868
I knowled^ there was a vast difference betwiiva
I his lordship^s case, and the case of the Topialll
I lorda in the Tower, in many material purlieus]
lars, whtch his hardship had m<^utioneil : and hi
I ni 1 1 Ht confers be tliout(ht il one of the tiarde
cases in England. He said alifO, that he criul4|
not but differ from what his hroih<ir Jone«i half
said, a^tothe not huving iiUeriy to plead over jj
ff»r that be was of opinion, his torrUhip ouglif
not lo be debarred from having a second plea, M
the pardon should be over-ruled ; and (if I di(|1
not mistake him) he cited the instance of mii
llelley's case, (or such a name) and he biiidt.
that his lordship had said so many things i
great cousequence, that he thought tt did veryJ
w ell deserve further consideration ; but if \mi
should be put lo give any present answer, hdi
must then say (as my Lord Chief Justice hail J
doQe)t that he though! they could not bail hmi
lordship ; but he thought it might tvell de^^ervi
further c»>nsideration.
l^rr. Justice liaymond then said. That hit J
lordship's case had so many weighty circunMl
stances in it, as ought to make it lo be very wclf
conskidered, before any opinion could lie deliver*
etl in it. That ior what had been said by hisi
brother Jones, about the pleading over or ool|f
he (bought I hut did not properly he before ihenii
in tliat place: that his lordship hud said bom«1
things, to which he thou^'ht full answers migblj
be given ; but that he had also said some thrngSp]
to which he thought it would not b* so easy til']
atiswer. That fur his part, he thouj^hi it was mi
case which might well deserve the du side ration]
of more of the judges, betwixt this and the netti
term ; and that he most acknowledge he musti
further consider it, before he would presume to J
gi%'e any opinion at all upon it.
A Counsel ait ilie bHr then moved, That a ful*!
of court mi^jht be in&)te to bring Ins lordshij^f
thither again, the first day of the next term. ' I
I'lie Lord Chief Justice seemed dinpletkietj
with the forwardnes»s of that counsel ; and lh#|
earl of Danby excused it, sayin|^, ItHaiiiOll
nuived by his desire or directions; but saidy]
That was all alike ui hnn, vv bet her there wer^l
any rule of court or no; for that they were tikft|
to be troubled with him again, and that bol
Luttrell's M8. *' Brief Historical Reluiton'* ml
the Library of All tSouU* College Oitford, re»T
lafes to the removal of thin Judge, v>ho was re>« I
placeri ".t.... th^ tivnch by king WUham, upon]
hJM \i t neiit of Judges,
** J, , J* This lacalion iusr lk>r.>i'i* the]
term, Air. Jiintire Ooiben, one ' s
Joitires of the Court ol' King '>^ ml
Q^uietus sent him. Many thmk the occasionJ
of his removal m, bet!ause he is taken lo Ike |
person not well atfeirted to the 4puo wurrttrttl
MgimiKt the ehaiier of ihe City t»f London; atiti
sir rrauci!4 Withens has a writ lu go out Mer^f
jeant at l^aw, and it is »aid will sue4>«d Kr*4
Justice Dolben : and Mr. Bonitho < i la)
sir I'Vftncis m Ins place of Htevvard t^ aj
of Westmms'er tn Mie gift ot the UtMi audj
Chapter ot Westmmatcr/^
839]
1 JAMES n. Proceedings Agabut Thorns Evrl ofDanhy^ [8tt
•bould oot easily (p[ive over a cause, whereiD he
took the liberty ot the subject in general to be
as deeply concerned as bimseh', and wherein
be had found so little to be said against him,
that he did believe be should be as troublesome
lo them as ever Judge Jenkins* had been here-
tofore in the defence of English liberty.
The Loi'd Chief Juitice then standing up,
said. My lord, your lordship must for the pre-
sent he content to be remanded ; and speaking
to the lieutenant of the Tower's officer, told him,
be must take back his prisoner.
And then the Lord Chief Justice immediately
left the court.
June 29, 1682. Trin. 34 Car, 2.
The Earl of Danby again moved the court
to be bailed ; when he spake as follows :
My Lord,
When 1 last attended your lordships and this
court, the judu;es (or most of them) were of
opinion, that wnat I then said to your lordship
might deserve further coosideratioo ; and
tberofore, my lord, 1 doubt not, but that your
lordship has been pleased to consider further
thereof.
At that time, my lord, none of the judges
but your lordship, I think,' made any very
particular objections against my being Miled;
and if I am able to oner any thing to your
lordship that roav give a sufficient answer to
those objections, I do not doubt but that your
lordship is so just, that you will not adhere to
any opinion, ouly, because you have been once
of that opinion, if aay thiu^ can be shewed to
convince you to change it. In confidence,
therefore, that I am before a court, which is
not to be intlueiiced by any body (how great
soever,) nor by any tliins^ but by the laws of
England, and by your oailis to do justice ac-
cordiug to those laws ; and he'itif well assure<l
of the care which your lordship will always
have to umiutaiu the English liberties, with
which your tordship is intrusted by the
king, and by the laws, and invested with
power enough by both to defend them at all
times, and against all opinions whatsoever :
ir«y lurd, 1 suy presuming, and not doubting: of
all this, 1 shall take upon me to add something
to what 1 have said already to tlie objections
which were then made by your lordship, and I
iiope I shall have liberty to answer any new
objections that may be ih)w njude.
My lord, [ take it for <; ranted in the first
pluce, lliat the order of Ll>e House of Lords is
no objeotiou against my bail, bvH^use your
lordship was pleased to tell me so the last time
I was here ; and then I do reckon that those
objections which have been made against my
being bailed, may be summed under these three
heails:
The first, my lord, as well as my memory will
Mire me, was, That as it was iocangraoas for a
* See his Case* Td. 4, p. 031, of this Collec-
\
court which was inferior to tliis, to bail tB|
man that was committed by this court, or ta
call in question the prooeaa of thi« cou^
so it woulcT likewise be for thia ouurt to do is
my case; for that- if a nian were commidcd
by this court, bo infenor court coald bail tbai
man (in case bis majesty shonUI think tit ti
adjourn this court from Uioe lo time) until tUi
court should sit a^in.
The second objection wa% That I am aoi
indennitely imprisoned, for that When his ou-
jesty shall please to call a Mriiaiiient, I wooU
have remedy ; and therefore I most wait nil
his nuyesty sbooldnlease to call a parliaoMSL
The third was, Tkat thia cauae ot mine w«
dependuig in a superior court, which was In
big for tliis court, and that the aiipreme cosii
having hud its hands upon me, ther^Mre thf
court could not intermeddle in that malkr;
my lord, these, to the beat of m j remenslirascf,
are tlie substance of the oljectiona then mad&
The tirst of these, I hare been loU wiibo*
do(»rs, is taken to be one of the weighliett «!►
jeclions against me, and truly I ebould beraj
glad it should prove so, becauae I think it nq
be so easily answered.
For in , the first place, aa to the caIliB|^ ii
question the process, 1 conceiTe thai bail ■ «
calling in question any nrooeaa-; and this cart
did truly think io, wnen in die case of Iht
earl of Shaltebury they did declare^ that kirf
he not come to them in the time of an aiHi
ment of parliament, they would have I
bim ; and, my lord, aa nothings ia nan en*
dent, than that this court and other ooeili^
meddle with the proceedioga of that sopcnr
court, so I do not doubt but to make aspar,
that tliey do meddle in a much greater oegrM
than what I desire of bail ; and thattbecsa-
scquences of what they do every day pradiMi
may be far more dangerous to the siutject, ibsi
the'ltailing of me can be.
For that part of the ol^jection thatcomfsitf
a commitment of this court to a cuiumitmcBtd
the House of I/)rds, and doth from thence cot-
elude, that because an inferior court to dU
cannot bail a man w ho is couimitled by tUf
court, therefore this court cannot bail a ass
who is committed by a superior court :
This seems so very unequal a comparing
and the inequality ot it so obvious, that traly 1
thought it had uot needed any answer;' fU 1
would desire no otlier ansuer from your loid-
ship, (if you can give it me,) tlian what aa ia«
ferior court may give to any person that sbsl
come before them with the like request : F«
they may give him good and sufficient reuoH
why they do not bail him ; they may not oalj
tell the party that he is commuted hy tbesa*
perior coiut of the King's-bench, and tint hi
must go thither for his relief; but they caa
^ve iiim good reasons why he must Jo so;
tor they can tell bim that the court of Kin|V
bench will sit next term, they can tall himwfa|
that term will begin, and they vantrilliini hiv
long that term will hwt, amfthay OB»lillkiB
that the court of Kiog's-ben^h 0%pB^^^
mr]
,f,t tfigk Tre
tnWed M the iiftrliiinicpiit
Rmy Iw ;
a«Mi« nay
wr ■ ■
^" i.
l»r**
iM
r;
itttk li
1. 11 an-
iwfefft 51
^M f»
fhit mai.
^•^«^n
answers ns n
!..pf
jMihkni, 111 (t :
h«
deniwl, htitUi«i i.
:.Le,
Anil if it \w 9t>, f
/in,
tkM no law
For tl^f* ^
iOiiMnd-
jouvn il
la iiKW,
Uie j^arty
r»iTi*» Q5
i\\\s cotnl
iH>u!d be
(which,
"•til 1, i tio itoi 1
lonitslii^i
3' sinke ittobt*,)
t nn nd-
jotninti.jn iimt is ^ * • ■
niii4 II I
iie iHiHia-
nieni \vrfc bin ut.
urumeiU, I wout4
not Uave irouhKil , ;.
U/.n - 1
n[ HmS is
hoi llic rase ; t'orihiM
Mig
iniiy adjourn 1 111'* ur »i
*t-
Riinst^fr, by ixii^^an oi n i -
rVt .:'^. 1
liiary oc-
ttisiftn, as in case of a |k-s«
► I'l .*"e i/r
M^mt'thitigf
oflhat nature (nnrf I know there liav« been
JirecetJenl'i of it ;) yel^ my lonl, them? ure iijjon
«ri:trftfvr<linftry oecaskms^ arid it *\^ imt to he
ftroii^bt, nay I am very <H*rtftin, tbiit \\\h ma-
ji»ty wiH never do any
1 ile[inve
ixvH 'lulijecls of auy oi t
law aU
Ibwi th«n ; m that in
oliU^es*
Ifatt Hte tcrrnu should 1
, a year,
I iLie be no
■ndthM^' ^' :
#)rtr»or/
<t ; but in the
©fhiM- ci--. ... .,x ,■ .^
, r Ir^t ..n.r. .'
CO oyi^fnifin, ihk
t*n1T- nr h!i< Hilt
I!
. isim 11 rfultic»iutiity
•r: '
, it h fl? ijiiknowti
Imw Kin;^ a ptiriimiH-fit
Jibfttl Mjt, as when it is
to «8if : mvfjmnrh tfiM
1 t.
\kf- nil this but to
h.. . ■
my wde,
«h
t|jal<»ii
be br.jLi.
lulv It makea
iMit til f
, that no roan
iviigflit |f» l)f' iitidrr <ncn
:ni
itid^-tinrto reatraitit
as 1 dr> : and truly, my
lurd, 1 thc^Ufrht 1
•hewtMl more ttmY^^x t
■'
■ f' "r^ a
ItJiiit? (Tt^nf^ril anisv^rr t
,lid
liefon) ihau 1 can do
J*..
,, .,, ...... ,4 -|>ar*
liciilftr.
For »hf jumijiil iih-r
rhfiii \W, That 1 ftm
lK>t Inr'
liat wheii
king %M 1
(n^ t n* 1
bate a rrrii
\ r,i,M.
<rait ItH ifir
IVul^
Mi^y
kiim* t
"•T«
Wltl»r tliun I ill* .
tio man but tin
hii. ' ■
t>\
1 ...
had n.
ttMtf» .*.^.. i
• " 1
-i i .. i jr.,.. . , .,, ,o..I1
fcltaib bMtip ttraij am tud
lintlctiDil^ly jfi^pri*
A.D. 167B— 1685.
sotted t but if ibb caootH In: {)ro?«d nisiili
but that 1 mti^ u ait titl the kin^ shall filuaa
tD ea!l a par linn iciit ; and when hr shall <ai1l I
parliament, 1 shuU br no mure certain of
reined)' than liitherto 1 havi- ln«n, Irnly lii^nl
tjball need n»i olU«r ofuih< il hni vrturkiriiahij^l
to prove t am ni}it<>r an iinprisociif
ment; and that aitv luiit « ^ nd may f
§0, when the ku ; and iitiw any ^
trine c^ii bt' m*ir4 v than that, «r IdRt I
bederended by iuw, whene?er that matleri
be brought into queation, mtlirrt than *
your loiHisbtp or 1 nmat be jmfi^« and tboai^
who will he parties «o much rotic-ewied in ^^M
ffuei^tion for ihrir own hakrK^ as vieU as Him
public, that I believe there is small dnnbt KfJ
be made liow they will then decide this <
tion.
My lord, if it sliould then be found that tliid
would hold n-ater, and should he mfantaiBtl'
for gtxK! docjtrlpe ; truly, I thinks there wci
need no other arbitrary pt>wcr lo be §et up ttfl
make men ifuit this couDtry ; For as to anf
man's liberty, it mig:bt be equal to bint i» bctk
he lived uiMkr the Frencti gorerocnent,
un<fer the Grand big^nior's g^overnitienl,
under a govern men t so arhilrary as this ik
trine aloDO wottld make niti'«i ; and tbei^fu>€ I]
make He dmibt, my l^rd, hut that ynu will I
very careful bo e it us for latr. I. J
As 1 should I ry thsi there abo
be any such arhtiuMv uitt riiie tatig'bt to self b
Li«tf*i prrrogstive tug her or ^preater IImo
ougUl to be by la«v, or than this king- desire^ I
Mt i should be as sorrv that the king' i!lionl4ll
ru,i 1. II ,. tU^f .i^jit wb'ich duiy belongs lo hini|^|
i and power at ell times to ad^
^, to his subjects, and which {^
never heaid dented to the kings «»f Kn^aoif^
nor I hope I never «holl i And, my loi'd, 1 itiu
say, that the preaervation of that right lo th
ktn^, would take away all uretences fur any (
these dangierotis and new dodtrinrs \ for it tlitl
kin^ may udmiiiistai' jtisiice at all times to hai j
aulyects, (as it hath ^>een the care of paHiaaJ
raeiits, and by Ma^a Charta itself that
should) then* is no reason Ifft for any of tho
thini^s lo be startrd tir put upon tis«
It ts tme, indoetl^ahat the king cannM i
laws without a «iliitHMOt*, but 1 did
bcttr in my whole life, bnt thet ^' - "••
ttliler justice without his parli;t; if J
roiihl ii«il, his subjects Would In . ,. ,
it inn; for Knmly it would be a *ery bari
if his yuhfetfti; ^ould harvc no hopes of
I l: rightiMi by their a(w«iaigD*« michorilj^
I i i«' r hy himHcir, nr in h^ eOitHHi til sU «#!««»
tutd at a't tini#)d.
"^fhp I|oH*«> f)f ¥^r^ in parliawwnt fit ist
Imt thry •«; virtU
i»d il ihr i id y
: . . »^'<'), ilK]
vuo«% nor ai^l
' n tllS
I sQt^tr atioU be ifiritnpiniiil fvm Mfm iU** tiiu^
863]
SS n. ' Proceedingi agtumi ThomuM Mini ^fi
M well at. upon Che ollier» and cannot potsibly
The thtnl obj^rtioo that w«s mtkde^ it, lliat
this cauM! of mine is df paifling' io ptirliainent,
wliirb h a fiu|>enur enurt In thii i and llial tli^
supreme court haiiu^ \au\ its haiids upon tae»
ihertihre this court cunKctt iDteniie<ldle.
Mv lord, there is no mUn living that huth a
Hjetler rcTpretice for I hat supreme court than
I HaTe, or thai ivill t'y further than I mil, lu
defend it» in all the ricfhls and priviletfes that
belong to it by law : Nay, my lord, 1 have so
much a greater esileero tor that couri» because
I am sure it will never sufler me, n<»r any man
livinj^ to go unpuniKhe^li ihtit »hall trangrtisis
the law^ or that shall go about any
ay to
make tbem rransjfressors of the law, or to make
thera iuch as would be reslraintrs nf ibe Ent*- ) no r^>oni lefi for the itt»|juie
hah ]il>erties beyond uhut ihe law p«-ritjiu, t preerdc^nt^ of that k
ils oame to be mnde use of, nor 1
be made propertiea, to aufifKirt aecli ai
a nee as may ccmcem Dnf only iln-oKelpB, U I
tiie whole nation* fKt^»t — "tm a^, ttUall
l»nsleririe$ ; atiil by uot oulf l^a I
CliaHHftndth**relKif.i - ...^St w«HiUbrcii^|
ed, but (he late a4;i i^r litil»raa Corpus mj 1^1
be ehiiletl by this devtc« ; n\xA ibc !i#r^»,
(wtieri it Bhall mef*f a4f
stead of kumrinjii^ their lib'
been heiJgrn^ iu the cuc4<^«*^ ; lot li»Ai ikmtf
now a new way fcmrtfl cxft, by whtfb »•! ■* f
tiir our lil>erlie!^ riL
thi^ cannut t>e *<
would fancy) the ku
welt as the Commons ,
eviilences to the coiiiriif\ oi
A
They have shewed the routrary, when it was
offered to them by a bill iVom' ihe Mouse of
Commons, that they would have no Sitcb ab-
ajidute authority put inlo their hands over tlie
liberti^ of the subject^ but diil then refuse it ;
ao that to say^ that supreme court halh kdcl its
bands upon any man's liberty in England, fur-
ther than the law permits, would he to put an
unjust odium upon the House of Lords to tlie
nation, instead of doing them right ; and there-
fore I must nee<ls say, that in this particular
ease of my own^ I 6nd unly the word and name
of superior court to be made use of against me,
botjiothinff in reality ; just as they were pleas-
ed in tlMi House oi' Conimous to use the word
traiterously, in the articles again&t me, when
there was not a tittle of treason in them, only
that by calling it treason, it might serve to lay
«ie where I am.
But, ray lord, I know no court that is supe-
rior at this time to this court where I am now ;
and bow any thing can be said to be depending
in a court that hath no being, I think, will not
very easily be detejuled from nonsense, with-
out liaviDg the matter extremely well explain-
ed ; and whenever that superior court shall
liave a being, my cause m ill then be before it,
l>y my l>eing bailed to ajipear there. And for
taking, it has laid its bands upon this case of
tntne, it ought to be shewn in what the superior
court bath laid its band upon me, so as to keep
lue from bail, when neither that sufierior court
itself (though it were willing so to do) is able
to give uie any relief, nor that I can get to be
trietl or dlsscbureftHl else where, nor have any
time prefixed when that superior court shall
lit; as if there were uojiistjce letHn Engla^id.
But if it be so, that I shall neither be baited,
nor have it shewed, what hand the superior
court has laid upon me to hinder it, then truly
auy man may be so concluded and the argu-
ment may be decided, by the will and pleasui-e
of those who have men iu their power; but the
shadows of things, when there is no substance
ill the argument, will not satisfy reasdnable
ti^n for an answer, why ho public a grievance
aball not be remedied ; and 1 am confident,
that the superior court itself will never suffer
tli«t tdoilwl
it bath a double cmi^^
to put your hmlshij* in ..,.,
It is in the 5 n.4, in the tr^nU ofil
Tower. There you w rtl lind, ihi*t ihe(': 1
nions camt! to petition the kiug^, ihj
je^ty would be pleased, nut la iin,
arcbbihhuji of Canterbury, the earl «<(
berlaml, and some others thst were n :
accused for ^ing in Uie cun^
Henry l*iercy, and the Wing' ^
quest, aod does agree he would uoi j
thera.
I have quoted this the rather, hecMU^i
double precedent that is iu tUi?* ense ,,
the sante day the Commons came'(iL-
majejity ha*l Kranted their fortiier re(|tjf^il 1
did further petition his majesty, that bti^
be pleased to affirm those lords fwtioiii belli I
{K'jmised he would not impeii4?||^ to be balEO
ioge-men : and, the king did g^iant ihat^l I
by which it was then taken for jfrante«l, Ai
be had set them recti in curia (even
they were iu that conspiracy with mr Ilci(| I
Fiercy) ; and mv lord, 1 giveyou tlm instatfi^ I
that yoQ may observe two things by it : Vti9, 1
That the Commons did petition the king Dom I
impeach ; and when be bad grotitc^ij that, i ]
appears also, that by the king's flecliiriiig#
to be bis true liege men, it wa^ by the r
mous conceiveil, that the king* did set
recti in curia ; by which it does appear, wbil I
great regard the House of Ci>iniunfiK bad M 1
the king's bare affirmation, of tliiir bein^' ba
true liege men ; and I hope, that nf-ither^thtt
king^s power nor credit shall be lesf» with ha
owu court, than that kind's wh*i with liis Houtt
of Commons ; and I am sure, no king's af^
formation can be greater, nor more public, baili
to his parliament and kiogdou), of any maii^i
being a true li^e-man, (to use that old wod|
than the king's hath been concerning ttiot
My lord, there are some men very unable la
distinguish (though they would) bt-tween ii^oual
and good sense, and there are a great tnan%',
that are as willing to let men reiimin umlcr
their mistakas: but since it weighs a grvtit deal
with some who do not very rightly di»tinj|^Mir*bt
it will be of absolute necessity for ma to oxplaii
it is timl ii meanl by a etse dcpetirling-
n-iriinnjf'r.t tt Kpfi (here ix HO parliament I
rn by an instance hi »
^ in pftriiometit, in which
when the purhnmi^nt in aiuiufj^ and so the
jfit in rrally anti truly Hcppndiafir In Uu^ court
IJhat i« in hnna^ tttere cin (ilurin^ such sitting;;)
lie no efecniion siieiUiptjn the iutit^mefiL hut^
my Icirtl, no sooivrr ii ijie pftrhiuncnttii&sioUed,
but rxp^-rtrnce shrwa, that execution may be
iiu ' ■ ' ir()^ anri the properties nf
ir5 I ; «ml theretiircit is by
thij* siiuH umi\ i»i;4itj, ihdt ilepenilintf h not
then intDT)} in thf* ^ume seu^e, or in the same
^n <4' ; torlhen Uierccould bare
^Kc;. ...^ .i sued.
^B^f)w, my lord, whra a parliament shalt
^Hlwt Mgiint iirhat does it meet wall f It meets
^Hp trn«i« with the same e^use again, (as to tlie
^^rits) hnt it meets it quite altered a« to other
' eircumstorices ^i^- ai to tbe execution that
bath been granted by an inferior court, in the
imen ill of paiHument. And, as to the chnnjje of
property « for a inoh^s estate (and perhaps of
ffreat vilur ) may happen to be in another nian^Ji
bsndi at the ifame time hy the execution ; so
I tli«t when « ; ' T doth meet ay;win, it doth
.meetf it i^ ti ' Ke same cautie (as to the
aneritJi), but tinnni «-^io nothing else.
Ami tireretbre, by thii, it ix cleur, that a
par ha men I does only I'xpect, when it meets
»{fa»ti, to m(r€t with the cause in the same
■late (av to iliM run ttv nf tlie catup), «nd doih
not at i ; itself to find fault
witli th' Jilt have Wen done
Uy an inivrmr ronrt m the interval, which was
ofily to prevent luihire of jttstiee ; but it eoiu*
mtadK them for not havini^ tklaytMl justice,
muHhat men should not be kept too ](>n^<jut of
tJirir rights, (eveti thoiij^h there insiy have
been pro<li(fiou« wrontf done to the pailie*), if
lfti«jttd|finent has
M neons) for thatth«
iUIPirtor ctmrt w
L-e to tlif error, if
onv »- - '
''' ^ '/mnit oi'
H:p
') all UK
en-
• -iis^d
bo
in
f^-.,
... 1..'. . "i-i*'
•t
It, when :
^,
1 f>ri}'?r of '
liouxc «< i /or J R, w iuL' h
^Ct to be C4»ntinu4Ht, t>
^■k. For by virtm* of ibi» lit^t ovdrr^ tSte
^BHa thi pivH-frd iijwm fht» **i>M«*»*^ without l>e-
0U •
IV writ or new
r
Itri 1
: But Ihis ii
Di
1 tUlof latfl t
h
t40, in this
■a||^^^ntHi Ml illlN Ulll^ , LL I
' lid
^HlBpf'ndjn;; ; nod so \^
i'lat
Bij^^**-'"' f tb»; lun'
^.^r,
Offuy 1' il ; cmhli.
to tb«iii • ^n «"
^•ari^miH^d 1
mmm^^ ""'
mty pr»otteil ufioa um %»ii«ii tbvy
1678—1685. [S6«
shall meet, as they shall think fit, ijntwitfi*
stand in£f my having been bailed j tor I dt'stre
not to have the merits of my cause removrd
from bdoro the lords, if I mij^'ht, hot that
they mny do wiih me as tliey |*lei\se, -cct'a to
condemnotion, if they shall have t^xme^ which
1 hope in God ihty never shidt.
Tliertfore, I say, my lord, in this senss
only which I have exjdaincd, a cause may be
Bai<5 to be depending, thousfh a parliament it
not in bein^ ; but 1 will chalfenge the ablest
lawyer, with all tbe sopliistry he enn use, to-
gether w ith his law, to shew me how he can
pr>ti<tildy difilinguifh the rase of writs of error
inicn the case of impeachment, or wherein they
differ, as to Ihfir ilep«'tiding, in the intfTvnlsof
piivluiment ; and I likewise clujlUn"* li"* h%
make appear, how bad is any othet
a supplelory act, to relieve a man ti ,„^
kept too lon^ from his lil>erty, as the ^aniiog
of execution in the lutervnl, i^ to relieve n man'
frotn being too long- kept out of his money or
e«tate ; for ihat the merit of the cause, botli inT
the one case and the other, remains entire for
the parliament to recommit upon (if ihey aea
cause), as well as to ix'verse the jmlifint nt', am)
all the proceedings, upon the writ of error.
Where is theTi the difference, my lord ? If
there be any dilTerence, 1 thiok it lies only in-
this, that in one case there msy be an erroii^*
ousjudgmentf and a man maybe almost uq-
done and ruined, by beingf w loni^fully dispog<
sessed of his estate (be it never so ereal) ; bi '
in this case, the suppletory act uhich is doi
to admit to bail, can only be to ease a mi
from his loo long or perhr ps perpetunl impi
fionment, and can hurt no body, nnf take
man's liberty from him, to grant him his ; bl
yet thin muit be thought an harti case, ai
the other a rery easy one, and filtobcprtf(
tised every day.
My lord, if The Jaw hah takru ctire,.ai
made such provision, that a mfloshall rtoti
kept too lon^ out of 10/. in money, or out
401. ayenr in land, tbeti it would' he fitrang^<*^
that the law should not have rujide protision,
that a man shoTifd not be ke|>t too long out of
his liberty, and when there is no pttJSpeet of
Inn ti;t\ iinL** It.
. in a Writ of Error the judgment
ntroverted,"and the power of award-
M-cutiun 151 suspended, uptm that vi?ry sc-
I, k'caufie the judgment of ihe coutt is in
(jiitiiiioD, nod the justice of it is brought in
dispute, whether they have judged rijjht or
wrong*
Now, my lord, if the dissolution of • pai
liarnentcan ret^tore the jti'1 '' i
tcival of pnrliami'Ut, »o u
lion upon a man's t state, v, ,.,
shall Im? chiinge*! tiod aUcri*^
v»t.nj;r.,^ rlieirju<ili«''*' ^^ '"" ^'"
liev may •' '^
H iiiUc ease from
3li
867]
four walls, wliere the justice of no court ii
qaestioned nor arraigned, nor no wrong can
have been done to any body ; but on the con-
trary, does right to the kinj^, who by his
consent sliews his will to have a man bailed ;
and great right to the subject, who ought to be
delivered from the danger of an indeHuite im-
prisonment VI hich is so contrary to law : Then
indeed there must be someintallibility 8uuposc<t
in that chuir, which shall maintain such doc-
trine, and must be submitted to, with the same
implicit faith which they do who can be-
lieve infallibility.
But for my part (who can believe infallibility
ID no kind upon earth), 1 confess I must have
my reason better satisfied, before I can any
more believe this exposition of the law, than I
can believe those infallible mens exposition of
the Gospel.
Mv lord, ] hope I have made plain to your
lordship, what it is that is meant, or can be
understood, by a cause depending in parliament
when there is none, and how and in what sen!»e
only it can be understood to be so dcprnding ;
and it is as plain, that the bailing: of mc is no
intermeddling with the merits of the cause in
parliament, hut on the cnutrarv, an evident
affirmation of the jurisdiction of that supreme
court; and if 1 cannot be admitted to bnil
in some other court than the House of Lonls,
it is contrary to what my Warrant of Comuiit-
ment implies, by which I am committed ouly
till I am discharged by due course of law,
Ibr which I am properly in this place.
My lord, it cannot Ije meant that bail can he
any more than a suppletory act * (propter rei
* necessitatem),' and for the ease of the sub-
ject ; and it is impossible for that old rule of
* Salus Populi Suprema licx esto,' to be more
aptly applied iu any case iu the world than ui
this, thai concenis every man in En^^land in
his liberty : For should it be otherwise, pray
see what the consecjuence of this doctrine
would be ; that because a superior court which
18 not now in being (nor hath it in its own
power to be so) hath committed a man, there-
fore he cannot be admitted to bail ; what should
become of men, if after the dissolution of a
parlian)eiit there can be no possibility of hav-
ing justice done them ?
hay farther, if it should be granted that this
court cannot intermeddle, because the superior
court has committed, by that doctrine it would
Dot matter whether the coniniitment were lor
treason, or for the smallest quarrel or misde-
Dficanor, for which a man might happen to be
in prison at the time of a disbolution of u par-
liament ; nor would it he any matter, wheiher
the order of the House of Liirds were revoked
or not.
For it is an order of a superior court, which
will still l)e a superior court thouirli the order
were burnt ; and yet tliat must l>e enough to
keep one in prison by this rule, for that there
would be still no other remedy, though the
order were repealed.
But, my lord, the Warrant of Commitment
1 JAMES U. Proceedings against Thomms EmfiqfBambg^ [BB
shews the Lords directioDB t» be coBtraiy tsikii
opinion, for I caa sheir acreral ioiUDoei df
warrants which ruD, some Ip be kept ' tiQ6^
< ther order of tliat Hotise,' otbers to be kffi
< till they bhall be discbarged by the Hook,'
and others to be kept * till the pleasure of dii
* House be farther signified,* and otbers ' dsriif
< the pleasure of that House:' batmylrunil
is, « till I am discliarged^by due course of h«.'
Now I doubt not, but if the liCHrda bad tbouril
those won Is had not given a latitude for im
elsewhere, they would have worded the ws^
rant otherwise, and instead of sayio^ * bj dii
* course of law,' would have aaidy ■ t|U 1 voi
* discharged by that House,' if tlie Lofdi W
thought there had been no other reoiedjfky
law, but by that House. But, my lord, it
Lords wilf not act any thing* above the law, ik*
will keep every thinfET wiiliin the oompiBil
the law ; and i ara sure that thare cannot ka
bettor ex<im pie to follow, than the exampbtf
those wise and great men of that great CM^
and I desire it may be followed, and iioto»
tradicted.
For by this doctrine, truly, my lord, Kkolf
itself would not ouly be utterly lost; boti
make the riddle the greater, and the laiiV
more ridiculous, it would be lost, and yrt*
body invade it: For the king he mnwili>
my* bail (if he hath any power,) so be dotfMl
intend to deprive me of my liberty : TheM
would tor their own sakes and juatioe mIk ^H
were in their power tu meet, and have Mel»
sit so long as to take the case (tf a sinric «■■
into consideration) do me justice, either aii^
char;:ing or trying me: So that ia mvcM^
here is a subject of England iraprisoned ij i^
iKMJy, and yet no power u|ion earth can it&m
me. Shew menu example of this maDji^
tion under the sun, but this, that there wuai
pouer in the government to relieve a piisoMr
at all times (if it would,) and I will besa^ified:
Nay, my lord, the very Spanish InqaistiBQii
moVe reasonable than tliis, for though the cm
may be unjust that they commit a maaftr,
anil their usage of him may be very sevm
while he is there, yet the Inquisitors (if lli^
please) c^m deliver him ; there is no piisoaerB
the world but can be delivered by some pos«
or other, but me ; and, my lord, this is anb
that must be for every man in Kngland as vd.
as rac, and 1 am not so iuconsideTable but Iktf
my fate may be made a precedent of note.
The opinions, my lord, that were given If
the judgcns in the case of ship-money, appM
far more tolerable, in my opinion, thanuiii
for 1 know iliore is no man hut had rather hait
a seRtcuce passed against his estate (which kt
may recover again) than have it passed agaitfl
his liberty, which he may never have, as4
which is more valuable than auy estate.
Besides, where is the justice of the naliaBf
And what a shame would it be tu our laws toA
to our government, that it could be said of thM
country, that a man might be punished bj IM*
prisonment in England (wherv tl»e goMR*
mcut is not arbitrary) for aeTOii yean « mmiK
l
iSeO] Jq^ High Trfniim.
•lid at Iftit li« fcnjn4 i;«n1ty of net offence f And
i»iiat salisfiiclinxi could he in tiattire gi\i^n to
th»t man P I i»y, il' lliai mnii ruutil havi* a
crow ti tfivGi) him, it ciiiiM nut " ' is-
IhciioD fijr tliM lo>^ of his L'
v/ hie h may be ih c co n:*ipq m- n < ;
inilf my )r»nJ) {\urv nrv |Mrr .*
I where men ha*e mirt'etr'^ ^i' ir
gDientii nK^aidJit the I "f
lot^ectt hul 1 nf-ver f hI
e defence either of the our i»p ii*r uiber.
have ftheivu^ I tliink^ sutfirii^ntly whiit
'cmw be meant tniher in tny case or nny older,
k by m cause drpc'ndiii'^ m parhumetit^ i^'hen
tbere in uo |wrhariif nt ; ur aUn how much infe-
rior cnurtA do meddle uith ihint(> of much an
feigber nature, thnn hail will he ; insomuch
» tliac tt-uly 1 shuuhi think it init^bt he sufficient
I to fay no more itmn I Ivdve tnid : hut J do not
Scnovi^ whftt may he sutHcirnt iu my caste ; and
therefore, my lord, you nnut pnrdoti rae, if I
I fJu put you in niimi of n c»kc viheitin yon have
ilfotte to the menu of the cause itfdf, when de-
I fiend in ^ in pnrUatuent.
Iti^ Fitz-Hari-is his case; and I know rery
irell ivhatans wen will he \f\fvu me; a;* that
tJiat u-a» a caae rejected hy the lords^ and that
il WHS not the lame treason for which he waa
Ipipcacbedf and other things that I coutd men*
I lion ; but I know your lc»rd<ihii» will Kpeak by
' ibc record of the cotirl (of whicii I have here a
1 *»py») ^"d the record is that which must saiisly
llhe world an hundred yearK hence: by which
lit will appear to them, that I w ' '
I Mnd tried, and condemned, d>^
peachmirot ; i'ov he made itiui iu^ y>^ u. iiui . ii .
Atturnev General denuirriutj to U« the cnurl
tnuatnke the mxller pK-aded, »* confessed and
Allowed ; and thts h^4o^ so, I should think
tberr should he no scruple made in the point of
Uail ; or if there Hbouldi thr^re must certtiinly
I hm very great hanlNhip iu one i>a!ie or the olher^
^Hi must be very dtthcultlo hennhwert-d.
HBut to conclude : besides all this, 1 am the
Pieiiig^*8 prisoner, nud 1 huvt^ the kin;r^t» purdon ;
atid if 1 CJinnot get to he lulled, there i» not only
A defect of jurtMliction iu this court, hut a tie*
feet of the rej^l autliority and jjower of the j
kin^ of j^oj^land to udmiui/ner jukiice to their
ifubKH:4a; wliich was niver hetird of, I think,
mnd I hofie I nhall never hie to ht>ur of it (cspe*
' cially tVoni ihc kiujr's supreme ordinary court
OfjUKlieL%) Andthut mv i<»r.l tlml ttiUKt im:iI<»} j
I ihiv cuic ihe miMv it ,
' we live in day* wh»-'- r i . ' -.■^- I
f liven are fo much broughl in que^iiiou : t'ur ,
what preiiigative hath he w hi4'h t» more un-
I 4l<mbte«i tlniii biA power of pardoaint; / ^fid j
I yet you sec iliut brout;^ht m quc«t)ori to the ut- i
Lniocit and iho«e that are the aUlcii men that '
I 0pt»k aKaioai that jM^wt^r, do laugh iO. ih^ htile
'wnatl tridem ubu object, that th* ' 'V |
pardon before imoenchmjent, and ai n-
Itmcc be g'tve^, bui uot betwist th'si ui(i» v^ I
fk§f IftUffh at thin, and t^<l1 you thiit lie cniiuut I
psrdOfk at aU ; and it la e^iwdy peiv'cived, that if
thwy oottUl reich Uiwi- ikaigu, they would bare i
A. D, 1678—1685- [870
it undi^TRtomT, That treason may be coromitted
<>■ jieople, and hy ihat doctnne ano*
i! Tourt of Justice may be setup,
ami HM i\itijf may be iixed hy hi* people, an
Weil OS he can try them, My lord, there are
a ^reat ntany consefiuences atlendm^ upoa
that doctnne, which 1 ain aure will ueter bi»
countii^tiknccd hy the Ktatr'a courts ^ htit 1 shall
not woroler thut 9<uch men as these he tryinjf
their pn^eets;, and ihink themMetves in theng'hi
to do m, if they find his majesty cannot do ao
much ai a lesser act of grace for his prijiooer,
w hich i^ but to s;:i%'e him ease from too long or
perhaps a j>erpetual imprisonment; fur if ho
nath not power »o much as to bail hiji own pri-
soner, I shall not wonder if others questloa
whether he hnth |*ower to pardon him.
My lord, I hiiva seen such keepers of aar
liberties, from whom 1 should expect sucti doc>
Irines r hut I thank God thot hy our livwa th«
kin^r IS ihe keeper of our liberties, and therefore
E ho|»e 1 shall net hear any snch doetrine b^
which he tan only he the "keeper of Us in pri*,
sons, hut shall Imve no more power than an-
oilier man, to set his prisoner at liberty, aU
though his will be only log^ivehis prisoner ease
(as the law jnteods) against indetiniie impn-^
aonmcDl,
Laudy^ Mv lord, if I ahould die in prtioa
with tht-t i>arJtTn by me, which 1 hare shewed
your lordship ; or suppose thai the House of
Commons (it' it were hiii with a deAig:n to de-^
atroy the pantofx) would gifesomeoilKT reason
' '!»© pardon (as being better satisfied con-
'; me, or luiy thiuffthe) why they would
(M Kf^.^x ute me uo more (of which there be divetm
precedents ;) what a wound would thereby be
^ivch tolhu kintj's prero»^ative I and pray how
isi It po<f«>ible uhnojtt to gire it a greater blow
than (his would be ?
Whm a precedent would it be to posterity ta
aay, that a man had tain three, lour or five
years or more in pr)*»on, notwithstanding a par*
doD, that %i\^xiitici\ nothiu;| all that time ? for
that the king- w uuld hare eased him if he could,
and liHth shewed his court that be would do so, .
but was not able so uiuchns to ba%e him bailed
— would not this put that prerog-ative in great
ha/>ard r' I conless 1 do wonder that Kome
othir* besides your lordship have not taken
moru care ot the prerogative of the kin^, for
their ow u sNnkci as well qs the king'* ; for it
would he very convenient it should ue useful,
if ever it should l»ecoim.' necessury : ami it la '
not impmlinhle, hut if the kin^shoohl hereatler
iind such a prerogative diminished, he woul4
not only reflect upon his losa, but upon thoee
who iiu{iht have Hilvised belter, or might hare*
bi^lLT dff.*n<led this prcrogatiTe of the king^ ;
and fur the Kubjects lilKMltes, there will never
lie eyea wanttiiK lu inf|«ii re after any inva>^ioti
which shall he made o1 that kuuL
Upon the whole, I have troubled your lord-'
ship u ^ 'lit It liuth been upon a subject
of the L lU'ern to Eii^li<<.hmen : I h«ve
audi li*ai, .^, .,... t to your tordship, as I amKUre
cannot be denied ; etui 1 am in my owa cou*
871] 1 JAMES 11. Proceedings against Th'nmMEaH of l>inby9Ss€. Jjn\
this shoit mcooant and deelantioo of mpM, l
by which, in the firat |ri«ce, 1 crfhr to my M
•cieiiccfiufiicieiiUv satisfieil, that I am detained
a priHoncr from bail, neither by the king, by
the lurds. nor by tl»c laws ; and thcretbre, my
lord, I du hunil)]y pray your lonlthip, you
would please to accept my bail ; and as 1 here
ofier voiir lordship my pa'nlon again, so I a^aiu
prav the bt^nciit of it, and 1 desire your lord-
ahip it may be read in court.
The Ltrd Chief Juilitc then spoke, and so
did all the rest oVthc jud{;es, (u|K>n the earVs
desiriu:; that they would severally deliver their
opinions.) And 'the Lonl Chieft' Justice, and
Mr. Justice l)oll>en, did deliver their opinions,
that I he earl could not l>e relieved by tliut court.
Mr. Justice Jones concluded his discourse with
•ayin|r,tluit he c«)uld not give his judgment that
the earl should l>c hailed ' at that time.' Mr.
Ju!«tice Uaymood did sav, he could not see but
that there would bo a t'a^dure ot justice it' so be
bis lordship should not have liberty upon bail ;
but that he had not time to view precedents,
and therelbrc it would be very unfit for him at
j)re!>e)it to be positi\ein what he did say.
.And then the Lord Chief Justice did tell the
earl, he must be contented to be remanded.
But at'trrvtards, tm the last day of Hilary
term, 16^3, the judj^^s delivered their opinions
RevrnilU, and uere unanimous, that the earl
ouuhi to be h tiled. And accordingly bail was
taken in 40,00()/. his lordship in a recognizance
of 'JO,(KKi/. and the dukes of Somerset and Al-
bemarle, antl.the earls of Oxford and Chester-
fiM in 5,0(H)/. a piece ; upon condition that
the e:irl of Dan by do appear in the House of
l^mls the next session of parliament, and not
lii|Mrt without leave of that court.
y\\\< Case is reported in 2 Shower 835, and
fyyiUMr ,'«(!. lt)2. Of those reports, the former
^ i-o moio lull as to ihe nrgumeuts of counsel,
IN* l^ticr the more explicit as to the points
ivi.»! b^ ihiM'ourt.
p ivJMid's (or Pintchard's) case, u liich is
«v \ *;»*Mui, '>* i*«'ix>rt<-'d in different lM)oks. See
lit
\.
U.:», I Sidertin a4o, T. U;iym. 120.
Is n| veimrt which 1 have seen of it is
I....
l\Mir Popish lords said to be bailed
,. v %Ai\w il:iy with Dauby, arc meaned,
. lN»»i». Vruu'del, and IJeliasis and the
t l\'viuv I'urd I'ctre had died in the
.,, a%*"«v the accession of king James.
. l\*io .Umod the I'opish Plot with his
»,i M'l. t* ApjH'iire fnuu tlio following Let-
i.i.t.i * *»;i»d to lm\e been written by
!. ,, .1.. Auh l»€-d, 10 king Charles the
\k.K\ ii plo«M' \0Mr mnjrsty,
: .. / K\ M t iho ho|H'« that your majesty
\ . ,» *u* I'w^rtUiptiuM of a dying hut
.. . ..^^^ ui (;wuv you th« trouble of
my heaily prmyers for your HMMtj'skvtt
and happy reifpii witii all the bfasiogi tf Aii
life, and eternal happinen of' the neiL
** 1 haviDg* been now above fiwe jua ■
prisou, and, what ie more p'ievoi»toBe,hii
so long under a false and iigurious cskmm4
an horrid plot and deai^ agmimt yoar n^
ty 'a person and goTemment ; mm 1 •■ mv,
by the dispositiouB of God's providcneB,alU
into another world, before I coald hj a p^
trial make mv ionooencx appear. I CMmd
it necessary lor me, aa an incumbcat daty I
owe to truth, and my own innocencp, la m»
this ensuing protestation to your majatjwi
the whole world. That wbersM oar Itei
Oates hath malictonsly and falady 6W«i,i«
he saw me receive a'commisaon diieekdl
me from Johannes Piaulus de Oliva, omtts^
ing me lieutenant geiieral of an army, vkil
he pretended was tu conne into EagU; I
declare in the presence of the ali-seeisgfti
before whose just tribunal 1 am shofdy t»f
pear, that I never saw any siio|i coiBiniwi
directed to me, or any other penoa «hih»
ever ; and do firmly beiiove, tnora mmm «■
any such.
*" Hut of the folly as well as the WniH
the information, the sober part of — *"^
are, as I conceive, sufficiently ere tUi M*
vinced.
*< And as to those aspersiona whidi in
norant aud malicious iiave thrown
Roman Catholic church fof which _ .
by the grace of Ood, do oie a membai) vl
nmrderiii|<: of kings, and taking up armsiCVit
our sovereii^ns, were an authoriseil priaopiid
that religion, 1 do knowingHy affirm, then ii
nothing: ^vith more horror detested by the Gi-
tholic church, as hein^ expressly coulmr *
the command of our Saviour, and CbrilHi
doctrine ; and as such I renounce and deieiti
as 1 tlo all plots and csnspiracias agaiatt jw
sacred person.
*' Having tlius briefly, and with all tiaflaif
of a dying man, dischar^^ed my cuoscieBOt; 1
shall end \> here 1 began, and with my bt
idiirf
me appear to he one: Who
dying, as in duty bound, &c.
am living uk
-1 Ralph, m
The cave of Seymoqr, lord Sudley, ms
tiontHi by Mr. Luders, in the passage dlsd ■ •
note, p. 625 of this volume, is reported, vol. 1,
p. 4ii3, of this Collection. The piiirudingi
against his brother, the duke of Somerset, iM
reported, pp. 509. 515, of the same voluMt.
The Indioiment aj^aiust the latter, aet tortb
pp. 518, et seq. of that volume, oocun almii
Cok« Entries, 48^.
9fS]
I JAMES II.
f jogaintt Richard RumbaU^ ^c* [874
340. Proceedings against Richard Rumbold, for High Treason;*
1 James II, a* d. I685. [Now first printed from the Records
|h of Privy Council and Court of Justiciary at Edinburgh.]
JIf ud nalLiruillifinsi! rigf^siiiio die Juuit^ 1665,
C[j)irKteUur Thesaurer jpnnci|»«U. Isrrolf
IJarialitll, Kintore, Tar(*el» Kiiinaird,
Ailvocitle, Justice Clerk, Preniilent of
tJe^MOu, Sir Georg^e Iklooro,
''PUE Lofd«tif tiisfU9Je>r ' ''lie
licri'b> require aod coitj j
,,« t:.i...,...j..^\. .. lOU tti liuijjwnii, tamjjtuj-
itur, c:oiiu*st to tlip iVAter-
I^i4^, > ^ ' i'-^^ .<.... .11 M carl, artil cause tlmiiattg-
■pu (0 put a ropf &i>i>ut IiIk nei U, and ^o be-
^tud liiuK ntuJ till' !oik»' Ili Ills iiritut, aud Uie
' l; die lioirae:
n aded in lUe
\ iLud iirdtMt]ti3( captain (iroeine, with hii
tfUfil ctiuipani% collmii's di£pb>ed aiid druriiB
tpg, tu reucave Lite rmi Uurii(»old «i ihe
'Vaticrgalc, attd guard bim to tli» canii!
liJibiit'gb^ wbere be ia to b« nioeAtoii pri-
\\\it
Apud Edinhori^m, S3d June 1685, &i!.
be lonlti of bis cnajeiitic'Bt prif y council I ^ioe
by ^tve order uiu\ warrant to bis in»je«tie'^
il'itr prorcs^tng* Rumbold, the mal*
re the lordn juatiuti jfHiemf, jutjlier
(ik*4* tbe liitHKiuctiun to tbe Tna1» for itic
^HiiiiiM; Fl'>i ^'*l ^, fi. 85r, and tbe Trials
liemKclve-i in / Vohime.
Not Ittn- earl [of Ariryle], tbat
Dt and ^iiuii man, Cfdund Kuir)l»old, yvna
I b*te no diKtiiitt uccount ot ib»* iimn-
r but H»u told that b^iu^ AtUi.'kiHl
' militia, be mu'fc bin «ay *^ii*ily
and \M?m^ till' gr<rat coura|>t'»
ami Hirenjftb, wb**ii two of three* attacked'
i ooce» he *va^ " ilyatd«* for i hem «
niiintumcd a ru a, and Has like
[ filf, till oje fii 111? Ml, ui^ertban tbe rest,
■ rue up iind rttt bis bomr^B lt*^« UiiKernbly,
Uh«:ibb^t hiHi so thul he wa* r '■--;- of
Vtfi bitn, and I ben h«^ was mxh il
inumbtTB, and terribly wutinikd. ^^w .
, Ab<^>^t tbi^f^aoie Iniie iicri>»|i«^d Aylojfe, ano-
K«f tbr adlicff ntJi of Moiiruoiub and iir^^I<»,
erniiig^ whom Unrucl wnica ibu^ :
^Aifvlfb had a iiitnd to prevent t!»e course
«»tte«&, atid huvyi^ {{"fU u penknife into bis
\ ^ve bitii^tdf ne^er^il »Uim. And tbink-
r was Ci*rtaiuly i deail m^ii, he crM out*
t *aiil, uow tte drfinl bi^ cncniif*. \%t hi'
I n*»t pterct^l bi»* irut« : ^to bit it^ound^ Wfie
mofftiK \nil« It bi'iokf be(ti»vi*d that be
u|d injtk4*^reat diicotcrie*, be wa* brougbt
[.utidiiti.*'
IrbcQ Ado0b mM brought up to Loadoo,
dcrk.and retuaoent com mi:!;«i oners of justiciary,
ior high treason and rebeilioii a^ainesi Ibe kin|f
aod guv eminent,
Apud Edinbtirgum, 35tb Jnn^, 1635, &c.
The Lords of bi^^ Majesties Privy Couociil
doc iK^reby itHroniiuend to the L^irdtf JuBtico
Gejieral, Ju«<ticc' Cleik, and rema^ut Cooio
luissiooera of his Majesties justiciaiMf, to meA
to*n^orrov% by leu o'clock in the iuruoon, an4
to call ihedittay tjf High Trfa>uu and ri^bal-
lido u^^ainst Uurnbold, ouiumonly called collo^
nel) Uuinbold, or tbe inaluter, and after be ia
foujjil guilty of tbe !>iiids crytuts, iKio rccotiw
Mieud to the «aida lord» to cause bim the said
Roinb<dd to be imtuediatety taken from tbeir
barr to tbe |aig:b toun coiinsell bou^e to bo exa>
mined by the mag;^i6tratf^s and tiear prayer JQ
tiie ordinary wuy^and that order may bu given
by liiem to the suids no ag^i strata tbdi a sc-aiTold
and a bit'lt gibbet be erected above the cross
tovvanls the ^'e^t^and that alWr be ii vKutiiined
and prayer bean I, ihcy cause liim be letl down
by tbe haog^man, bating bis bait oo to the
seaflold, aiul there to be bui»e4l up the i(4bbeC'
with a rop about bis neck, aad immediately to
- LI .■- ^ L ■
the king* examined bim, but could draw ooibing
from bmif but one severe repartee, tie beio^
sullen, and retttsiii^ to ilttcoier auy thirtj^, tbtt
kJug^ said to bim ; Mr> Ailotfe, you know it if
in my power to [>ardon you, therebjrc say that
vvhitrh may deiterve it* It wvlh Maid thai he an-
svyeied, that though It wu>* in his powtf, yet
it waa not in bia ualure to pardon, H# wa«
nephew to the old earl of Claiendon by mar-
riA^e ; for Ailolfe^s aunt was bis 6rikt wife, but
&he bad no children. It Wiis tbou^^bt, that tbo
nearnesi of his rvlulinn to Uie kinif'a childrea
ni\^Ui have moved huu to pardon bim, which
wuuKi buie l»een the inont c Ifectuat confutation
of his bold repartet* : but he iiutfervd with ibo
rc^/' [upon u «M?uteiiee of ouita>%ry passed iti
the reijjtt of Char leu.]
Of niirnH's story coorernmif tbe ae? ere re-
purto^, Mr. Fosc »iya, "This is one of those
auecdoies which ih Lieheved rather on accoui^t
of tilt! air of naluie th;it lieloiigs to tiiem ibs^Q
on tttiy very i^otni traditional auttiunty, j|n4
wbieh ouy^ht tberofore when any mate* ml m*
h^rence m ith rt^peet cither to fact or characi^f
m lu \Mi drawn from themi to be received wiil|
^reat caution.^'
Tbe treatment of Jlittnhuld waa a good derit
like tbut of 1 ' ' I *' ' " 8ee hit
c n«e, ^ul. I . iitao, the
Council took \ty<Hi VIM (11^ |Mi-vi[)ukky to his tf Ul|
to d^tcrmiBe tbe m&tmer ot'hu eiecutioo.
875]
1 JAMES n.
Proceedings against Richard RaimlbM^ [M I
be lett down and the rop being^ about his neck,
h is heart to be cntt nut by the hangman and
shown to the people upon the point of abayinet
or danger, round about on the scairold, who is
Co expresse these words (Here is the heart of a
bloodie traitor and murderer); and which there-
aflter the haiigfman is with disdain to cast in a
fire prepared of purpose on t lie scaffold ; and
thereafter his head to be cutt off and shown to
the people by the hanipnan in manner forsaid
and expressmg the former words; and then
his body to be quartered, and <}ne part thereof
to be affixed at the Port or Tolbuith of Glas-
gow, another at Jedburgh, a third at Dumfries,
and a fourth at the Newtoun of Galloway ; his
head being to be affixetl at the West Port of
Eflinburgh on a high pole, and to ordain the
magistrates of Edinburgh to see this order putt
in execution accordingly.
Curia Jdsticiarii 8. D. N. Regis, tenta in
pretorio Burgi de Edinburgh, TiG;esimo
quinto, die mensisj Junii Aniio millesimo,
sexcentesimo octuagesimo quinto, per Ho-
nourabiles Viros, Doniiuos, Jacobum
Foulis, de Cblintoun, JusticiaHi Clericum,
et Alexandriim Seton, de Pitmedden
unus, * ex Commissionariis Justiciarii,
dicti S. D. N. Regis.
The Lords continue the dyet against Ritch-
«rd Rumbold, Euglishmao, for treason and re-
bellion, till to-morrow at nyne o'clock, and
ordaines witneysses and assysers to attend
ilk nersone under the paine of two hundreth
merks.
Curia Justictari.e, S. D. N. Regis tenta in
pretorio Burgi de Edinburgh vii^esimo
sexto die mensis Junii anno millesimo
sexcentesimo octun^-esimo quinto, per no-
bilcm et potentem Comitem Georgium
Comitem dt* Linlithgow, Justiciariuni Ge-
neralem, et Honorabilos viros Dominos
Jacobum Foulis, de CoUingtoun, Justi-
ciariie Clericum, Johannem Lockhart de
Castlehill, Davidem Balfour de Forret,
Rogerum Hog de Harcarss, et Alexan-
drum Seton fie Pitmedden, Commissiona-
rios Justiciarite dicti S. D. N. Regis.
" Curia legitime afiirmata.
Intrariy
or any bodilie harm* to him, or the ^cfv^vic
deposing or aiispendiii^ him from tbe i^
honour or kinglie nome of the imperial otn
of this realme, or tbe overtarnin^of^tbe gtiQ.
ment of the monarchte, or the rymi^ m mii
or rebellion agwinst his majesty or hu aolki-
tie u|>on any cause or pretest whatsomerer,!
the concealmg and the not refeeliDgofiiTtf
thes crymes, ' are crymee of higb-ticM^
and punishable with forfkulture of lyft, h^
and goods. NerertheSeeeo it ia of vcrilj,ihi
the said Richard Rumbold being the mm
execrable of all traitors, did cooapyre, nia-
take and endeavour to kill and muftbcrv
gracious soveraigrne and his late OMJciiJ tf
ever glorious memor]^, st the said Bimnhii
own bouse at R3re, in Hngland, sod vilhli
own hand, in their returns from New ■odi
to London in the moneth cS VM
years. But God of bis great mercy and md^
ness haying jireserved oar preMst asd hfe
gracious soveraigne from bis horrid and )kHk
hands, by their coming sooner from Xe«s»
cat than was designed by reason of so acdA»
tall fire happening tber, yet be tbe mkl RieM
continued m his Tiorrid piotts and asitriwMa
and for promoting thereof, and for bis on »
curitie he fled over to Holland, and to the I*
earle of Argyle, and with him and oibcr»
crable traitors there proceed further and taiv
in the saids plotts, and did conspire die tah
turning of the government of these li in|dMrt
and accordinglie be and the said lateadii^
Argile, and severall otiier rebells sndlisan
did invade this kingdom, with sbuiiMS
armes, and amunition, and landevi wittAmb
the West Highlands of Scotland upon tbe
day of jMay last, and there iasueit forth Av
treasonable proclamationa and declaratiBiii^
convocat and gather together his DUcMii^
subjects within the shyres of ArgileTaikl
highlands and islands thereabout, in opcnrcW*
lion against his mapestie and bis autborioei ^
take in and maintaine forts, strengths, andgv-
risous, against him and his forces, didrokbsrf
plunder the goods and houses of bis nuQcMlk
good subjects and souldiers, and tbe said hsi
earle of Argile and the said Richard, who all
employed be him as a catitainof horse (though kt
was to have assassinat tne king) and bis acmn
plices to the number of did e»
tinue in opru rebellion against bis majeitjiii
his authoritie, committing all acna of '
I and high treason, untill at length they
, - w ^ weieaS"
Richard Rumbold, designed collonel Rum- : pat and delate, and the said Kicbard takeBb
bold, maltster at Rye, in the countie of Hartford ! his flight at . . Off tbe wbilk bcnii
in England, indyted and accused, tliut M'her erymes of treason, rebellion and others abon
notwithstanding be the common law, \i\\\v9 and ! specified, he is actor art and part^ which bdaf
acts of parliament of this and all other well go- j found he an assise he ought to be puoiibil
verntd nations, particularly he the second act, ; with ibrfaulture of lyi)', lands and goods to thi
second session, and Ifvl't and first session first terror of others to commit the Ivke beitAer.
parliament king (Charles the second : The plot- Pcrtdter. — SSir (leorge M'Kenzie, of Roi^
tiug, conlryving, or intending the death or haugh, his majestie's Advocat, declares bei^
destruction* of the king's most sacred majestic, ,' stricis hislybel to the second part tbcTOof vil.
that the pauuall did associat • himself with Itat
« So in the original. See a note in p
6f the tenth Volune of this Collection.
881,
• SeeaNotemV^d. 10»p. aOT.
J^ High Trtai$m,
trftltoTf Archibald Campbeil,«i>mly rue
Ar^Ue, ami invsid tbU kiii^dciiiie m
Tiiaiiner l^rbtilleU.
mi, Jii*;ili (• ( iriitr.sl- Jtislirf f'Irrk Utid
lAiicbanI Uuiiibold, %tiiii his maj^iiUe't
M decUmtion, whereby he mijicu» ibe
bey find ihe lybell r^lcviot us it is re*
to tnf'err ilte f»aiucs of trcjijtimi^ and re*
m Mint 10 Ibe kiiuwied{j<e of tbe Atsy «t;-
I Assisi.
k Psiertonp brewer.
iM Moolgomery, mercbant
Ptttersoo, shoemaker.
fe Hunter, baxter*
;k HtmsiiimD, cook,
timu Snow, Engbstimarj.
'horaas Boync, EngMshman,
^c Cliirk^ Enjjlish factor.
Alexander Blair, Etij^Hishman.
Itower, ribbon weaver, Englifbioail.
las Laudle, Eu^lisihtiian.
Ortoun, EnglUbmaii.
im Cockbariif merchant,
un FuHertoun, merchant.
iSiueitouDy merchaat.
Issyse lawfullle sworne, no objectioo of
^tntbecootrair.
Kan nail Richard Rambold, confesses,
ires in presenee of the justices and
that be did as^sodat hitiiaeif to Archi*
toi|diell« lale earle of Argile, and ^vith
i otbem ill? adit this kingdome in the
\ of fVlay last in armes^ and that be was
puider of a partie of the rebdi* tjader
^ho aiaauhed a (lartte of \m innjesties
pnder the marqiiea of Atboil, at Ardkin-
nil that tber wa» on killed on each ayde,
Irtcrrogat if he knew John BnUbor^ of
l« ane of the archbi<^hop of St. Andrew's
rers, declwires be did not know liim till
te a shipboard^ and confesaeft that the
m Ballour was designed to be a cornet
\^ ami wu |}r«wflit with the late Argile
I otbem in the highlands ; cool cases he
I James Stewart, and hes met several
Ith him in Holland ; and that James
Idid know of his cciming-to invade Scat*
ad h\r John Cochran told bim that
IteHHrt Mid lo him before they parted
blland, tbst the lute earle of Ai^ik
[Kiile all by bislaDdin$;in the higyands,
permit there,* and ihut the list and
fny s*»M fur thetn to land in the main
the west of Kcotlatid, and lo offer ai^nu^
^ tti woidd take them ; and that he
N$ late earle of Argjir or some other
It James Stewart was for asserting the
I Mo nmo utiles title to the crown, and
mr Pafertck Hume's Narrative publish-
r. Hoscr, with U is Obserratioiia oii Mr.
iaifiinml Work.
A. R 16S5. [878
finder sayes that he heard James Stewart bad
Ifiven the finlf** m %1uninouIb comi^ell to 4«*
sutiie the i < > rown,
Sic .^ • Tp Rich. Rumboio.
Followes the Verdict of the Ai^\w\
The Assyse ftll ifi one rolcc findi* the pannal^
Richard H^-^^'-'" -' 'i" of the ircaKortablJj
iftvailing I I amies in manncrj
lybelled la , ^__: .: ...i own judtciall con»
Hie Subte^tUuTj E, Snow, Cbancdlor.
The Lurds J ustice Gcoer all,J ustice Clerk«aii4
Commi*sio* ■" '' '■" •-■— • , ■ * j^
the :»ikid \ i
of John Lt-.;.^:...,^..., ... , ,„.\^.v.. . r .j ,,i,^l4
adjudged Uia said liicliard Ruin bold to Im
carycd from the barr to the InijipU councill*
house of Edicburglif and from iheuce i£i a
hurdle or sledge, to he Jed be the hangman^, to,
the mercat crose of Edinburgh, and thcrt t4>
be hanged on a gibbet, and iramediaUie led
donn aUvc, and the rope Wing about his neck^
bis heart to be cut out by the hangiuan, aniL
showeu lo tlic people upon the poynt of ill
bygonet or dsger round about the 'scaffold-^
at the foot of the gibbet errected for tbaC
purpose, and the h any man is to express tlieso
words : '-* There is liie heart of a blood ie traitor
and murderer.** And which tberefter iha
hangman is to cast into a fire prepared on pur»
pose un the scaffold j and onJaius llie «aid Itich*^
ard Ruoibold** bead lo be cut off and sbowctil
lo the people in manner fonsaid, and express J
iog the for&aids words, and then his body lob^J
quartered, and one part thereof to be aili'xsd oicl
the Tolhmtb of Glasgow, another at Jedburgh J
a third at Dumfries, and the fourth at thai
Newioun, of Galloway ; and ordaloej. bis heafl
to be affixed on the west port of Edinburgh, onj
tt high pick or pole erected for that purpose rf
and ordains this sentence to be put to ejtcculioul
this present 20th of Junef betnixt two and i'yvml
o'clock in the afternoon preceis lie, and ordaioe*^
bis name, fame, memory, and honours to
extinct, bis l»lood to be'tainied, and his arm,
to lie riven furth aud delate out of the books l,.
armes, sua that \\ts posterity may nc?er
have place nor be able herefter to brink or
injoy any honour, officers, titles, or dignities
wiihin this realme, in tyme coming, and t©^
have foriault araitted and tint all and sundrisq
his lauds, beretoges, tacks, steddingB, roumcv
pf^aessioos, giKKis and geir, whatsomercr per-
taining to liim to our soveriiigne lord, to re-
maine perpetuallie with bis highness in pn>-
pertie. Wbidi was proouuoced tor doom.
The following Account of the Kxecutioit i
Rurobold is inserted ui the Weslero
tyrology :
* As lo this, see vol. 10, p. 108,
t Set » HmB in p. QU, of toI. to*
879}
1 JAMES S.
th€ LASrr SPEECH of Col RICHARD
RDMBOLD at the Market Crou at
Edinburgh, with teveral thingt that
passedi at hit Trial, June, S6, 1685. .
At the sime pluce died colonel Richard
Rumbold, about eleven o'clock he was brought
from the castle of Edinbnrfi^h to the justices
court in a gpreat chair, on mens shonlders ;
where at first he was asked sonne questions^
most of which he answered with silence ; at
last said, He humbly conceived it was not ne-
cessary for him to add to his own accusation,
ilnce be was not ignorant they had enough al-
ready to do his business; and therefore he
did not design to fret bis conscience at that
time with answering questions. Alter which,
Iris libel being read, the court proceeded in
usual manner ; first asking him, If he had
aay thing to say for himself before the jury
closed ? His an*sw4-r was, He owned it all,
■a?ingthat part, of having designed the king's
death ; and desired all present to believe the
wordiQ of a d yinsr >nBn ; he never directly or
indirectly intended such a villany ; that he ab-
horred the very thongtits of it ; and that he
blessed God K& had that reputation in the
world, that he knew none that had the im-
pudence to ask him the question ; and he de-
tCHted the thouglits of such an action ; and
he hoped all good peojile would believe him,
which was the only way he had to clear himself;
and he was sure that this truth should be one
dav made manifest to all men. He was again
asted, ir he had any exception against the
jury ? He answered, No ; but wished them to
do as God and their consciences directeil them.
Then they withdrew, and returned theirverdict
in half an hour, and brought him in Guilty.
The sentence followed ; For him lo be taken
from that place to the next room, and fnim
thence to be drawn on a hurdle, betwixt two
and four of the dork, to the crussof Kdinhiirgh,
the place (»f execution, an«I theie to be hanged,
drawn, and qnailereil. Uc received iiis sen-
tence with an undaunted courage and chear-
fulness. Ai'ter wards he was delivered into the
town magistratc*s hands ; they brought to him
two of their divines and ofiered him their as-
sistance u|)on the scaffold ; which he altoge-
ther refused, telling them, that if they had any
gnoil wisliesr for him, he desired the}' would
spend them in their own closets, and leave him
DOW to seek God in his own way. He had se-
veral of the same kind by others, which he
put off in like manner. He was most serious
and fervent in prayers the few hours he lived,
(as the centinels observed, wlio were present
all the while.) The hour being^ come, he was
brouifht t(» the place of executiony^bere he
saluted the people on all sides of the scaf-
fold, and after having refVeshed himself with
» cordial out of his pocket, he was snp|M>iled
by two men, while he s|ioke to the people in
tbese words:
" Gentlcnaeti and brethren, It is>fbr all men
that oott* iBlo tba» world oMa to die^ and
aflep death to jadgment; hmI niee dcirfiiii
debt that all of vm nnuat pafy, it it but a bMv
of small moment what way it be daoe ; mt
seeing the Lord ia pleased in thb naaav a
take me to himaelfy I eonfesi, niiutthiiig M
to flesh and blood, yet^ Ueoaed be bis ana^
who hath made me not only wilKng, bottbab
fol for his boaouring' me to lay dowa Ibeib
he gave, for bia nmnne ; in which, -were eior
hair in this bead and beard of nine a bft^i
should joyfallv aacrilice then lbril,islb
this : And Providence having^ brought m
hither, I think it most neceevary to clear mndr
of some aspersions laid on my name ; and M^
That I should have had ao horrid an iaieitia
of destrovirigtbe kinjg and bit Iwjliher.
[Here be re^^ted what he had Aidhfa
to the J ustices on this subject.]
" It was also laid to ray cliarge, Tim 1^
antimonarchical.
*^ It was ever my thoosrlita, That Idiltljp
vemment was the best of alt justly mem:
I mean, such ashy our ancient laws ; tlMi,
a kin<r, and a legal, frpe-ch08«*rt pariiArt.
The king, having as I conceive, powA-eoMlli
make bun great ; the people also as oittd f^
perty as to make them happy ; they bo^, •
It were, contracted to one another. Awi ^
will deny me, tha[t this w as not the jivt c»
stituted government <rf* our nation ? Us*i^
surd is it then fuf men of sense tb uiii^il
That though the one party of tltkeiM^
breaketh all condition^, the otlMv dhsd^h
obliged to perform their part ? No^ ibiaiv
is contrary to the law of €rod, At ba «f
nations, and tlie law of reason. Bii ■
pride hath been the bait the devil balb cakbd
most by ever since the creation, ao it ca-
tinues to this day with ua. Pride caaidie
first pai-ents to fall from the blcsRd cM
wherein they were creattnl ; they aiuf*
be higher and wiser than God allowed, «hiA
brought an everlasting curse on iliesi ai
their posterity. It was pride caused M>
drown the old world. AimI it was Nian'^
pride in building Babel that caused tliat bmy
curse of division of tongues to lie apread aaM
us, as it is at this day, one of the greatea^
fiictions the church of God groaoetb wt4t*
that there should be so many divisioils dMiif
their pilgrimuge here ; but this is their cw
fort that the day draweih noar« where, as ikaf
is but one shepherd, there shall be hat M
sheepfold. It was tlierefbre in the deftaeed
this party, in their just rights and libeM
agfainst Popery umi slavery .
[At which words they beat the drnais:] ft
which he said :
" They need not trouble themselvcei ftr bi
sliould say no more of his raind on that ^
ject, since they were so disingenuous, as IS ii"
terrupt a dying man, only to asanre the fBh
pie, he adhered to tlie true Protestant nli|iw^
detesting the erroneous opinions-of maoTtM
calle<l themselves so ; and I die' this mfm
the defence of tlie ancient lawa and libaWif
these nations : And thoughOod^oa i
Jtjff High Treamn.
Icnowit t« btmself« bndi not sern it At to ho-
ur iMi a§ to make u* thc! infitrumcnts for the
llver«ac« of hi» i>eo(»lr ; yet as J liavi* Jived
I I lite ill thf faith^ thfii Ite Mill Nfieedily
Tlflc fur the deliverance of hh church one! pwi-
Am\ \ dpsrre of nil you to prepare for
with spccil* J may $a^ , Tliis i<( a dc laded
nenition, vailfttl wUh ignorances thwt tlioiii^fi
r&ad kltiferv be riding in upon ihein, do
^-|Mfoeire it j t))mi:^h 1 >im »ure there was
I' mat) horn mjirketl of Go^l nliove imother ;
noitc come* into the woHd wilh n snddte
I htM Uuck, — •I"'- K.,, ».„i T,„j ppiirrfd to
ride him ; »i sjilisiied, Ihut
jod haih ^v: : 4. ..ui Millions for
en in the wortd, ns I have aJrcndy timd :
ttEfs hftrin|v ««: nnrch power its lo mnKe tliem
eat, and the people iis much [iropcrty us to
)tv thorn happy. And to <^«jeludc^ I shtttl
||y Aitd tnv ivitihes for the »alrdtioii of all
who wore cretitetl forth^it end.'*
Ulcr ending- thcNt vvords, he prayed nmst
vcnlly iienr tlirec quarters of nn hour, frrely
^'""* "" all laeii, even his greatesjt enrmi*^,
il «imcstly fur the di^ivertuice
from all her persecutors, partirularly
^yiog" for London, Ediuhurq-h^ nnd Uiddiri,
iv'hiHi the strekirn^ run that rule God^d
►jjIc in these three nutions.
leinp asked some hours l>cforc hiiexeeu*
i. If lie thoujfht not his sentence dreadful i*
aii9wen^'d^ Ifc wi*ihed he had a hiuh for
f II in Christendom.
Iff. Fox in his Appendijc^ Xo. IV, lias
a ted the- tUhowin^ pii-wai^*^ from Lord Fouti-
phairn 3IS. IMeinoik'K [those I upprehtind in
I Advo<^t£'ji Lihrary at Kdiuhurg'b :}
* Richard Rnmt > " * 'i rEng"-
jilwi taken at L \\y Ha-
Htvii -r, ri^jplcreh and his inziiiiri-Tin n* Tfe
(lyinjr into Ei>|jlutid» hiitu*- conducted by
^ ►Turnliul!, a man of Polwart, (tor l*o(ivart
liad ■enirwf himself by iiighl i^ooner thntilhe
t^\ had douc.) JTc'was bold, nn-^werahle to
liin name, and killed one, and wounded two, in
^le taking*! «»d if one had not been sotne wiser
than the re«t, by causing" shoot his horse im4er
'im, he mi^ht ha\e escaped tbern alt ; how-
"l^lie lilMlervBlued much our ScotK soldiers,
^miog both eoma^c ruid skill. \Vhal hud
tunatety fft^-afrt^d him in this enterpri/e
' waa, that he had been from hi» infancy btetl
UD in the rrpubiioan and aniimonarchic prinei-
|pfc«; and h«? owncti he had been Iiji:htiogr
"■" * '*^ ' ' of monarclty and jiri lacy,
«'n yeata of nj^r; (ti^r fie
^ "* ' r^artuy, arid at J>un-
A. D. 1085.
[881
reUof, and lo was designed the maltster -^ and
intended to have a e.trl ovirturne*! in (bat
narrow place. ^ te their a-
Hut CtfwJ disaj I lem, by >. ;,#
• I tire at Ntiviiiurket, which iorcwd the
turn a w «:ek sooner to Ixjudon than
he driiMtied : Fce all tliis in the ki«tr*s |iruited
, decjaruiion. Itut H«ml»oid absolute: ly denied
any knowledj«fe of th«t desiftned murder;
I tliough on the hreakin^^ out ol that plot he fled
, with others to IJoUand, and there made ac-
I quatntanae %vith Arj^yle/'
I »* Uii the 28th (June, 16S5,) the said Richnrd
Rumliold, nuiltsler, was bmuj^ht to his iriaL
His indictment liore, thai he had designed to
I kill the late king, iit the liyv or Hogpdovfii, it
^ bis return li-om Newmarket to Loudon » in Aprii
16a:L But in regard he po^iitively deiued tlw
truth of thtw, ((hough sundry had nworn t|
agfaiusi him in Ei(y:land,) the king'** advocati
passed Irom that part, lest it should liave dia
paraged or impaired the credit of the sak,
Eng-hsh plot; thereJore he iusisted fiiiig'lv OQ
Ihe point, that he iia' d himself with
the laie Ar^yk, a t^r or, and invade
Scotland, ^i\. All tins nv cuuu *sed and st^^^ned |
and heiug interruj^aied if he was one ut' ltt«
masked ejteeutiouers on kinij^ Charles lh#J
FirAit's sea Hold, he declared \\v was not^ but
that he was one of 01iv«^r Croruweirs repmeot]
then» and was on horsebtick at Whitelml) that'
day, as one of the guard about the scalToldjJ
and that he was at Dunbar, Worcester, and?
Dundee, a lieutenant in Croujweirs army. Hoi
Hi\\d that Jaiuas Ste« art, advocate, Udd thcto I
Ar^^vle would ruin all their affair, by 1inf^erin^-j
iu the Uk's and Hig-h lands, and not presnitly
marching into the iuiaud country ; wherein hoi
had provnl a true prophet, but might iieeit i
without a spirit oj divination. And beingf
aaked if he owned the present kitt*r's authority,
he eraied leave t« be excused, seem,','^h«' needed <
neither ottend them, nor grate lik«* wm\ coo-
science, for they had enough whereon to taktf
h»s htie heaide. He wa^i certainly a man cf i
much natural coiprage. Win root-jsi uf^iained
opiuioa was, lor a republic aj,^uiiat mouaichy ,lo
pull which i\o\M\, he ihou^^ht a duty, and no mo.
And on the seatibhl he begitn lo pray for that
party which he had been owning', and lo keep
I he three inetropolitan cities of th<^ three kinj,'-
dums ritfhl ; aod if every hair of his head were
a man, he nould venture tUein all in lliul cauae.
liut the drum* were then cominanded to heat.
I ami .... Sh%,k h
IL^ cowry ot the Im
i, it wa^ pf'iVi-tl \-\t\r.
Ithi* Rufr
lkin|r in
\ Newmai
Hye 11
unl, whtrc ii«; UaJ aia^iicd
m\%{ hy
[ilot m
i Ihrn^,
owru ho Use,
count V of
a itialuicr'i
other wj»e he carried di?ttreelly enou^Hi, and
heard the iuim$(teri«, hut touk none uf iht^m V*
theacallold with him^'*
Wodrow, vol. 2, pp. bolt /i.S2, relates thia
case with his usuid correctues*, and mentions
iouicrffi r > ulatM of Rumhuld'scompuBure
and til
ifotii the \,uuMeti,
1 of the lUHulta he received
I will hrrc iiwcrt Mr. Fox*i aoeoutit of
ttumbold'a Caaai, wbicb ia \xi^\%\f ioieratUDgi
Jl L
883]
1 James II. Proceeding* against Ridtard RumbMt
[881
Dot merely from Uio exquUile 8|Nrit, clearaen,
Hill I Kimpl icily ul' iIh* narratiun, aod i'roiA tl»e
jiKtness aod ' Ki{picity of tlic refleciions, bat
from the very shret^d and criticul iiiveMti}(atian
wliicli it contains, reliitins: to the Rye House
Plut ; aa<l the extent of Ituiubold's partiopa*
tion in it :
" Uumboid, C4>vered with wounds, and de-
fending himself ^ith uiicoui mini exertions of
strriti^h :in<l cotirafi^f', wus al lust taken. How-
ever dusirHhIe it mii^ht have ix*en thougflit, to
execute in Kn^land a man so deeply impli-
cated in thr.Hye-house Plot, the state of llum-
bold's health made such a project impractica-
ble, liad it been attempUui, he would pn>ba-
b)y, by a natural death, have disappointed the
viewH (»f a i^overnuieiit who were eager to see
brought to the biotk, a man whom they
t»iou*^ht, or preteniletl to think, ^iUy of hav-
iwu; pi'oji'cted the :i!>sa!«si nation oft' the late and
{iri'M-ni king. \\Vdkene<l as he was in body,
lis till. id ^\ as tirm, his CQiistancy unshaken;
and no: withstanding some endeavours that
wt <e iii:iile by ilrunis, aud other instruinentsi,
to.droun his \oici> wlnn ho •. a^ a«tdressins( the
pt'()>i!4; tV nil the sculioid, enuu^h h :s b;.'(*(i pre-
8('r\t<l 111' what hi' Vww utieri^d, to sjtisly us,
th.it l:is pfi Atonal eunrai^e, the praise ot which
li. s not be(*n ileuicd iiiiu, was not of ihr vulj|rar
or i-onstituiionul kind, hut was accompanied
with a pt-o;>>iriitiirible viijfoiir of mind. Upon
hearinnf his s«'nifnce, Hhether in imitatinu of
AJoiiirtHr, or troui tiiat con*{:eniality of charac-
ter, whieh ciinsi's mm iusiniiUrciruinistances
to conceive siniilur seiifiinentti, he expressed
the same wish which that ua^Iaiit luvbleman
had d'Mw; he wiaihed he hi\d a liiuh Uvc every
lo.vn in rikrisinndom. With respt^ct totlie in-
t('::dMl sit^Hssiiiation in][nit;*d to him, \w. pi'o-
t«'ilrd his iiinotviico, »ini dislrcil to Ik* helifvy<i
np(,n liic fiiiih of a dvin^ man ; addin;;, iu
trrinsas uatntal as tlioy are fniTibly divscrip-
tivf ol' a conscious di«^nity of chaj-actcr, tiiat
he was too wi>ll known, for atiy to liavi* had
the impudence to inakcMicli-a pro))OMtioo to
him. lie couel-ided with plain, and nppa-
reniiy siiicii'c, ilei-Uiviuions id' iiis undiuiiiiLshetl
alt aril men I tu the principles (d' libeity^ civil
and ri-liuions ; denied that he was an enemy
tu nn):iarchy, alKruiintr, oti llie contrary, tliat
he considered it. when properly rnuiiv(i,*as the
liutst eli;:il)Ie tonn of ^ovurnnieni ; buttiiat he
nevi r could iK'lieve that any man was horn
iiuukcd by (lod alH»\e another, ' for none
* ccmcs inlo tlie world wiih a saddle on his
* buck, neither any booted and t^puircd to ride
* him.'
** Kxeept by Ralph, who, with a narmth
t!:at floes honour l«j iiis feelini;-??, expatiutes at
somu lcn<rth upon the sutiject, the eirctiin-
stani*( s attending the death of this cxtraordi-
nary man have been little noticed. Kapin,
Kehaid, Kcnnet, Hume, make no meutiou of
thein w hatever ; and yet, exclusively of the
iutenurit always exciteil \y any great display of
■pii^it and maffnanimity, his soleran denial of
the project of assassiiifttion inoiputed to hiio in
the affair of the Rye-huase Plot, is in iladf a
fact of great importauce, and one which aiigbt
have been expected to attroot, in. no imalt de-
gree, the atteutiuD of the biitorian. That
Hume, who has taken some pains in oanTassiiig
the degree of credit due to the different puis
of the Rye house Plot, should past it o¥er ji
silence, is the more eJEtniordinarj, becanae»ia
the case of tlie Popish Pbit, he layi, and judlj
lays, tlie greatest stress upon the dying dedi-
rations ot the sufTcrert. Burnet adverts, m
well to tho peculiar language used by Rum-
bokl, as to his denial of Uie assasaination ; but
haviug before given us Ui understaml, that bs
believed that no such crime bad been pigected,
it is the less to be wondered at, that be does Ml
much dwell upon this further cvideooe in fii-
vour of his former opinion. Sir John Dai-
ry m pie, upon the autliority of a paper which
he does not produce, but from which be quotes
enough to show, that if proJaoed it wuidd net
ausuer his purpose, takes Rumbold's guilt fir
a decided fact, and then states bia dying pro-
testations *5i^ his inuoccuce, as an instance of
aggravated wickedness. It is tu be remarkcil
too, that although sir John is pleased coundi/
to assert, that Rumbold denied the abaure 1m
had had in the Rve-hotise Plot, yel the ptni-
cular words which he cites neither contaui, aor
express, nor imply any such denial, flc b«
not even selected tliose, by m hich tbe des^
of a^assj nation was denied, (t4ie only deaiii
that was utteretl.) but refers to a general de-
ration mode by Rumbold, that he had doaeis-
justice to no man * ; a dechiratiott whi^ mi
by no meaus inconsisteut with hi:* hn^-ing kci
a party to a plot, which he^ iki d^Mibt, ceiA-
dcre<l a« justitiable, and even oieritorioiis. Tkii
is not ail : the papei* referred toi:» aUdresssiltt
Walcnt, by whom RtHidiuld st;ites hiiuisclfts
have, been Icij on ; and Walc.tt witli his latf
breath, denied his owu participatioii in aordc-
si^n to murder either Charles or Jaiucts^ fbui,
tliereiorc, whether the declaration ok' the Hf-
ferer be iuterpretecl in a sj^eneraJ, or in a pixii-
cular seuse, tliere is no coutrMliction wbatrvtf
between it and the |m|ier adduced ; but tfaiuit
is, that the character (d'a h;*ave, and, as £ir»
appears, a virtuous man, U most uujusiiv aai
er nelly tradncetK .-Vu inciedible coufusuia ^
head, and an uncommon want of reasaoiig
powers, whicli distiu;^uish the author to wboH
J refer, are, L should churilably hu|u^, the tnis
sources of Iiis uiisreprevcnUtiou ; while otben
iiiay probably impute it to Ins desire ut' b!ack-
e:.ii)((, upim any pretence, a iierson whtft
name is more or less connected with thoie of
Sidney and Hussel. It ou£|;Jit not, porbapsvts
pass witliout oliseivatlon, that this attack upoa
RumboM is introduced only in an obKqpeaua-
ner : the ri^^our of government destroyed, saji^
the hislurian, the morals it iucended to oosnclr
* The words of Rumbold^ as reportMi If
TVodrow, were, *' I am at peace, with, fioa
tbniiigh Jesus Christ ; to men I fawte dsH 90
wrong \ what then can confonnd nMi'^
«85]
Jaf High Treason.
Hud made ibe inihat)py sufferer odd to bis
h
ii
of.' ,,,,,, . 1 , ,. , .
sijSfn to munJcr th^ i«o n* n., OMiid
' ♦^rt, fren in (lir ]tK|;jfnL'u1 m , uuch lesa
III 'ir Jrihtt to |>allMic' tlio eriracji
' r>J '<! upnii u'< an acf cd' Munn*-
al i hut it wtt* thf>a|^hr, |»nhnp«,
til purpose of convpyiuiT a<Mltiriiny
II [ ■ d of he-
ti». . ail ul-
It-i III uir irui tTumriii H'tttlld Ik;
!ifl, in bis
TO coil-
si-L- Uifiij
*•'
Di .« nui^ I I
It 1 : »liaiil<«d 1)3
furinim : it is cordirijH'd by i
lion ofniWr^. The dm**]
ny p^^^ellt9 itsctf, must bo, vv4m> tltik drdarfi-
trnei* Tb« asa^frratiooi of dyiiig men
had, and uiU ul\vti3'§ Ua^e, great
ir. ii) tbi^ mintlH of those »h«» du rtot
]iiL ' ' 1*10 inoit
t>i li ; but
iltuM^i ilif! irt-r^iK <M Mini i*riPt bc in
^^tttti IT'mt, it will nut hi J, It is
lir e^L^ ,w .. , „.... i,-..i,
how t'tLV sucU II s a^ijH'tir to bavu
existed iti tbc cu * 'l*h<" i^«i*e *vUere
ibiii npf^cies of evtdeuce wunld be lUe lea^itcati-
▼tncingf wouid be wberc hojw? of iJurdoti b rn-
lerlatrit'd; for tbeu ibe tmin in not tt dyin«T
iDDn in the ^cnse of the nropositiou^ for be has
not llmt ccrtuinty thnl bis fa sehm>d vrill not
Ikvait bim, wbicU fi the |inuiM|mI fotiudation of
the crcihl due to bin assertion*. For tbc same
reftsoD, though in a less de^^rtie, be who bones
for favour to bin children, or to ottier surviving
OODIiection*, is to be listened to with some c^u-
tioo ; for tba wat^nce of on^' virtue, does iii>t
neocsttrUy prove thatof nuotber, nnd h<? who
1 hii Cbddrnn ntir! frUknk iiisv vl \\t' nro-
ate iiftd I -If*
ay think, r -^be
HQgbt not to tiesuate concur nuii^ the mennai.
Betides these more ob\iouis temptutions to pre
yarication, there is nnothtT, wbiib* though it
in«V be Hnfiii»wfijii d^i-eper, yet exptr*cncc
teB< bes iifi to he nHtU*) in human naiitrr. 1
mean that sort of olKtiuacy, or IuIm* kbatne,
ivliJCb make* men wi un\»^i1" '. ' '
tbry ha? e omv arltanrcd^
opinion^ or of tMCt. The u" 'iji « uiu,ivu i «-j
tbe tniu] is alto in thix, ds m all oiher boinau
iMitiiuotiyi » i'ireutirttnnce of lh< "^ *■* * ■ mo-
Btttt* IVberr nun«T of ttto al ited
•r oiuwcagiivilby «f iid«»c«9 lo tbc oppoati^i^ale.
•n, so neither if
, J hv mu foinmfl
A.^. 1685. [SS6
** Ijet RamboUrs iiccbirntion then, be exa-J
ft.i^M.H M....M ii,..« „,.t., ,..|,^^ and we shall tlnif |
r oi iru h, i«i'boQt 1
-^err^iiit it. He wm
f tronj «nt* i lope of [mrtiodyJ
lof did HOI ti. wy^h it; and iti-l
deed, if be had bod any Mi**h rhiincricai ohjecl'j
in view, he mu^ bnveknou n, ibat to huve nup-
filkfl the jj^fjvernment «tih a proof of the Ry<**]
10I1HC A^sahHitnstion I Mot, would he » more I
liiftdy »i»ad ftt K-asit, than a ntrndy denial, to I
obcnm it» He Irff none lit^hind biio, for whom j
to entreat favour, or >vlv»^
%veiT nt si) aifrctrd by an^
ration he n ' * - '
view, he ,i
h-' t-' Is.,:., ,.... **<,.,.. V. _
; so thttt be could notW mtluenee
I . — ' -mnetiu8 nmbm of consisieiiry, lO'l
which, it inav he fifarrd, thai trmb, even in'
the mo<t •A\\ti\\ moments, ha* in mmti ens
been «aerirteed. His timely e•^€l^J^e, in 1683||
bad Mved biiD fr^u the ui'ces»it> of making
any protOHtaiioM iipf>n tbo sMVi)<'(*t of bit innii*|
fieM'v- At that Inne ; and the Hords of th<^ b*it^J
to VV;dc(^t are so ihr from containintg- siicb
^inttestution, that tbt y are quoted, (very ab
anrdly it is true,) liy ' ^ Halrynudv, a« a»I
avowal of (jfuilt* It 'ny is free iVuotl
xUvsv paiti ' * U'uis, iTim:b less is it im-»f
pericbtMl i /al cburatter^ wbi*'h wa
1' ♦ ' iniui^ man. who Mas veryj
]e in iivoHuiK uliat lie b^l
con>iuit, and who seeaitj
lo Imre t.L' \\i in speukin^lMdd trulhai|]
or at le;i<^t , ^nnred lo him to be sueli,;|
without rejrAntitijjr the manner in which bii
beaitrs were likely to reeeive ibeiii. \>'iih
tijiecl to the bisl co n*!idc ration, tbnt of tbc op|K!
site evidence^ it uW depends u|»on tbo vrracity
of men, who^ iicenrdina: to their own account,
betrayed their comrndet, and %^fie actuated bj
the hope eitlier of pnrdon or reward.
*' It fippt HfH to be of the more <?onsC(]i2enc
to clear up ibi«i matter, because, if we !»houtd|
be of opinion, •» t think weall must be, tha
the Mory of tlic ioiciided aHsaMsiuulioo of tbfl
kiutr, in bin wdV from Ne^^nniik^ t, h as ta*
buloos aH that of the siher bulicts by which hi
wu!t to have heen siliot ai W indoor, a most sin«J
gultfr train of reflections will lor<*? it5« it u,
onr miinlH, an well in rrfrard to the elmntcte
of the tiuiea, as lo the meaas by which (IM
two cau).e!i ifatnet) »ucces'»iv«'ty tbe ndrnntnyrfflfl
over etiCh oiber. *rbe Uoyllti^ts had found
impfWhihle to dmctedit llie ticlion, grons ua it{
was, ot the Toi-iBU Flol ; nor coubl they pn *
! It trom b*.'inir « powerful engine in the '
l^of the V\ hitjs, who, duriog' Ibe alarm
iai>r<l by it, i;ained an irre5.i^tib(e Mip' rjority ia
I the Ilonse ot (rumriionfi, in tbeeiiy of Ijondun^
and in mom part*» *if the kln^dom. *•"» '^"*y .
who could mil ijuiet a fjilse iilarir y\
Ibtir advcrHarie*i- fomwl tittle or no '^
raiding: one e<j oj llieir own tavoufj
, hy the mippmr ii of the intended ail
aaastiiation. With r^ard to tbe advaniaf^ei
887J
I JAMES n. Proceedings against Richard Rumbotd. \JM
derived to tlie respecti?e parties from tbose de-
testable fictions, it* it be urged, on one hand,
that the panic spread by the Whigs was more
nniTersal, and more Tioleut in its effects, it
must be allowed, on the other, that the advan-
tages gained by the Tories were, on account of
their alliance with the crown, more durable and
decisive. There is a superior solidity ever be-
longing to the power of the crown, as compared
with that of any body of men or party, or even
with either of the other branches of the l^is-
lature. A party has influence, but, properly
speaking, no power. The Houses of Parlia-
ment luivc abundance of [rawer, but, as bodies,
little or no influence. The crown has both
power and influence, which, when exerted
with wisfJom and steadiness, will always be
found too strong for any opposition whatever,
till the zeal and fidelity of [mrty attachments
shall be found to increase in proportion to the
increased influence of the executive |)ower."
The passage in Dalryrople, upon which Mr.
Fox ammadverts, is as follows: ** The ex-
cessive rigor of punishment destroyed those
morals which it was intended to amend. There
is a letter from Rumbold to VValcot, upon the
discovery of the Uye- house Plot, still existing,*
in which he thanked Walcot for not betraying
* <' This letter is dated August 2, 1683, and
is in the paper-office. It laments the bad suc-
cess of the conspiracy, thanks Walcot for con-
cealing liis name, and contains tliete words :
him. And yet Rumbold, in his last speech it
Edinburgh, denied the share he had had intkit
Plot ; and his last words were these : * Deiik
* is terrible, indeed ! but to me it lias no terrors.
< With my God I have made roy peace: To
< no man have I done injustice : What tba
•haveltofear.?'" ,
It appears from 1 Fount. 369, that in Gal-
loway and the other Western Counties, tbi
exasperation was such, that in Lesoiabago i
man was murdered as having been a taker of
Rumboid.
By the obliging permission of Mr. Secre*
tary Ryder, obtained through the kind iDter
▼ention of Mr. Rose, very diligent search fan
been made, [August 1811] in the State P^
Office, for the Letter from Rumboid to Waleol,
but no such paper is there to be foand at ths
time. Upon a former occasion, Mr. Seoelii;
Ryder, at my request, permitted a diligail
search to be made in the Stale Paper Ofin^
for an article cited by sir John Dalrympfe, ii
being among sir Leoline Jenkinsjs Plapen ii
that office, but it was not to he Ibund.
* It is not unknown to any of us, with wkd
zeal and sincerity you led us on, whilst the*
was any hopes of succeeding.' " Dalrympfc^
Memoirs, vol. 1, p. 81, 4to edition of 1771.
889]
1 JAMES IL Proceedings against Tho* Archer^ AUs. SheiU, ^<n [890
341. Proceedings against Thomas AaciiEa, Alexander Sueils,j
aiul others, for Treason: 1 James IL a. d. 16B5. [Now
first i>ubHshecl from the Records of Justiciary in Edinburgh.*]
turio biir^i tie |v<l
ifciii In-nnit; amir» 14...K *,.!.. ..>..A..;^,....^
c»( I (piitito per nolitttjrnet potcti-
lithg-ow, Justicjanum Geoeialein et boiio-
riibiJes viroit doiuiuos Jacohuni Foiili;;
lie Culling tnuoe Justicjiirii Ctmcnni,
Johaniiein Lockliort dc CaUlthill, Ro-
g'eriun Ho^ de Harcarss, Ale%Htiilrum Se*
Wn dc l^tttiiedden, et Patriciiita Lyon de
CAftti Coiiiinisaionarios Justiciarii dlcli
S, D, N. ilegii.
Curia legitime affirmuta,
Intran,
Mr, Tftomas Archer^ preacher
Mr. Alcjitthdtr SheU, preacher
ThwJitii Siodhartf
David LmtCi
FAh'urd Stout,
William JiicksoTttt *
Wit Ham Cunnini^hante^
Jamet Wilkifson^
Matthew Br^ce^
Archibti(d Campbell^
Oavin Jiuuiil,
John Aluithead,
InDYTED and accused that wher nolwith-
standi n§r, bg tliii 4M>muiun la^re, lawe^, and acl»
* or lhf>«e Prooeediogtt FouutainhiillV ao-
eouot is as tbiloivii :
*• August b, J685. At Criminal Cmti, U
or 12 prisoners are patintllefl, eiiher lor i\mr
<)iido)'al princinles or Jor their bcingf nith
Argyle, VIZ, Mr. Tbuiitas jli^liL'r vnifiistcr,
to whom a pbyaiciao and chirurgeitn beiu^
msni to prison, they declareil oa soul oiia
cotiicii'tire be was rag^ing of a (ever, and not
able to tw brouufbt ti> the bar ; and tlierclbr^
they coQtjQued bis coudemuatiou tat ^otin-
dayy.
** t. Mr* Alt' xajider Shield studt^nt of divinity .
wlm wftM «ent from Eti^^laiod Idst winter, and
ffaa b^'forc tlie arti< W of parbaint'iiti ai)t*r
iniich lehtation, ut bi*t <'«>!jMn.h>d lu vi-n the-
ftbjunliou nf ih«:»c Lj' of
listiiiif to artiiH, <!kc. Um it;
which 19 ctjntc»nn to ilie *«*6d Mri ni iUc lu«i
parliajnent l(tB5f not mentioninfif sue^in^^.
Xh« aimbuplist^ m (Jt'nimnv in tiuf lloi^nt uar
were Ined with th<' namv ibnnula, if they
0<wnr<i their princes ye«i or no ; but it Ah«i«dd
be only ui iiutu hcih. HhieU wouhi havi* rn-
lered a prtitatatu rd tt unly in ko
lar as tt w«» C4jir Sity, but tiu-
.,* ..,.1. .,,.....» ,,f i^jjg kingdom, and constjinl
, particuUrlt*? be the fyft^ Qta4
,.. ,1 parhainent kin«j^ Cbaites
rysing <jf his* luajostieg subjects^ otJfl
;i , M.r of theu), the joyaiug' or tkssrnddtnd
together in armes wiihout hi» nmicstii'S spe^T
eiall authority, is declared to be hi^h-ticiuioii^
anti putitshahle be tbrfauiture of hfe, land atiif
f^tK^ds, and be t tie second act second tsesston 4 [
ibe said tiriit parliament king Charh^ the «^%1
cond, It is declared high treason tor any of hmi
mnjesties subjects to mania ine these po&iuouf|f
tliat it is lawful for subjects upon pn tence i
reformation, or any other pretence ^^hatsoin*
ever^ to enter into leagues or covenantit, or IQ
take up armes ag^ainst the king*, or these cora<«
missionat by htm ur to put limitations upon!
their deiv obedience atul alicndjifeancef and it tl J
thereby statute and ordairied^ that if luiy per^ofij
or pcr»oos shall by vvnling, printing, or othe
fuahcious Aud Atlvysed speakings express an
declare their treasonable iiUentione^i of depn
ing, deposing, or suspending* of bis majentiel
from the !^yle, honour, and kin^lie nume of tb«|
impenall crowno of this reatui, or frtun the gx«
crcise of his royall govenimeuti after sucllj
pri-sou or persons being u|^on suiHcieut prob«i>]
tii)n leg^llie cuuvict thereof, they shall be deem*]
ed, declared and adjudged traitorsi .ind fthat[
isutiVr tbrfuullure ol' Ut'e, honour^ lands an
goods, as in the cajic of hiifh treasunc, and
froi utterly reject
(?U-i!» mill n»-' u 'ii i
itaimply
cquired to dit
ThcQ he compliuncd, Uiat tho only
liberty of a subject behig that of the freedom]
of biH jnd^nicitt and thoughts in controveited 1
caaes, this should t>e retienchcd ; yet, seeiuM
authority i-e(|uircd him, he vf&& conieut to de*l
cbre he onned the present king, and tbalj
it %»Hs unlawtul to raise war again»i him, or t#J
assassinate bis adherers ; yf t a mau might de*
clare many things be could not swear ; and h#]
^aid, though he was a presbyterian^ yet lie wa
against the ini|M>iiition and prci^iag of th
covcunnt itself; and at hist, he atibscriU^d til
(ilyurution; but, in tegiud he had formerly ^
relracled hts taking the said abjuration, an<|
Hiw\ he wds ttirced, it wa» marked now that
.^hat he had done wus loluntary ; they there*
lore rrsoUed only to himish him.
** Thre** or lour, viz, Cuntttgham, JacksOQ
and E<iward Slit, (who had in a mad fit pro
claimt^d the duke ol Monmouth kinf{,) were to
wise OS to own (lie king, and abjure their prin-
<tlles; ami m wi r« rematidtcf to prison, that
i)« y inisiht apjdy to the prity council to ob*
tuiU li.mt^bnieni.
** The rent of them, viz. Camphel, StOfldart^
Ru^A ■ * >v, Uryci%\'C. bv
um1( r triples, or uncb it l
bavttitiu VH II i*-»ing in arms, mm inr ueciiiraj
Uou of war } ami it bctog proven agaiml lh«
1 JAMES II. Proceedingi against Thomas Arehtr^ Alex. SkeiUf [898
jcstie, and atserto that it is lawfull to kinudi
as serre him, are thereby inulty of treason, aii
are art and part of the said tmaouablo dcdu^
tioii. Nevertbelesse it is of rerity that the mi
891]
the twentic-tliinl act first session of his majes-
ties current parliament, the ownin(( or refusings
to disowne a late traiterous proclamation in sua
farr as it declares war acrainst the kin^^'s ma-
by witnesses, that they were with Ar»fyle,
(though the paonels alie(i^e<l the v were t'orceil
by him,) they were remitted to the kno\vlod(^
of an assize, and by their vcniict were returned
guilty of treason,' and sentenced to be han^red
on tbe 14th of August — But some of tliem
being better advised, and ready, now on the
pruspect of hanging, to renounce their didoy al
opinions, positions, and principles, it was ex
pected the privy- council would commute thoir
puiiiftluncut to Ifwoi^hiuent to the planlatious.
•p— Seme of those, sentenced to death, had
got their ears cropt tlio day More, which
■eeme^l to make it rc$ judicata, that they cnuhl
not be |»annetlcd for llieir lite. As Matlisus de
criminibus teachrs, pag. 910, tt teq. But,
Imo, It was said, tht v hail throuj^ed in with
the rest, after thpy l^ail ^ot tlieir indictments
for treason, and concealed it. 2dn, Since that
pana was intiictc<K tiiey had reiterated their
guilt by rofusiuc to own the present king ;
thouirh iiiilet'd tiicy only shit led the qnestiim,
asserting tiiey ou*ne<l all kingly auttiority in
the general ; and when they were put to dis-
own that declaration of war, thev Raid they
disjwnod ail mm dor, and yet would not disown
that paper in particular. And Slit said, he
knew not if he was our king, because new
kings usc<r to be crowned, and then to grant
jail- deliveries to prisoners, and pardons, which
they ha<l not yet seen. On the IQtli August,
four of thir |>annels were hanged ; and Mr.
Archer being recovered, was then sentenced,
and hanged on the 1-1 tli Autrnst."
The praclici* of ciittinti:f)H'the eargofmcn,
and hiirnrng \\vt eiu^-ks <if vvo:nen, K<M)toneed
to tranKport.ition, a])pearj to havo Ihtii very
extensively exercised about this p<.'no<l. See
Wodrow's* History, hook 3, chap. 9.
»* 1685, July 30. Tlic adv^eato is onlereil to
I>rocesti betoro the justiciary, Thomas Stod-
lart, James Wilkison, Matthew Briec, An^hi-
bald ( Jan I phel, Edward Stit, David Low, (.javin
RuMicI, \Viliiam Cuuinghain, John Muirliead, j
^Villiani Jackson, and Mr. Alexander Stiicls, j
for trca&on, n-bellion, and not ouning his ma-
jesty's authority, as also the heirs of the late j
duke of Monniduth, Fletcher of Saltouu, and
Claud Alrxaiider of Newton.
'* Au^^ust G. Thomas Stmihart, James Wil-
kison, uiul I\Iatthew Brice, are found guilty
of trea.s4>u by an assize, l)e<*anse they refuse
the abjiirutiitu ; and the Lonis Kenteneo them
to bo hangf^l at the Grass- market, Wednefulay
August I'^. Thus ultiT lilt* s«ddiers r.ro aU
wost weary of killing in tin' tiHdK, for al-
ledged refusing of this oath, the juslieiary of
new condeiim somumorc upon this score.
«• By other [mpers I iind they were executed
as above. 1 have no further of Th^wnas Stoil-
bart, but what is in his lestiiuony publibhed
Ui.tiio Cloud of Wituessts, whero he says, be
first receif ed a sentence of baDishiDcnt, aoi
afterward, without the least proroealioo gira
by him, ho was called to ebide en aesise, wA
coodemne«l to die, because he owned the aa«
thority only in a« far m esrraeebic to tin motk
of Gotl ; and beoaose he would not eiqucsdy
disown and judge as to the apologetical Ms-
ration. His pa|ier is very plain and natanJ ftr
a common country maoy and ia aa iiiod«t ii
many insert in that collection,
'* Matthew Brice lived in the parish of Cv-
munnorJ&, and Jaines iVilfcisoa lafitiedwiik
him and the ibrmer, not July 87, aa the Cloal
of Witnesses have it» for they were only tiiei
Aiigukt G, but the day named* for any tU^
I know. These t.vo were meetly rnqgettwith
the oath of allegiance and supwrnacy, iiA
being asked if they owned anniority ; thcf
answered, they cheerfully owned all authoritir
according to the word of God. Upoo the
restriction, and refusing the abjiiratioas tkf
were condemned.
** Since writing what is above, I am ansii
by an untiuestionable hand, that this madk
Gavin Hussel, with three others, were esecetoi
at the Grass -market ; and that their caniw
and K|)eeehes were much of the same Mm
with Mr. Thomas Archer's, alterwaid Is k
insert. We see one of this name ii oitad
to be prosecuted, but I have not obeerved Ua
in the Justiciary- registers, though is soekai
heap as is there, I may have overlooked kia,
and it is pruliaUle he was executed aitb thai
1 have been giving some account of.
** That AH Hie day they wtrre executed, lb
Lords, as it were, ashamed aI* cutting of e
many, preeisi'ly u|)on tlieir refusing sacks
oath, and against whom they had no nultoi
ot fact, have belbrethem * William Cuniegbaa,
' John Muirhead, and W^illiam Jaokseo, via
< having refused the oath of ali^umtion, id
' declared themselves willing to be baoidifli*
the advocate deserts the diet, and the criaJHl
process is dropped, upon tlieir aignin«r u Mt
of banishment, never to return to McolM
without licence, under penalty of a thoaiMA
merks."
The follo\iingis the artiVle in the • Cfotdof
Witnesses,* rcfcrrtul to by Wodrow :
THU LAST TlilSTIMONY OP THQUiS
STODDAKT, who suffered at the Gmi-
market of Kdinburgh, August 13, 1885.
*« Men, Brethren, aiMl Fathers, hcarbie; I
being to tuke my tareweU of tho world, I kare
this uiy i\y ing t«[isrua<my, according totbeIsM
of tlie t.ilri.^tiaus of old. 1 beriBg, Mlw lit
same grouiul tor it, tlwt he had, tiho uedit
woni, that wum Ste{)hen, who wae eeadt^Md,
because he spoke blasphenftoue weids mmH
the law aod the temple, ffn hijai^ | JBl art
and f>fkrr.f,JorII!gh Treason,
895]
Bfuitei- Thomii Archer, IMrL^tjcr AlrxnncJ^T
6bifi1| stud the other ju^wns alnn c a>m|)laloeil
mniUi ifhai^iirig ulVall Itar of Ciod, r?^5iHvi aud
rt^iu-d to hia inajestiai nuUionty bdiI Uiw^^,
A, D. 1685.
[tel
havepi'esumei! toronimUt,tini|nre ^mliy of ttli
srucl* eriniea, in 8uu fftr as tls n th
ytiAt IbtiSi ane lidiish und dni< , iLauQ
eon«pinicy entered into b^r the Uia tiirku
ihere in or ii|>pn>ve «»f their \nwn^ which now ^his g^eneration
Ve ^Mtwrr m ihi'ir hatidpi, they c«inrleiiiued
[|if tc» diCf thuu}^{| ihej ccuiM Qotuitties^ so
ttiQch agiiinst me tbr jijieuking tj^^^.iiuiit theni^
iUid thty tjcver e4t«iayed to prove tho sentence
tipem ine; whic]i tuiw I sUalt §t(idy in u wtird,
to 1MVI* \ ou ttu ac:c(iuut ol', Aod first, J re-
c* uiet)"!e of bamshnieot ; luid tiicii,
t)'' 'lin(f fd' that. 1 was eoinmitii'd to
lliejuHticMH lo sihiilc the Tifs^izc, and liicy jiaft
Ufxvu mc t(io sofHcnce of di-jiiii, for no c»th<-r
^tKfp ON 1 can give;, hut bectitise 1 cnuld not
pive ffich nn auswur to their questions uhout the
f;fni iiijtl tlie kiii^*s siulhtmty (as tliey
C »:ouIdiatif,*V ihtir hi*ts/nrnl llkU I
'in sin, h|
reH^iiHhey arc riivohetlifl
thehreuch <»f cnvriijju, \\iiirii uHuij^h it inuil
not be owned hy il»e [ftws of the hind, yet
dare not hut «\in \t. I v%^"''' T'"* ^ny, tis it i
Knid, 1 Kin^ xriu. 15. v suid, /
Iho Li>rdof liitsohveih, If- i . uu Island
1 u'ill itiirely shew mysell'to him tn-day.
uwn it heibre nW^ &nd J own mystelf to havd
joined, and do allow it heartily, in jointn^ ^tithif
that poor {^r^i'Ctited imriy so aiucb dlsowuc<l y
lite tmng that I did in that ease, I thought i^
my duty. I leave my te«;timo!iy to my ♦twn«
iiiif of it ; and that Si
nliii'.h was luost ft*'ii
durst ikiit iiLMnfci the
ai>d so i huinMy con
h^.. ...... ...
dtttjwn ChiiHt's
sl:
declaration ; ' t
come to iliiis ^ >
.n Ttn*^. iniit ! <f)uld not
rior the power thAl thf y
'"f^ Bjjuiost htm, nor
1 1 llieir ntiin^^ ns Gud«
1 .1111 .1 tilenccd,
V aa any
.1^, Jaw-
fill uuthnnly iiet'ortlni;^ fi the wurd ot God ;
but I d*"*ire to he Htdnniisive to h'm will, who
UathcalliMt ine to tilt 4^ and to have htq;1i rhouhfhta
of him. 1 onnot ^<^1 woriU to stt him oui,
but I (ind ftomc tiling to say to the con^rneiuU-
tion of C'hmt, a» it iv Boiff in Caut» it. 1. He
IE the r nod ibo hly of the val-
ley h ; ; ^e that ever I smelled,
atidtK' -' J - .1 r^^^
tuid mi lall
mil ht i-M.^, * ,. ..:. „., L ixxni
I amfCer^ it itt out of k- t, and bv fnilh
in liiM iwerey^ that I v. n it. i shnll
end it with it worfl^ I i my doty to
adhere to ilie wortl of * . , <'* evfry thitig
a^reeahlc therrlti: anil I wouhl sulfer far
every ihintf na njc^round, which 1 think i% rif^ht,
mnd tnk^n out of Uie word of God» havint^
lAtCtiunitfi'ment frotn his hle»t«ed protnii^eit,
ii&. xliii, I* Tint now thiia saith the i^)i'd tl»at
onaited the«» O Jacob, and he that farmed thee,
O fsraet« Tear not, for t ha\ d thee, i
l)A%e cdU'd th(.\; hy thy im i mine.
(i;A>ineHl throil^ij nk ' '
And 1 h.ivethis t«'
"•'■ 'innTenlis, Ik* vt ;
• .»t_', and e«t"! \ nrj -ti. \''< ■-■ u.^ > i
tit lie lull fjl II
lK-\ndrul in thi
, hn d wv iic it
with him : If v^
ii i>j,u u lib bim« It tv jfo<id II L
*' And, therefore, I leave my testitnony agtiinad
all superstition and error, coDirary to that waj^]
I received of the Lord there ; and every thing
contrary to the word of God. I leave my tei«'
timony aiafainjtt all unlaw fid detds, and alT^
nfiiirderinif act* and acti; . ver thejri|
lie, 1 leave my teatiraons opery amT
l*relacy, and wlmt^oerer [*Uiul L. not of my
tieavenly father'a planlin^, and every thin(
contrary to aoimd doctrine, aod the powe
of ijodliness. 1 leave my testimony also]
ainun St these tliat hear til t^ ^" ■ ^ " * ■
ttH them ihal havesatd i
a He ; that is hecause thty •*'• -*•-. ..
he tljeir rule ; for that h the only things
«!h>?iM »:jAr tfi he our rule, in all llie ktej^f i
our here* Now, I think I mu
take i< _ i II of alt created comfort^f, an
all the thiiiiga of the world, which have been i
l^reat a mean to make many of Uiis rpnentiotl
st*af at lhecroi^& of Christ, which is ti
taken hy the world* He waa so con !
that he pa veil the way for poor sinners UmiiiLitl
iind mode it straig-ht and easy ; and wonderfuT
it is to tif ' The way that Irads
heaven is ht, and very eusy also
-r ; and nl
iMrn, and « .,...,
vv peace, and shall
, .. '. Ji is th'* rhii' r *>r nd
ith God, f
ninjl* and > II
with joy in toDowing' iiim, who ii
Lie truth, aod the life ; and whom t^
lb everlaiitifir ; that dcHh 0ml may
coaragi! to tEo«« who love this war
i<t his Li^t In an |j^eatly reproached by tb
people of tht« g-eoeration, I think ye maj
conceive whut I nM*an by tliu tMfQg^ of ih
k| buti^^JCciaUy now* O ? but ihepco^dg of I And. agw, my dear fiieudg, atid A
rdKiw-tufl
895]
1 JAMES IL Proceedings tigainH Thomas Archer^ Alex. Sheibt [89S
Shaftsberry, Essex, Ar^ le and other rebells
and traiton sul»jccts of this kint^ome aiid of
England, fur killing and murtherincf, at leist
seizing upon the |icriione of his sacrcnl majesty
and Ills royali brother our lute gracious tiore-
raijrne kinjj^ Charles the second, and for raisins^ g^oiidb and houses of hisjifajesties good suijccti;
in the shvres of Ar|irylC| Tarbat, Higfakndsail
Islands thereabout, in open rebellion a;»aiiislhii
majestic and his authoritie, did take in lal
mnntaine forts, strength! and garrisons, agiiait
him and his forces, ilid robb and plunder tke
open warr and rebellion in l>oth kinj^donics,
and fur furnishing men, money, ships and
armes to the late earle of Arjjylc tor that eflect,
and aceordinglic die said late (?arl of Argylc
and the saids Arch'bald Campbell, David Law,
Cavin Russill and Mr. Thomas Archer, and se-
verall other traitors and rebells did invade this
kingdom, with men, ships, amies and amuni-
lion, and landed at the West Iliirjilandii of Scot-
land H|}on the day of last* did issue
furth treasonable proclamations, and declara-
tions, did cunvocat and gfather tn^rethor his ma-
jesties licd<;es to the number of with-
and brethren in the Lord, <> but the counsel of
the Ijord be wise in bringintf me hitherto ! And
T shall say no more, hut touch at one thino;, and
that is, that hei*e I join my hearty testnnony
with all that ever the people of God did in his
way, and for his cause in his rro^pel terms ; to
all the blood shed for ihc tr^spel, in all fields
and scaflolds whatsoever. So 1 take my f.»rc-
well of all thinfi^ under heaven. Farewell to
the world, the flesh, and sin ; ami also to all
friends and relations, and kinsmen and brethren,
and also I take n\y farewell of mother and
f>rethren and sisters, and also I bid farewell to all
my wonted privileges and enjoyments ; as also,
I take my farewell of all the sweet societies
that have been so refreshful to my soul several
times ; farewell friends in Christ ; farewell sun,
moon, and stars. Welcome heaven ; welcome
my God, and anpfcis, and c^lorified spirits ; and
so come L(jrd Jesus. Thomas Stoddart.
*' T(»j;etlier with the forejfoiny;^ martyr, two
others received the sentence of ileath, viz.
Matthew Driee, and James >Vilkie. who suf-
icred at Kdinburph, July 27, 1685. The
former whereof declares iuhbt testimony, that
they were interrogate only on tln-se two ques-
tions. 1. Will ye take the onth of alle<riance?
To which they answered, No, we will iinl take
it. 2. Will ye own the authority ? They an-
swered, we will own all authority accordinj' to
the/vord of G(hI. Upon which they were im-
mediately all three sentenced to be hanjred.
WMionce the said martyr very justly infers,
Tliat they had nothinjj else to charjie upon
hiru as the cause of his death, but that he spoke
ofthewortl of God. His testimony, as to all
the material heads, is consonant with this of
Thomas Stod<l»rt."
It appears by a record published in 2 Wo«l-
row. 4»1, ^bl, thatSlodhart, Wilkiison, and
Brycc had exasperated the council by not only
obstinately relVisiiiir the oath of allei>iaiiee
(which proba!>lv woulil have been punished by
transpfirtation) but by ** most impertinently and
indiscreetly misbehaving^ themselves before the
oouncil."
* So in Originftl.
rendivonzed and exercised theni«e!rts^ did
scoutt furth kill and murder severallofbisnif
jesties g^d subjects and souldien, and did eon-
tin uc in open and avowed rebellion against Idi
majestic and bis authority, committing all ictt
of hostility and high treason, until at leaglk
thcv were dissipat, defate, and taken prisonm,
and brought in and examined before tbe lords of
his majesties pri\y council and justiciary, wber
they most treasonablie did and doe own and
mamtaine the treasonable jiositions after-an-
tioned, viz. That itifilawixill to rise in tnaa
ag^ainst the king's majestie, and those coauwi-
sionat by him, and to dcpry ve, depose and m-
pend huQ from the style]^ bonour and kiogfc
name of the imperial crown of this rcalmc, ud
fi*om the exercise of bis royal! goveraiuetf.
And they did put treasonable limitations U|M
their due obedience, and allcMlj|rean«:e to hiu;
and they did most treasonablie disown thekiiifr'i
majesty and his authority, and did most trei-
sonablic at least refused to disown the fonud
proclamation in sua farr as it declares 'wv
a«fainst the kind's majestie and asserts it JavftI
to kill such as serve him. Of the wbilk tres*
sonahle crimes and positions above spectfit,or
ane or other of them : they and ilk ane of then
were actors art and part. Which beiii^ foind
be assyse, they ou^'ht to lie punished with fbr-
faulturcof life, lands and goods to tbe tcnwtf
others to committ the lyke herefter.
His Majesties Adaocat produced a warrud
of counciil for i>ersewinqf the persons abore
named. The lords in respect Master Thomtf
Archer \^as so sick and unwell as he wisoal
able to be brought from prison, coutiuue tU
d} tt against him till to-morrow.
iNTERLOQurrua.
The lords havinpf considerefl the indytraei^
against Mr. Alexander Sheil, Thomas Stodbvt,
James Wilkieson, Matliew Brvce, anent tbdr
owning the treasonable positfons, nienttunod
in the lyMI, and owning, or not disowning tbe
treasonable declaration therein meutioneJ.
They fmd the samen relevant, against tbcm
se pa rati in, to inferr the paine of treasQo.
.And also hnvin^r considered the lybell, ag.-iiial
Archibald Campbcl, David J^aw, Garin Husnli
anent their havini;: b(Mu in the rebellion with
the late Arjrvle and other treasonable artidei
lybelled against them. They find the sanieR-
levant scpuratiiii to inferr the paine of tressoOh
and remiiis the same to the icnowledgo of the
assyse.
AssisA.
James Cockburn, goldsmith
Robert Smith, merchant
Andrew Duff, merchant
897]
nndothta, ft if tli^h Trcatnn*
A. I>. 1685.
[SORj
i\ ii), merrliftnt
T mitorr
*I I), tnerctAlnt
/oliTi AlrXLinder^ wri|^ht
Aduin jMuir^ plover
Ani)i*ei¥ \l(iiik*urr» |i€utlicrer
William Arnistmiig, trunk maker
Jolin UlaiLkf viDtinef
Ttie Assyfsr UwfulUe fworti, no objeclion of
Hie Uw ia idecootniir.
Eiiteard Stott owned the kind's aiiihonty,
mud that be is his lawFulI king, und prayed lor
biro, and dinawiieii the apolo^elioil dcclnniliOD,
And all iraiterotjs priiici|iffs^ und practici*ii, and
clflftcd td pve his OAth thnt he never pive in-
fellf^enreto any of tlie rchc-Us, whcrupon tUe
Jb'rdi drs^-rtcd the t\yt!i n^jinsl him, und re-
niJtlL'd hint hack tn prison that llie Lords of
CrinnciM might dinpost: upon him at their
pteftsure.
Probatiom.
Hector M^Gibhnn^ in Cowftll, aged twcnty-
Ibur ycai"s, niimnrrinf, ntirijed ami mvornc,
fVpons^ he ktiriws Arcliibahl Campbell the
fkannall, nnd saw hiin tn ihe rehellion wrlh the
:ite ArcryTe in armes, nnd n^iw Daviil I^aw, nnd
Gavin Uiijisil lykeunycs in the said r^bt^flion,
and this is the trutli oh he shaU aniswer to Gud.
Sic Su b$cn bit ur. 1 ] ectoR M *<j muQ3i *
Vougat M^Gibbon^m CotraM, ugffd twenty-
five yi*»ir», mJirr\ed, pni'tfed, atid s\»nrne» De-
nonshe knowcs Ardiihald CainpheH and lia?iu
liussilf and (tai% thir-m in the rvbrllioii with the
late Ar^^yle, And this is ihetrifth as he shall
ansvrer to fJod*
Sic Suticrihitur. Dvqku* M'OinnoN.
Gilbert APBctiur in Ula, ajjed fuiirtie
five years» unnmrryed, piirc-ed a ml sworne,
Depons, he sawe Archibald Campbell, David
I^we atiit fiavin Rucftill in the iL^hcUion with
the late Argyle, and this tii the truth, us he
ilial) answer to God. Depones, he cannot
vreit.
Sic Suhtcrihitur, Li^uniGOw, L P, D.
Dyrt dtttrtciioi loCunningkam and Muirh*ad.
The said VVillism Cunnintjhame, nnd John
Hiiirhf^df did g\\v in a IVlilion Ki^ed he
thetn, and making mention, that thev vicre by
file pri*y connciri^ remitted to the justices iL&
If thoy Imd diwiwned the kin^^'s airihority,
and nt"f* Ttnw iudyted fur owmn^r thrsf- Irea-
•'•r f<on^ rojlowin^f via. That it is law-
r*» I arnie««gtilniit theking'^majiMie,
•nd lis niigjonia by him, and to de-
pryte. > I sntpend limt from the siyte,
pyoour iinti Miijflie nnmr of the Impefiall
OOfrn^ of thi« r^tfi^, und from the cxcreiic
Chia royall i^tivernnK'^tt, and for jniltin^
Mooable limitatiotii npga their dui oUadi*
VOL, XI.
etice and iliegenncc to his maip<itie, and irt^A
«on»ddie disowning the kin^j'S majc^tie atul h
amhoriiy, ati<t f<»r tlie ireasnnnble ovtninjf,
least rffusiii^j to disiiwn i nabte pri
clamation declaring war : ^ing an
assiTlrng' it law full tu kiii yiutu o* !if?vfe hii
The anhls petitiuiirrs did deny their itidyt-j
mmt, and disou tied the pn^ilmnslv! '^ '
did fcolemtilie abjure the tradoroos* i
in Situ tiirr as it dcctares waii ugain^
or tfione C'onmiis^ionat by him and ii
it is lawflill to kill such HJ serve hi i ;
utn\ uwnetl the kin^^s majeiiitie and his unthcK
riue, ut)d ufK^rcd to kUTur never to rise in nrm
otraiuitt lii% m&jt'Mits ur any commissituhit h|
hinif and prayed lor his iiY^je^ics loiig^ an
pmsptTons rcigne^ and humblie ciaveiT, lii«
lot'd^ svi>u!d desert the dyet ngainst them ninl,
sett them at liberty ft-tun the bar, or wonhl re*
milt lliem to the council) for their liberation.
The lords Iherfor deserted the dvet as to ihe
said VVilliain Cunnin^''liam and John Muirhcad^^
and reinitts them hack Ut the coimrill, IMasre
Alexander 8heill, havmjj^ii^ned ihe abjuntiiorfJ
and having owfted the kinj^'s authority, baS
not upon oatb,^ the king*s advocate ifi re4
♦ Woilrow (vol «, p, 136) states, that in i
letter dated Hotterdam^ >iovetnbef 2 2d,
16B0, 8hieli, writing concerning' the Qnecn%^]
iL-rry paper, (See ?oL 10, p, 795) declared htii
self for disowning: the king*s authority.
Wodrow ifiveB but little account of Sliiels [
referring readem to a pnnteil Narrat]% e publish*
eti from a Copy of what Shiels himseif lef
Thii I ret^llect not to have ever seen. Wod-
row says however,
" By the council- rcaisters 1 find ijeneraf
Dalziel ordered to setuf a party U% I^eith, tQ\
bring- up Alexander Hhiels and' John Frflzer,*!
masters of arts» Andrew Cra^^ford, Charle%|
Gi-ay* William Cunniiijjham, Wifliam OH-
phant, John Martin, ami John Foicmin, sea^
down prisoners from London ; and March G,*
Mr. Alexander Shieli l»ein^ c.\«mined bc^
fore the lords of justiciary, * did abhor, re*
* nounce and disown in the presenec of the AU i
'mighty God, the late pretended declariitioii J
* of war, in so far us it declares ^var sis^iunst)*
' his majeity, and asserts it lawful to kill sucti
* as serve nis majesty in cliurcH or state«
* army or country ; nnd August 6, Mr. Alex- '
* ander Hbicln having j^igned the ahjuratiou^ J
* owned the ki«;j*i* Jiolhority^ hut not up
* oath, is remiited b«ck to the counciL^ And
by their registers 1 fmd, AujjoslT, he is sent j
under a guurd to the Ha»s.
** This is all I have observed about him WJ
the Iteeords. 1 can only further refer thaj
reader to the printed account, now in the htmd4]
of every bofly» iv litre the circu main nee** audi
i]iiAlifiC)itioiis of his doing what is recordctt lit J
the regmters, will be found,
" Mr, Hhielai was a muif^lCf of extr ' / ;
talents and nsefulncs*, he waswtJ
mo&t Itranidie*! of valuable learning, t-n » thu^i i
c|ui<k nnd piercing wit, and full of xoal, an4l
3 M
S99]
1 JAMES II. Proceeding* againtt Thomas Arehei', jUex. Shalt, [900
/
KpL^ct thcrof <1eclareil tliat the justices might
contiiiui^ the dvct aufainst him, and the said
Master Ak'xaniler did humbly beg the lords
wouhl ciMitinuc the same, which was accord-
iiig;Iir done, aiid his case was referred to the
councill.
Followes the Verdict of Assyse.
The Assysers above written, all in t>no voice
by the mouth of James Cockbnme their Chan-
cellar, (finds Thomas Stoddhart, James Wil-
kiesoii, Mathew Bryce, ^ilty, in sua farr as
they refuse to take the abjuration, and to assert
his majestie*8 authoritv. Xykeas they do all
iti one Toicc find ArchibaM t.*amnbe1l, David
Law, and Gavin Hussill, guilty of being at the
rebellion with the late Argyle, in sua farr as
they have acknowledged tlie same, and lyk-
wayes it being relevantlie proveu.
Sic Subscrihitur. J as. Cockburn.
The Lords Justice Generall, Justice Clerk,
land ConiDiissioners of Justiciary-, iiaving con-
sldereii the Verdict of Assyse, They therfor be
the luoiith of John I^eslie, Dempster of Court,
decerned and adjudged the saids Thomas 8lod-r
hart, Junies Wilkicson, and Gavin Uussill to
a public spirit, and of shining and solid piety.
By many origiual letters of his in my hands,
1 tiud him opposing the heights which some of
tjie society people ran to ; and whatever
lengths he went in the troubled and oppressed
state of the church, when rules can scarce be
kept, yet as soon as a door was opened for
giving a testimony against what he took to be
wron«f in the disturb^ statjs things had beeo in,
lie canic in, and brought multitudes with him
to join ill pubKc ordinances.
" At and alter the revolution ho was of sin-
gular use in the army, nnd valued by tl^at
great judge of men kmg William. After he
Jiad served Ged there he cnmc home, and was
settled at St. Andrews;, and was a successful,
serious, and solid preacher, aud useful mi-
nister in this ehiu-ch, till beinr;^ moved with
love to souls, and somewhat of the old apos-
t(»lic spirit, he was pitched upon and prevailed
with to go. over with his countrymen to our
nutioual settlement at Darien m Amerit-a,
where, by letters under his hand giving a most
particular account of matters there, 1 find his
spirit was sunk with the divisions, impiety,
and unrighteousness of too many of that hand-
ful, and perfectly crushed witli the fatal dis-
•npointment of that undertaking, which, he
snews plainly, had it been iiiithfully and well
managed, would have been of unspeakable ad-
Tanta;:e to this nation, as well as to the holy
Christian i-eligiun. lie died in Jamaica of a
short sickuess, ni\cr they bad lefl Caledonia.
After his death this church was brought under
new debt to him, hy the publishing of his es-
say upon church communion^, \« liich 1 wish
were more read and considered by such who
Tvitlulraw from this national cliurGn."
1 supuose him to have been the author of
the " Bind letLoojM.''
be taken to the Grasf Jtfercat of Edinlmigli
upon Wednesday nist the twelt ilay of Aim^wt
instant, betwixt two and four a cIod( in theaf-
tcrnoon, and ther to be hanged on a gibbdlS
thev be dead ; ami all ther landi, ht-rel^^N,
tacks, steddings, rouinea» paaKWoai, goodi,
and gear, whatsomever, to he Ibrfaiilt nd »
cheat to our soveraigne lord'a i|se : which wip.
pronunced for doom. '
Itk AuguH^ 1685.
Mr. Thomas Archer beioff testified tabeM
sick and unwell as he coniil not be hroogk
from prisone to the barr, waa ooDtinoed ti
VV'ednesday next, and the J^yaemaphmiU
attend.
littk August, 1685.
Intran*
Master Thomtu Archer, Preacher.
Indyted and accus^ for the cf^ines of bi^
treason and rebellion, aod others mentiooda
his dittay, recorded upon the 6th of Angul ■-
staat.
Pertewer. — Sir Georve M'kensie of RsR*
haugh, his majestie's adVocat.
The Tjoros having oontnlered the lybdl i^
sewed be bis Majestta*a Advocat a^ainttlfr.
Thomas Archer, prisoner, anent his joyaiagii
rebellion with the late earle of Argyle, aoi
being in armes with him, they find ue nam
relevant, and remitts the sanie to the kaiyV"
ledge of the Aasyse.
AssiSA.
James Cockbnm, Goldsmith
Archibald Duncan, Merchant
Itftbert Smith, Merchant
Francis Brown, Yintner
Andrew Dnif, Merchant
Thomas Crichtoun, Merchant
James Brown, Feltmaker
James Park, Cordiner
John Brown, Glover
John Alexander, WrigKt
Adam Miiir, Glover
A ud rew Moutcurr, Peutherer
George Brown, Mason
William Armstrong, Trankmaker
John Black, Vintiner
The Assyse lawfullie sworn, no olMediM '
the law in the contrare.
The Probation. /
His Majesty's Advocat for probation addpsd
the paunalPs own jutjiciall confession, vrhtnff
the tenor followes, viz. Mr. Thomas AvA*
prisoner bein^ examined, coqiasses an4 4^
clares. That he knewe the late Araryl^ ia Hilr
land, and that he imparted to the dedaianft hil
designe of invading this kingdome ; anil tlm
the declarant went from UoUand to Iiebai ^
tore Arg}']e took shippii^ fttMa Ho)|aa4 M
that the affair lie weu| iygc took no i " '
that his errand tl^T from Al^ljie w|4i |o dhM
some persons to opn^ ot^ ti^ JoyilB VJlJMii
syle» but non s(. ih W
mmi^ mmjBior ji^ ih^
flOI]
and others, f/r Hi^h trtasofi. A, D. 1685. [Wi
Bdtnburffti on PHtlay next feeing the fburteeu I Nj
day of A^ust ini>tAril» betwixi two ami lour j
dock in the ^Aermion^ «tni Iher U> U* Iratigfei
ou ii ^ibbrt till be be dead, and nit Uh htuJ^I
was seat to gi? e adi^ertisment, Confe^t^s he
Celtic (vvcr 10 Arijfylc tiboul a fmirtnight atler
Argvle- landit in ibe west, utid stayed wiih bim
ittitiil the tvmetbey were dussipat. That he
receaveil a ihott in biunydc* IteiiiiX wiib sir John
Cochrrtn*H fmi'tie near to the Nioudakl, whcr
iir Jobd (.'on'iirttn was with his fjorLte el\er the
break, and ivas carried to a lioiiiie near by, and
*mi ther «ppretief}dcd» ami that he conferied
with tir John that momin^,
Sk Su^tcribk ur^ Ti i o . A aei i lr .
Tlic said day the above wreilteo dechunlicn
beins^ read to the patinall in presence of ttie
Justice^ ' ' - *-ors» he judiciallit- renews and
ftdh«re^ nen in all poynts, and cou-
l«ssea lie iiuii £1 ^vvord.
Sic Stib$cribitur, Tuo Archer.
LwLrrnoow. I. P. D.
Followes the Verdict of Assyse.
The Avsyte all in one voice find the pannalli
maikter Thoiiias Archer, giiiUy of convening-
with the bite Ar^ylc in Holland, and his being-
ill knowlFdg;e ot Ar(;}'le's desitrneto invaite this
klngilomt.', and n\ bis joyninif wiih Artryle and
the other rfhells in the we&l of tk'otland, aitd
of hia heinij with them in an net, and continue-
in^ with them till they were dissipat ; and that
in respect ol hi^ own judicial comession.
Sk Sut/Kribtt^tTt J. Cockburn, Chancellor.
Followes the Doom.
Afler opninjf ond rending of the whilk ver-
dict, the Lords JuBlice Generall, Justice Clerk,
and Couimi'tsjnners of .Tonti^'iary^ therfor be
theinouthoi « nrsier of Court,
ilecerned an! i^sterThonDaa
Archer* to Ur inkcii m> iiie ^jrass ^SJarcat of
* The folio vfin^ piU'tlailatii of this pera^n
occur in VV^whov* :
** By the t^onncil-regijtlefs, I find, June 9,
16^2, Mr. Tb'unaB Archer liiftd been a lon^
ttniL' in I he (^'anongfate Tolbooth, for Mng ai
a hiitisiLt-contfuticle, and noucotiformity. He
was an exccUetit youth, liroihcr to the fore-
tnetttjuucd John Anther, a t^ood schrdar, tint)
okiav attident. W bile im wan in the i 'jsnf»n^ate
ToUmoih, I am informed, he ]*> ">elf
liMMlerof the tldirew tonpie^ tli > k,
8|jffmok» aud some other <*( the Onroi'^i inn*
nigtii Vpon the ^ih of June, Un pclittons
Mifc Council, _ ^*' ~ " ' - desi|fn to leave the
kin^om, Oii Council may hbe-
rate liiro. Lu^,^ ^..^ .>>'diin^ to be pnrven
Itt btiti, and be h»d hen lon^ in priton, so
l9tition i«i in fluti'il nnd tlic g-otKl yuutti
over ' I continued there,
iDueh ; volf in all valuable
i%A ! i\ a*i well OB solid
f0flni. T : .binrd by Mn Fie*
lirifiif, ftnd tifte ttuti ot thu SiXtis utintsterA then
«t Rotlenlam, Mr. -Ilexamkr H.iMie havinj^
ofRiched ihf Ordinution sermon. Mr. Archer
md biort licmurMl in the rxc^tUcnl bdy Hutdei**
rdy, before he wait takts, wbt^ wai tl tbc
M as
Upit
lied J
aitr
fnmi
mi-*
ihp
lap,.
I
..,1*
tori
■i 'IK
Hefl
♦* TbcreveremlMr T in
iber to John Archer ' o
I have the ^l>Htn^ i
nisters and otliv '
ptTK'SS of his ftct|t*i,im.njtc, t ... i.
very early to inchne bis heart la i
when he was little mf>r^ <l«ii" * «!iii i
nenl miniJiler, and v\
mrrly nvcntioned* >J
gave him tlmt charftcter, That he ma<b i
science of lilting hi$% bonnet^ that is, of ihc* mosi
niiunte actions of tm life, and did all uith an
holy tendemes*, and out of a (fHnciple of rcli^
fi^ioB ; and yet afler be had i^one throii^b bii
University studies, be wanted not shaking and
eiercise abom the state of his soni ; at lr ngtfc
he ^t comfortalily out of all, and enjoye '
much of a life of serrnity and conskolatioli
thronsrh the remainder of bis time.
** When be received his d^-tfrees at the TJni-
fersiiy^ i think, of Ht. Andrews, it was ivitb'
ll^reat applause, and tht^ ma^iters who cx:;mnn«^d
him, declared they had not met with his » i I
ID learning tot many year*. Home years r. f it r ^
when chaplain to tite lady Hifldel, in that coun
try, be was licensed !o pieuch the Gospel f ^
Presbyterian mini^'ters, atid bis sernifms we^
very judicious, metliottica^, and most McnptW
ral. He wriR si> exact in what he delivered
that he negflected the manner, bciifig; inli*nt up<
the matter. He was not so acceptiible to vu
^ar hearers, as some other young^ men far in*
lerior to him in abilities.
** His conversation wa« very grave, sedab
prihleul, affable, and cheerful ; he wait an
celkvit scholar, vf ry bookish, atirl grnte himself
to reiidinir, meilitation, anil prayer. When
staying^ in a jLTentlcman^s hovise in the >lri'se,
he wiiJi^ alKJut the \e>ir 1002, taken prisoner,
for no other fault than preachinj; ll;e Ciispel
now and then *, and, as we begird, he was
brought in prisoner, and contintied .some
months in the Canon^utc Tulbooth.
»* There be improveil hi** time very closH;
and in a little, made biutHcIf alisofmrly iiut^n
of III' ** ' lonfij^ue, and w.'t^ r'J
ofboi tjttl Lmifuages I
At irui^'^tii iiti was bani^^hed tlic ki(j;/uiiihj nndl
made to si^n a bond never to return to his na*f
ti%e country, without the ifovernment*s allow-
Wice ; and he rcliri^d to Hnllan*!.
** In Holland, he might dy improvctl in all
brant: he:« of valuable learning ; nnti while thire,
^^^^s i!iniTr<vrd k» rdtrect the Dutch editUMi «if
* prmlififif. He was there
id the (tos pel by the Scots
mtoihtei^, from their deep sense of bis exrcUcnt
cndo^vinents. Mr. Rtdjcrl Flemint^, and Mr.
Alexander H;i^ <'<l ut bi<^ ordination,
•♦ He was a i his Imnd vins fjoi ui
by bti friends m N.'<»tland, from the CounciJ
othtrwlle 'III probable he would not hnv*^ coi
1H)3J
1 JAMES 11. Proceedings against Thomas Archer^ Alex. SheilSf [904
heritages, Uuckskj steddings, roumes, posses-
sions, i^^oods and gear whatsomeFer to oe tbr-
iault and escheet to our soveraigne lords use,
wbicli was pronounced for doom.
' seized to have come back. Beiug a youth of
great gallantry and spirit, he was prefailed
upon to engage with Argyle.
'* After they were dissipate, be got over
Clyde, and was in the engagement at Muur-
dvke, where sir John Cochran commanded:
Ilis horse stumbling, fell to the ground, and
his pursuers might easily have made him pri-
soner, but such was their barbarity, that before
Mr. Archer could recover himself, one of them
jioured in a pair of balls into him, whereby he
was sorely wounded, and while lying wounded,
he was robbe<l of his bible, watch, and some
gold ; and, us we have heard, after he had lien
bleeding almost to death, he was, by his friends,
carried into a country-house, where he was
8<ioo taken, and bniught in to Paisly, where
his wounds were dressed, and were extremely
painful to him.
*» Thence he was carried into Glasgow,
where he remained some days in great distress,
and very low ; and was sent into Ediuburgh,
by order i>t the Council. So extremely weak
was he, that he was not able to sit upon a
horse, and therefore was sent east upon a cai-t,
and, i«ith no small ditticulty, the honest people
in Cli-sifow prevailed to get a featlier-bed laid
under him.
'* iieiore the Council he was reproached bit-
terly, that he bad broke his engaj^eroent by
bond. This was no small grief to him, and he
regretted vcr^ much that he hail beeu made to ;
belio\e that his friends had got it up ; and the |
Council, July \'J, put him over into the hands
oftbc criminal court.
• " Wiiile in prisun, great importunity was
used with people in puMcr, for his libf ration;
and it was represented lie was in a dying con-
dition by his wounds, and ph\sioians declared
80 much ; but nothing v^ould prevail with
them. In all the turns, they resolved to have
some ministers sacnticed to their fury, the
grciil Air. (Juthry after the llestauration, the
excellLMit Mr. Hugh Mackad after Peutland,
Mr. King and Mr. Kid a tier Bothwcl, and now
worthy Mr. Archer. The duke of Queens-
berry was addrcs-ed in a particular manner,
and even by his own son, who had a high
valui? ior Mr. Archer, but always received with
indi^naiidn ; and he told his son iu very odd
terms, Mis life could not be .spared.
*' Ali thoicf eiKk'iivours faiiUig, a design was
laid to have hiiu secretly conveyed out of pri-
son, and it came so great :i Icncth, that once
the »enlr.icl8 had money given tTioin. A wor-
thy ir<'ntlevvonjan, yet alive, Mrs. Montgomery,
serva'^ i" the I. it.' excellent dutchess of Ha-
milton, bo to IV C.I ton dollars that way. In
short, eviry ihmg was niaile ready, but he
hiiiis<>lf broke the project, ami told his friends,
that lie reckoned himself a dying |ierson ; and
seeing he reckoned be coul^ not serve his
The said da? William Cumnngfaame, Joha
Bluirhead, and Willtam Jackaoiiy prisoners, ia-
dyted and accused for the crymes of bigk
treason, rebellion, and mantaining the treaMo-
Blaster in any other maiiner» he did not tbiok
it his duty to dedine a testunoDy for him sad
his truth, by a publick death.'*
Wodrow then briefly states irbat oocnrred it
Archer's Trial, and td&t Bolicing: that his en-
cutk>n was delayed till Friday, Aiignit Slit,
proceeds thus :
*' I am sorry I have no latge accounts of hii
christian and cheerful canria^^ on the acailbU,
but shall here insert his last Teatinaony, vliidi
he drew up in prison, and delivered as macfa u
he was able at his death, and I give itfroa
the original co]»y, yet rcmainuig with his
friends.
The LAST WORDS and TESTIRIONY rf
Mr. THOMAS ARCHER, Minister of
the Gospel, which he designed lo speak as
the Scaftbld, August 21, ]G85,-and left
with his friends, subscribed with his on
hand.
" My weakness being sach, through I019
sickness, as I know not when I may be sur-
prised with death, find being persuaded in my
own mind, that in some weak measure I de-
sired to follow God's call, whilst I came akatf
with this (now broken) |»arty, andy that w^
some simplicity and sdf-dcnial, 1 desired to
aim at God's glory and the comibrt of kit
church.
'* 1 desire, in some sincerity of heart to
leave my mind in these tew lines, for tbe u-
tisfaction of my friends and others, 'fhe as-
prehension 1 had of the great danger of ibe
Protestant religion, and the inibnnations of the
exorbitant oppressions of men in their esttin,
hut es|)ecially in their consciences, even to
their wasting were my motives to engsgv ii
this enterprize, if not sufficient 1 leave 11 »
others to judge.
'' That Popery is like to be tlie plagoe <f
tliese lands, niany now begin to be eos-
vinced tliut would not believe it before ; tbe
atheism ami profanity of the generation is a tit
disposition for it ; and, it may be, the evil of
it may begin to be less seen, tliat it may be ac-
counted a light matter : but let that srriptort
be seriously^ considered, Hevel. xiv. 9, 10, 11.
And the tliird angel followed him, saying with
a loud voice. If any man worship tlie Bcatt
and his Image, and receive his mark in bii
forehead, or on his right hand, the same sliall
driuk of the wine of the wrath of God, which
is poured out without mixture, into the cupsf
his indignation, and he sliali be tormented with
tire and brimstone, in the presence of the hdy
angels, and the lamb ; and the smoke of tbsff
torment ascendeth up for ever and <
they have no rest day nor night, .who \
the beast, or his image, or whosoever 1
the mark of his name.
** It was always mj judgmflBl»«BilJNpsl»-
. 805]
and others, for High Treason,
A. D. 1685.
C90S-
ahte posit ioos, Imvinpf reftisod lite oath of al-
l©ttireance,and havinr/ declaietl tlu^ntRtlves will-
iog U) be banished tbis kiii^doinCi and his majes-
tic* Advocate having past fit>ro llie cnrainal per-
ilie ill it» (hat the oMJi^ation M' the covenants is
national, and inrlLs^olybU^ and that even the
po5;tcnty renouncing therUf shall be found
jjy-uiUy of horrid |»erjiiry and apostacy before
Ciodf since in them we lirbt engaged imrue-
Uiately 10 serf e him.
•* 1 o« ii the iilone headship of our glorious
Sa*i<>iir Jesu» Christ orrr his church, to be a
truth from scrijiture moct clear and ineootro-
vertible. To ^et up officers <i¥er his church,
«nd not of his appoint meut, io^ve lairs to her
of that nature, is an usurpation roost fearful^
««ipectaJly ithen it may be iu the hands of a
persoiif not a meruLer c>f ilie cliurch ; and to
rohche church of the mintKtrriiLi ruJing' power
oiiuinunicaled to her officers by her head Christ,
Or to hinder her of the due exercise of it, is a
ty rami y and oppression most crying before God,
'^ j haieewT o[iposed roysielf lo uonientitrnft
and new diirerentes, wherein (I thank the
lAHtl) I have (leace without a chaUen^ as to
liiethiuj*'. Divisions and contend ings bare been
tiie unduing of this church first and last, but I
think more of iaie, and more shamefully than
eTer, tJiie matter being- so small (ii' wisely con-
i(idere«l; about which all this noise hath been
made.
•* J take not upon me to justify the mdutgned
ministers^ neilber will I rigidly condemn
them ; but if the separating front their mi-
niiftry, and pressintr the iiitiHer with such heal
ooil vioiericse, shall he found to be good serTice
done to Christ, I liau* read ihe scriptures
wrong ; and the sad consetjiKMices oi' it are
convincing ^fiou|('ti, if pen^de were humble
and coRvincibte. It was thi» contention which
exp^ed that prothable and most ethfying
OMSPDise of mutual prayer, and Christian oon-
fegeoce» (that 1 uiay* hay nothiiiof how it
drove from the shepherds tents) npon which
followed a sensible decay in the exercise of
Go^ihnois.
** I did devote myself to serve the Lord in
tiie gmoei of bis son ; 1 trust he hath accepted
my olfefiog'. I had some wdlinf^nesa to do
lljgn avrvice upon orcasitm, although, alas !
nydfoe of self and mlier evils, cleaved last
onto me ; yet he knows, that to edify his peo*
fe, was the principiit tJiing uext to bis glorj',
armed at.
«* I have lived, and desire to die, hopine that
tke Lurd will yet glorify his grace and crospel
in the land ; and that he hnth not bi*ou^ht ut
under the Ixind of the covenant, iniinediateW
to ea«t us off, (though we desei-ve to be cast off)
but that the chitdtcn which are yet to be created
may praise him.
*' Those ead desolating strokes are so far
fcom being a stumbling-block to nii?, that they
are rather a contirmatioD. Sure the most
pious people, and of Uie greatest nu others hke-
wise proportionibly (to tbe yoodmou of my
sule, and the dyet deserted against them, and
they cleared of the criminal process. The lords
justice general, justice clerk, and commtMEloners
of justiciary, therfor banish the said Wilham
knowletlgfc) is in Scotland of any place in the
eartli ; iiod shall we think, that the Lord
scour cfeth them in the open sight of others,
for their destruction I and not rather that he is
be^^inning his judgments at the inner hoose
and sanctuary ! And others who now may
laugh at our calamity shall not escape, if
judgmeut begin at the ilouse of God, 1 Peter
iv, 17.
**^ I desire to hope the Lord will bnng his
third part through the fire, and will retint;
them as i^ilver is relined, and try them as gold
la tried j and God shall say of them, it is my
people, aud they shall say, The Lord is my
God. Zcch. xiii. 9.
*^ I own the king^s authority, since he hath
it not only by God's providence, but by the
consent of the estates of the land, tvho have
determined, that he ia the Uwfnl successor*
And it is a question, if he be worise than those
whom the proi>hets have bren subject unto
under the old t&ktament, and those to whom
the Apf^stle commatjds subjection under the
New. And if the distinction betwixt the so-
thority itself, and the exercise thereof, were
rightly understood, I think there should be
less poor meo*a blood spilt, Bn4 less rejiroach
cast upon relii;i«Tn,
*' 1 thank the Ijord, I have no prejudice
against any man living to the utmost of my
knowleilge'; but do mo«t heartily forgive every
man, as 1 desire to be forgiven of God mysplt.J
^' 1 resent and acknowledge my weak^
ness, in being a witness against M:^veral worthy
persons, both present am) Mh«ent, a worse de
than Satins consenting to the death of Stephen |i
though, 1 think, I had no eye to my owni
safety, far le?^ an ill will at liie persons, al||
vhoni T highly honour, and of all whom i'f
heartily tntreat forv^ivcness.
*>* 1 desire to give a farewell to the world^
and all the enjoyments thereof, and to m^ dc«
relations, deur Loth in the flesh, and lu th^
Lurd, in the firm hope of the eternal fruition (
God, tether, Hon, and Holy Ghost, whom I
desire to choose for my portion, and throngli
my Saviour Jesus Chri:it, whom 1 have de-
signed in some weak tneasure to serve ]
whom I comin It myself as lo a laithfu) Creato
and Saviour* Thomas Archer.
'^ This solid and judicious testimony needs no
commendtitioD fjoni uie. I only add, that
Mr. Archer was so very weak that day he was
executed, that he behoved to becanietl to the
(caffold in a chair, and in all probability a few
hours woul'1 have carritrd him to heaven though
he bad bcM^n spareif. When couiiug out *of
prison, he said, 1 bless my God, 1 have now oo
more to do but to die.
** f^'ben niwn the scaffold, be prayed first,
aad then read Uaifth 65, fttid next spoke to this
907]
1 JAMES IL Proceedings a^it liomai Ahekgr^ Sfc [90S
Cunninsrhfime, Jdbn Moirbead, and William
J^ksoii to the plantations io America, never to
return without licence from fab majesh^, lords
of |>riFy conncill, or justibiary, nnder the paine
of death, and ordaines them to be ddyvered to
purpose as far as could be gathered. * There
* is ^reat confluence of people here, and I hope
*■ tliere are many who desire to be edified by
* this kind of death, and I wish there were
' more. By reason of my weakness and siek«
* nessi yon cannot expect a loner discourse, nor
' «tith such utterance as this auditory requires.
< As to the gmunds whereupon my sufferingfsat
^this time are stated, I need not enlar^,
* they are well known ; I shall only say this,
*• as my desi^ was upright, so were my mo-
* ti?c8 m cummgf to Scotland in such a time and
^ manner : they may call it insurrection and
* rebellion, but the Lord knows there was no
* sndli thinff . My uiotircs were the great ap-
* prehensions I had oi* Popery, and my rei^ard
* to the kingdom and interests of Cbnst here,
* and I wisli every one were concerned with the
* evil and hazard of Popery.'
'* Here the Bailie interrupted him ; where-
mftm he added, ' I shall only refer you to Re-
* Telations, xiv. 9, 10, 11, and said to the
* Bailie, you cannot deny Imt Popery is ha-
^ sardous ; who answered. It is true, out there
' is no lear of it here, blessed be God. Mr.
« Archer said, I wish to God it be so, and then
* continued his discourse.
* What I have further to say is, that as
< Cbi4st hatb- a kingdom, wherein and over
* which he reigneth as king, so he will suffer
* uoae to usurp that power, which is his own
^ prero;;alive, and which he will not gi?^ to
* another, to constitute and appoint officers
* cntitmry to his institution.' Wnen going on
U|»on this subject, the bailie interrupted him
again, raying, Sir, if you bold not off your
princi[iles*and reflections, I will cau^ beat the
drums. !VIr. Archer went on. ' Well then, I
« hope none of you who are the people of God,
* need stumble at our fall, as if Go<l would let
* the work rest at us, for he has other means,
* ways, and instruments nor us to make use of ;
* for it may be well known to you from scrip-
* lure, that the people of God have got many
* backsets one after another, but the Lord has
< waited for their extremity, which he will
< make his opportunity ; and for this, take no-
master George Soot, oFPRlodiie * Io be tms.
ported thither upon bis enactiiig- binwlf, tbit
they shall not retorn without IkBDoe as aul ii
undTer'the name of ane thoimiid merkitlie
piece, and the said Mr. Geor|*e Seolt being per-
soiialKe present, he came judiciallie etaeuAj
bound, and oMeidged to the efled, and inider
the paines above spedfit — Sic Smbteribiiur,
Wm. CummiGnaM, John MrnvBUD.
Wm. JicRsoNy Oborob Srorr.
LnfUTBooir, I. P. D.
< ticc of Mk»h iv. 10. I will briiljg them la Bi-
< bylon, and there will I ddiycr tbem., fk 1
< pray and intreat you all to bo eonocrMd ftr
* your souls interest; as for my owa part, 1
* know ] hare no more to do as to that. Fev
< of death does not fright or trouhle me, I Uw
< the Lord for my lot?
*' Then he |n«yed again, und tfang the 73^
Psalm, ver. 24. to the ead« and died widi gnu
cheerfulness and joy. In him the church sf
Scotland lost a burning ami ahinioK lifhtv wbt
miglit have been long an uaefol muiiatfrrf
Christ, one who knew him well, aasurat mt,
for solklity and leammg he was goalSedii
be a professor of Dirinitj in mny cJohrertilj.
He was about thirty two years of ageatH
death."
* It appears from 9 Wodrow 9, 307, llil
this Geoige Soot, kird of Fitlocfaie, had ia tie
year 1677, given bond and caution under toi
thousalkid marks to <$onfine himself to his ovi
landaandnottokeepcohvantidea : thatftrlv
hiving contravened this the council, m dteyar
1679, ordained hia cautioders to pay thne tkn-
sand mariu, and returned him to his oonfiar-
ment: that he was afterwards impfisoned ia
the Bass, and in 1684, liberated firom thaee
upon promise to go to to the plantations. He
and bis wife, together witli many of the Irui-
ports, died in this same year (I6859) at sea as
the passage to New Jersey. It appeanthr
several persons sentenced to trannoiialiat,
were given to Robert Barclay, of Un, hntU
Scot of Pitlochie had the greatest maakr.
See Wodrow, book 3, chap. 9. The pufliib-
meilt of transportation itieems to haVe baea il-
legally introduced into Scotland, m the jmr
1667, upon occasion of the rising at Pfentnadt
see 4 Laing's HisU 47, 48, edition of 1804, nf
Mackenzie as quoted by bdm. Me aho 1 lffli>
row, 375.
PfiOC^cdings agaiusi the GaUotutu^ Mm*
A.B. 166(2.
S49. Proceedings against several Persons of Galloway,* for Treason ; ,
34 CHAEtEs II. A* D. J 682* [Now first printed from lh«
Records of Justiciary at Edinburgh,]
CtitUA JtJSTTcuRiJi, S. D. N, RegU tentam
IVictorio Burgl tie Edinburgh, unJeciam
die meMiiiik Decembris, 1G82, per nobjlera
et putentein Comitein Jacob um Comi-
tem de Perilit Justiciftnum .GeacraleiHt
et lionorttbiles Tiros Robertum Dommiini
de NfttrQe, DoidIdos Jacoburo FuuUk tie
Colli iigtoune, Daridem Balfour de Forret,
Hotfentm Hog de Harcaras ct Alejcanitrum
Sctun de Priinedtleu, Commi&sioujinos
Jufticiarite dicti 8« 0. N. Regis.
Cam l^tliQie affirmatn.
TnE said dmy inefit our foremigne lord's
crixniuftl tetUsra of ireason, nus«df uicd, and'
* Of thiB proceeding and those against
JMnes RoWrt«()n, WilTiaui Cochnm, iobn
Finlay and Alexatidcr flume, wbicb c^ccurred
IQ the same year, Wodi'o\^ writes as follons :
** Xuteitilier 14* thecouniiet apjicnnt the ad-
9neate ti) pmsecnte ertiuitiatlj* about thirty
persona, i«CM»tly Galloway ^fentteinen. Ac-
cordin^ly in the Justiciary liecords Decembei*
11. 1 find procesji king^s adrocate contra
CjaUowiiy rebels. Criminal letti-rt had lieen
raised a^nsl tbem for being at BothwF),
vhei*e I know scveraj, and probably mosit of
th«*m were not. That day tiie ^foeate pro-
diieea a commission to pursue the folio H'tn^
fiersona befove the iustice court, Uay of
Arriotand, Alexander Hunter of Colqubaaaen,
Andrew MartjQ of Little Ellie^, James Welsh
of Little Clowdon, M'eullocb of Bar-
hotm, ■ ^ ^ Gordon second son to the deceast
Udrd of Holm, Mr Samuel A mot late minister
at Too^land, Mr. Thomas Warner late mini*-
ier at HalmacleUaaf Hahday of Nay-
field, William Thoinfott younger ot Moncraigf
Kennedy younger of Knock-iullonie,
Macnauglit younjr^^r of Overtoaa^ Tho*
i Crichtotin of Hole of rialwhafisie, -
Brown smith and heritor of New lot* n, 8e-
oUieni had been orderiid to be prosecuted
[the council f but ititerest bad been made for
and these only I find in this day's
|irtioes«,
" Those persons bein^ eited to tliia day, dkl
not compear to answer »- piic* of rising
inland bcin|; at nalh^t , harbouring,
f^ Hiding and aiiiiiMm;^ relK'l« : The
rs of Justiciary adjudge the haill
Di named, to be our sorereign lord's
t\m^ to bo put to the horn, and iheir mo%e-
\ goods and gear to be brought in to the
I'a use, they being oatlawf, ami fagitiTei
ntbelaw,
«* U aeeoifl ihia sentence wi« foniid too sof^;
execute at the instance of sir Geoit^ Mae-
kenxie, of Rosehaugh, his ntajesty^A Adioeai i
for bis higbnes interest, against Hay, ^f ]
Ariel lane, Patrick Ferjru*550ne, of l>owaftoirrT, ;
William AI'Kie, of Diumbtiwie, Aleirandtrf
Hunter, of CulquhasseoT Andrew Martkie, of J
Litle Aries, William Welsh, of Heart} J''imet ]
Welsli, of Litle Cloudan, Huyrh Maxwell, olP ,
Cuil, Henry M'Cullochy of Barholme, —^ j
Gordon, second son to the tieeeist laird oC .
Holme, Mr. Samuel Amot, late minisU'^r at ^
Tonglanfl, William I^Iartyne, younger, of Dul«- '
lurge, Mr. Thomas Vernor, late mitiister at \
Bahnaeleltan, Fullerloun, of Senick or
Nelhermilne, M*€lellan, of Auchinguill^
Alexander Catmes, nottar, at Glenlie, —
and therefore, December 18, 1 find many of J
the same persons and othets are proccaiedyl
upon treaM)n, Uiat their heritable estates might
, fall into the manasrers hands. For tiirni^K sak* •
the depr^sitions of sotne witnesses ^re taken ^ |
and some of them were seen in arms in differ-
eut places of the country before the rising a^ ^
Bothwd* The witnesses depone they sav^
otlitus of them at Hamtlioua-muir; vet it i»
but few that were seen there. The as^'ze brin^
them in guilty, and the Lords of Jutiticiary,
^ considering the verdict of Uie assize returned j
*' against the deceast 8amuel Qrierson of Dal - ]
* gonar, William Grierson of Kolchqahcr,.
' James Welsh of Little Clowdon, Jolan Brown '
•heritor in Newtoun, Henry fi ot
* Boroholm, Hnliday of , Mr*
* Thomaa Warner sometime mim-icr at BaU
< macleJIan, George Qnrdoit seonnd son to lli#
* laird of Holm, Alexander M ^Naught youngee
* of Orertoun« Anihony M^kie of Olencard^
* Mr. Samuel Arnat late minister at Tongland^
* James Oichloun of Hole of Halquhussic,
*' —" -^— Hay ol' Arrioland, Alexander Hutlte^
* of Oolqabassen, Andrevr Martin of Littl*
' Kllies, Alexander M*kic of Drumbuy, anife
* -"^ Fnllarton of 8cnnick, whereby tlie^ j
* were found guilty of treason and rebellion^ i
^ The said lords theretbre adjudge the Bai4 '
* Alexander M*kie of Drumbuy, and Anthony \
* M^kie of Gieucard, prbiouens, to be executed i
' at the cross of Edinburgh, the first Wednes- 1
* day of July next ; and the rest, except Grier*
* SOP of Dalgonar deceast, to he tsxecuteil to^ |
■ death, demeaned as traitsrs, and uiMler th« i
* liaina of trea9c»a when apprelieoded, at th#
* places and tiroes the lords shall apiminl. And i
< ap[M>int thair names, fame and menKiry to hr I
' exUnd/ Ho weter, sorereign pfo?i<lenGeap- "
painted otherwise, and J think none of tht m
were executed. !
4« Vpon tha iBDie 11th «!' Dscsmbti I Hfi#]
91 1] S* CHARLES 11. Proctedings againH ihe GaUomoy Men, [m
Milne, ofKeumuirc, Antbonv M'Kie, of CIod-
cant, William M*Co!lo<!k, ot*^ CJcichreitl,
tiiliiti^y, uP >layAe1d, William ThtjtftsoDe, por-
Q(iblonet|>ic,
Rpoekallen, John M*N«irglii, dder.
4er» oTOv**
tonne, Alexander M^^Nvi^glfly 2||^<lJ|ptr'^flvtf,
[lioner, of MuDecraige, Liring^toun, of Fttr^usoo, of Caifocli, Tlioiiias Ciiki-
* usiirpatioD apon Ibe prtTileges of tlj*- fhwrt
* of Gott, luitl the prerog«tf>es or '
■ aad hh beihg made absalatel% :
* ecclesiastical matterB, from niLiCli Iti si to
* cotHidered by persons at borne, aod loiiHi
* abroad. As to ttie archbisbop^s dfsilt he tt-
* swera, he is uot a jtidf^ to cog'oo^iee npoo it,
* aod refuses to aosi^er othcrwive : And hthf
* dc^irrtl to say God sate the kii>i;, he aoiwtfi.,
* he is oot in compasure fo'- ^y^^h an ^rut^
* adding, prayer onj^hl to W
* liberatjoti.* When what js . ^ti
confesseth it h as he said, bat refuse* to oA-
scribe, and the lonis s^it^n The confesanon^
*• His answers is ^n in theClooiIff
Witnesses^ as ho t < : vtl tbeai»andcM
tatn some thlnfrs, ^hid*, it seems, the drti«<
Ihe comrnttiee did uot think worthy the westD^
dowQ, When the presideut of the comifiilM*
asked him, Is the kio!^ your lik%«fii( prtocv^Tt*.
or not ? He answered, * Since you makt j*q
*■ qrieslions and my sitiswers mattrr iif Itie <f
^ deaih, it were reasonable to ^'tre lOBttiBf m
*■ think upon what I %tLy ; bnt nincr I am pQi**
* it, 1 answer, as he is a terror to evil thm,
*■ and a prais« to them that dd well, be ia, orli^
* Ifi nut.' He was mlerroo ijo, if 1,^ wain
Bothwel bridge; and >> ccefl
that an act of rebellion ^^ . < Inif
witness of it, and so make tt ci < i
me* Then Jm was ordered to j> i
upon oath from that, and he stioiUd U^iibcrtte^
^another process, which took more effect, before
Uie Criminal Conrt, against James Robertson
[ f rdmary residenter in the parish of 8tonehonse,
Wiltiam Cochran in CarD^hilf, and John Fta*
[lay in thf pariah of Kilmarnock. I shall give
Ltome account of these three sufiererH unto
rdeatb from the Justiciary Registers, and some
r other papers before me.
I '* James Robertson waa a merchant in Stone*
I louse in the shire of Lanerk. This serious
I and religious person used to travel up and down
' the country with a pack ; and in October this
£ear, wheu in the town of Kilmarnock about
LB business^ he went in to see a prisoner there
^of his acuuaintancc, and when with him, with*
•ut the l€ast ofleuce or [jrorocation, he was
■eixed and carried to the g^uard- house ; his
I'^ack and hta goods were taken from him, and
Tlierer restored, and himself kept close prisoner
I in the piard house ten or twelve diys.
) * *Uurinw this time he w as brooijbt before major
, IV bite, who would have him give his oaih mptr
f inquirxndU, which the prisoner ahsotntcly re-
fu«eit to do, u hereupon he was very barbarously
ttsed. My accounts bear that the major hinr-
tclf pulled him by the nose4 and wrung it
about, till be gushed out in blood. After this
treatment he was sent to prison, and when
h there, whilst he and his fellow prisoners otfered
MO worship God togetlier, the captain of ilie
[l^uard getting notice, came in with great rage,
Tand pulling the bible out of James Hobercson's
band, swore blocHlily he would burn it if he of-
kiered to go about ttiat work again.
[ ** In a tew weeks he was carried into Edin-
burgh under a guard. At Linlithgow he was
I pressed to drink the king^s health, which he re-
r fusing, the soldiers treated him ?ery rudely,
mnd tied his head and feet together with cords,
and left liim in that |H)Sture upoo the cold earth
fall ni^ht. To morrow, when on horseback,
I tbey tied his feet together very hard under the
J borse^s belly, and in that posture carricti him
[kilo Edinburgh. There he was several times
[aiamtned by the Conimittee for public affairs,
I and his interrogatories beiug very ensnaring,
[ and his answers pretty cautious and pointed for
kooe of his education, I bare inserted his exa-
ImiDation as it wa** brought as the only efi-
[ deuce they had against him.
I *♦ * James Robertson being interrogate, whe-
I • tlier or not it was lawful for ihei^e at Peotlaod
I • end Bothwtl, to rise in anus against the king :
M He anvwered, that it was lawj'ul, as thev rose
I' in their own defence, an<l that of thf* gospel,
Y *ttd this, says he, is acknowledged by the
I* confession of faith, whereupon the testitsdf
M is fomideil, which owns ii hiwtul to resist ly-
I'ranny, Ami being ssketl if the king l»e" a
I* tyrant. Uc aiifiwers, he desire* that the
Y obUgHtions in his ooronutton oath* and his
If present pra«tict may be cowiderrd, and his
iipo
He answered, I will say no more upon liiit
point. When 1 told some of yua ibe irvtk
upon that head, I was not believed, tlat 4
them said. Now 1 will try you if you bet I
of part), jesting him, there wi^^t mt act of f
hiiment standing w!'
was made, declaim %
which all the P-^- -1
The prl^uet i ' a*
ed« since the cj. ._. v i, :,:. ^^ ,^. _■??►
wise, was owned t and dessirci Uie act in^
be read, for he knew it not; but tt was pA
produced. At the close the preaiilafit wA^
Now after all, as a test of your loyalty, wA
you suy God save the king ? lie iitiswere4 ••
abo%e; whereupon one of iliem r^!w»f>, WfttU
you ask a hlcs^'ing to your tii' TT, AASwir*
ed, If you were present you -ow, ^
the cjise dilTera, Anoiht- r ^t n. ', ■ m:^ Tbi^
principles of yours wiil ("iiiirn I v. virj. JtAvr*
calmly answered, If I be alimdvLtl ui IJod, ibr
less matter though men condemn roe.
** These examinr'"'*'^ rti ^^«•« nftici
liminaries to an < *\
klicslk It >■_•'. tl.i'Jitlli" ITiAl'irtml
llg.
land . ' " .. ", titf tba
ktug'^ aalhotityi which, lueauwliilc^ badaiovt
A. D- 1682, [914
louit, of Hollf of EaIUvliiis»iif, ntul llrou n<» constnnt prsctique of this kiu^dornet ihe r) cmtr
"^ mvUli aid l»eriltjr, of Newtouoe, makerind of ina rnajt*«tiu\t suljjects, or an)- mimhcr tA
pumtiontf. That ivh«.T, noi^withxtuailin!; hi' the Ihcuii the jnytiiug ami u^cmbltng togrthrr in
comiuiiu h^tf liiwes, acts of {mrliniuciit, aniJ unues witli«iut and coutrain: tu Lis m&J4;i.Ue^f
do ; Utit Ihe ftTiftl malt€r they took Kis life i\ir,
"htmgh iUry cnuhl hure no |irtjbLitinu for tt«
I a surmise they hinl lhi\l James f' "' -" "
tras ihe uer?:"n wlio affixetl u | i
p.*'..M-i lUe ie*t upcm tlic dmnli . . .
?- , contBiaing s^Tenil (YUiDled rtasoDM
jiniiieii hhii MtJ
** John Finlay was a i'
Ili>UTtsoti*s,'aijd, . if J i
* "li wuK the occasion ol lii.> .
liara CVchran lived in lh».
1, in i!h> f-nsb of Evnt, ..,.,.
'•iH! loft behind
^ si's, lliai tlu-
Clond of Witnesses upon wiiich he n reived lii>
ii) wn«i next imUcied i lor refuniug to say G%h\ siivc il
him
t, wan
Some-
itiiii^li upon Iho kiiiKe heuds: flis answers to j wh^l halli hreii ^lid of thi^i iihwr, utul il may
'* " ' ^--1- r^ .1. '.^ .. -— not hi! Out of the road to drop a word further
heru upon it, tilnce ibis wan put lt» all tiiei«
three.
** Tlus and the like seeming oondc^c^nsion*
arc nrtA,'^htif3 itisiKted nnon, tu some of ihe
' ' u ^*hk'h dett-nd llif rdgn I nm now
ft and it i» isiud whh a lost deal of
the iiitcrixj^atorirs hrfort' tfie roniuilttfc, ivtrc
nil the pntnt' ihey h;iii a*^'rtiri»t him, and are in
^liovt, ' \V illiiiuj Cochran being' intcnogatPi
* if it tio tav^tnl for siilijecls to rise in arms
• a^uaofit the kiojT* rtfiiHt-** to answer. iJcfn^
!i:-th(T tht,^ kin^ he 1a\%fu] kint::,
are kiltie questions^^ and will
»hemjH*in^u prisoner. Belti^
^deVii * iod fuite tlie Llni;, refusi^s la tlieir livo^ upon the Wsy tint
'say .i..j .. . ^^ Ciin write, but refuses to pray inj^ for th« kin;^^ and ihir^
^ sti^M ht» flo^'^uiis. I nificd att an iiistancc of ih
'' John Finhiy was thelafit ofthetliree, and period. This plain honest c
hehi muiU Oft the reserve likewise. * Ikln^ • very distinct answer to this,
that those persorisi ;
' \\ hen
hud
aon of
tnai^-
f this
I was
J^ iaienro|raU% whether it be lawful to rise iti * I'id sny God nave the king, f cotild not com-
rnm au;;nnht tlie kini;, refut»es to ansvicr, i ' ply with thi.*j, v^hen they had &ct him tip as
^tli?ii^ hciiHf kittle queslion.s and he a |>oor | * an idol in the IVlediator^s room, without being
* nrisoner. Rctusies to suv God save the km^^ * H^'^hy of saying" Amen to all Ibey had done
,' out «ay» he hi*eH ehi'. tinjf q.% well a& any ' * - * - ' ' ' ' *-..-...
I|M?rT*fm* i * I at Drum-
clog:, hut ^ d» if be
onver^ed who ,>ir iitnnun ^^ jn^^d within
bese two years, rcftj^es to answer otherwise,
[|ban that a man h neither by the law of God
nor man, bound to haw a hand in shedding
liL£i own blood fleclares he cannot write.*
*^* All the three own judicially httore the Cri-
minal eonrt, that these were the answers they
Ifave betore Uic eoumiittee of council. And
two sohhers are adduced as witnesses agfainst
ihem, who defkone that the two last took tbrir
Arena from thcui, und leA them bound in Uie
* against the ehurcli and people of Go«J, the
* true subjeciA of the kingdom, and the fuu-
* diiment;jiJ laws thereof; ni.ither could I bid
* hrm fjod speed, lest I should be partaker of
* his evil deeds : yc^^ adds he, they soid be*
t fore our face he was king over all persons,
i and in all causes, \vhich isi a putting him in
* God's room ; thrv i^hhIi
* (ihey inid) diumn
i uivios;^int0 the lb<
♦* Those were the
us country peop^t
d me because I
rv, which was a
-y heart/
of the poor s^'
cred, and whca
UttftMn, thout^h lite rentier nnay see their an
•wers are mo&l!^
l4*nce them to bi
on r ; ' ■ ' '
urt aen-
market,
II III I ft( Amber.
sentence w^n qc-
' -ncs Robertson
', he wai in-
,'- ^IliilnS.. :itu\
oflered to speak u])on
(ei-junliMJ liv llir^ Mi^
ladder^ in a iiio'it hurb»rous umtin^r.
•bominnble rudcneM to a dyini^ mun, and
{patience and checrfulnet* of t\\h u^ood ni
•MAVHntf nil thi?«i t kftnw wn« tU*
a dtrp
thirsty rncn w
t hi* view, tliat pray injr for the kinjj
V an approbation of ail now done» it
Mda. The assijce bnng them all in guilty of I will nut appears© narrow a point upon vi^hicU
■ ' ' "' ' thevKtrnted their sufieriugs, as at the first it
:»relaii*ts represent it j es-
tlic poor couiUiy lieoplc'i
* ♦ *''J:.e blood-
Touriwgto
^o»..^. >, titnf lliey
ire them ; and prr; 1 ^i rr
• tuviTtr vMin C'OUhI i.riirf*'' tm^S
{ God save the
hat was done iti
1 hey required lUis as a tti^lifuouy
yallyj' ha we saw in Jsnies Ko!>en-
'; so this piece of rep*' v
\' b& turned o*er upon ih^ ,,
whu huil no matter of fact, no act m ms Hicni
or treason to dinrLfe many of them with, hut
them v*iT? .^
JUS, and ^^
u-.uv M.. ,. «..v^ ..j i *^- JM»Of pr,
im willing W approvn the wickeducak
^ N
Ihcoil
•m sev
•rrioui
in- - ^
Vau
.ki.
an Hi
<>f ,
of I
I'G
!vrs har« inforxiied mc.
Sl5j 3i CHARLES IL Proceedings ogainsi the Ghll&way Men^
cnmififtnd, uanrftttJ, and autbority, and the | ptmder, ball, or otfipr tnitnstfOa belhcAlt, flit
abaiting',a"55isliog', rpceptinij, intercomoDinxTi t*r ' »no5t dcfjilrkhU^, lit^rriil, ha^'uoii^, and fJnn
[ keepina: t'orrpsjMuidoiife with such rcbdis, antl
I tbc fiirnidiin^ tlieiii with meat, <lriiik» liors(^,
•' 1 come now in end itiis year \^ih ime of »he
< most flaming ittstanct's of the ri^ur M' llits.
pencwl, in the execution of tjmt eXi^ellcnt and
worthy ^•^cntleman Ale^^ander Hiime of Hume
towartl the close of this year. This ffood man
had been ai»|»rehendeijf and in his talc incf sore
wounded, by a brother of the earl of llume,
atid was brought in prisoner to Edinburj^h.
*rhc ground of his sentence was only converse
with some of the party who look tlie castle of
Hawick, in the year 1679, and every hotly
o^netl thet the probation of thnt ^rnall crime
wa8 not clear, and ibe verdict of the as-^ize was
evidently different from the oathi of the wit-
nesses. Yea^ he waa at his first trial assoited,
and the diet plainly deserted, his innocence ap*
pcarwl BO plain to the criminal court : Dut af-
terwards ft new process was lief^un; when these
people who thireted after his hhwd, and resoW-
ed to bare his estate, had got some more pre-
texts a^'atnst him, I ahaJl gire an abstntctof
liis process from the register*.
** November 15. Alexnnder Hume portioner
ef Hume, prisoner, is indicteil hellire tbejus-
tice court. Because indiclmeDts aie so im-
Tnerous now% and it would take up much ro<*m
to insert the whole of tliern, and they all run
much in llie same strain, excepting^ some few
lew particulars in the applicaiiou to parti-
cular persons, I do not insert tlicm, but ob-
terf e here, that Uiey generally begin %f itb a
large enunierati(>n of the laws they aUed«-ed
^ere broken, as act 5, sess. 1 pari. 1, Jam. 1,
net 129, pari. 6, Jam* d» act 10, pari. 10, Jam,
C, act 4, pari. 16, Jam, 6, act 2, Sesa, 2, pari.
1, Char 2. And the indictment goes on with,
* Nevertheless it is of verity, thai the pannel
* hath committed, and is guilty of the same
* crimes, in so far as John Balfour of Kinloch,
* the deceased David Hackstoun of Rathntet,
* and others, having* on tlie 3rd day of May,
■ 1679, murdered his grace the late archbishop
* of Si. Andrews, they, to escape j notice, and
* in?o??e oihei-s, fled to the western shires, and
, • there joined in a desperate and avowed rebel-
« lion,* And then foltows an enumeration of
ont steps, Drumclog, the attack upon
J . Both w el -brid^, according to the dif-
f<^r^iii panneU, And though, as iu this case
before us, and manv others, the panne] was no
way concerned in win at was done either in Fife or
the west country* vet still the narrative is much
the ^ - '--'- - ' 'r ■ -•-'- • rrcuUar
to III nesses.
1, «Of
l^riki Jesty,
* wn . S^l-
«kr.!
able crymes of relrelHon. treason itad lear im- 1
jesly, and are punishable with fuTfaa1tiSffe«t |
* wick, robhinif ihcarm« therein, and mvduii|
'towards Both weU bridge.* The Lord* fW ^
several causes desert the di^t iuajJlnttr, In
short, the process was per( . an
probation appeared, and \\. i 4S|
justness and tijrhteousucss iu tiie pre;»4^4ii pf^
cedure, the gentlenmn might to have hem IK \
beratetl: But t>y ti ^ , j tint
without taking ttit ^ (m
could not do ; and so r»e couiutueti in
till Decern tx^r '20, when new oecMNM
sought a^uiusl him.
** Decern ber^O, He is again accii^ i
* dieted by the advocate, * That t » •♦»**
* he rose in rebellion, as above .
* to the house of sir Heory '^ _.
* Muckcrstoun, besieered it, and caif<_
* horse and arms ; and being' bc»U«d4»a1,4
*' armed to Kelso, Selkirk, aod Ilawrc^ of
« searched and souc^ht for horses ani afum;
*- and carried away roditia co1otxr»i dntanklpc
*' and woundeil Mr. John Purden mchaolftim
*atna. ^ Iii»iii«jesty^«fil^
* at Br ^j untJer the vm^
*■ maud ui ine nia^u i or Uois, itliil
Hbrwunl to Bothwet- bridge/ NoQe«f^
matters of fact arc at uti proven.
*' 8ir Patrick Hiune, advrK*ace for tiiedctel>
er, offers presently to prove, that lie tsmti^f
accidentally to Muckcrstoun's boiiM, (Mtf
only iu his way to hi?; own) tiavinf oiWV
witli bini but one servant \ stiil WM«fl»
lenfred by I^Inckerstoun where he vri«
t4)ld htrti he was riding home, and
he and his ?tervant went home most \n
The advocate op pones the din ' f he 1
repel the defence, and remit ta pW"l»'
ti on , w 1 1 1 * ■ vv ing tb is exc ul^iaUou , vav9(fk
moBt r*
'* Th<.' vviLiit'^ses are called, none of IhanOi
Ad idem^ and all of them most lame, TbettMBo^
as far as I c?^" -^t- - «eems tohsve b^ai'tei
There had I .n at Bewl^.bri4cr< td
Ulias Leif^rii..,,, Mt\ Btiine
with his sword m
likewise been; ar
one of tiiem, he, with hi« ftenraot, ^
Mundav «l Muckersionn's limiM*, anii i
to buy Ii is bay horw. Ho^• I1.3 m
December 21, * hiring hini > of <
j * mandinj; n pmtyot thi> 1
« sie^ng the castle of H iwx k , 1 ).,Niv«r|»^ {
* as I could notice in the d.
* witnesses, Uiere is no pr
* WhereopOTT *r- t- -rr^^r ^ ^^^^
* tbe fDsrket
luj rnrtirdllv \kt^*^^>m% w^ ..^....i^|j|
: of Rim, besicguig tUccaitkof IU- . hajil*i04»a ia vrdertopwviffli i'"'^Y»iriS
917^ Jbr High Trciisan*
lvfe» 1«ii^i« t(«retag«!i unit ts^hral of (heir
A*D. im9.
[918
■t of (be flriit
t^ ivntl tiirHty-
»
account lif fore me, I fiinl. iK;ii Inimst heing
nmiJe at irourt, under ? ' Mr»
Jluiuc's tnL'Oilaskw u . iitiiii
for a reruissioHf itactiiallv [iimctlnvvu Ut EUio-
bur^li Mjme iluyiiibelorc filii execution* aud tvttit
Iccjit u^i b}' tlieetiil of IVrtli ; and thu( un Uie
cUy of hii ex^icutmn, hii» «}K)U£e lsi%h^ Hume,
etme in the most movin&j^ mtinuer to tliu lady
I'fetih, hcif*;TD^" Bhc mii^'Itt iirltrpuife for licr
bitsband*!* lifi-^ Me hud five fiiiiail
cluidreii. The 1 >er wasso inhumiin,
|t,^t ! ^t -M nut pnitt III >f it Uti^4 though 1 huv<;
t Jht^okider the haiMi of a rt^veicnd
lii:: :. ., , , it ;ilSve, ^^h'* was well acquaiut
Witil till'. -*Tii|. M in, :.iH' [us fttiuiiv,
'* 1 c:«rirMiH>ul r» iiiirk I'tre.thtt inemanagrri
ftttiiii tintc were §*} lull of raiifet tliat not ouiy,
ms in the (brm€r itifctancei;, bv ibeir en^nariug
mminationM and qu^iious, iLey hroujj:hi poor
ignnmin country fieopte to do bvfore (hem,
H> hat they made a di^nyjui; of the kiug'tt au*
Uiority ; bm even when the king*s authority
¥t9a owoetl, and no act of rebeUion proven,
Bwrdy apiii ounrome with rebeli*, and ore-
Mooe ftt a 6c±td*ineetia|(, and that alletlKed
only and not proven^ thty vhed tliis blood of
llaa Lord's saints.
** Htn ta«t ^ords upon the scaflbUl, ire lo full
of the priiiiir-v^^ -*- .^^ of the first Christians,
Iv their iii i< hh iij^reeahle lo our own
#r»t ihree \^ mI thoius afti^r I'entbind,
Mid contain to Tti I temper and 9en»e
of the body of ^r- us in 8cotland, that
I could not' bat inhcrt tbtiii btnre.
The LAST WORDS of ALEXiNDEU
HUME, Fortiotier of Hume, wheo be
sttfffc-tt'd at the CroB# of £dinburgbj U|H}n
the 'J9th of December, I08t*,
ilet) and BretbriHi,
Tb«re t« a g^reJil <?onfluettce of ncofile here
this (in>e» and i wonlil fain nope, there
411^ Bomo atnongfiit vou thtit de%ire tu ho cdi-
iitil by the laat wurdK of a dying man, whti^h
»hatt be but few, because I do not think or
|udge in)H4>lf to qualified, to etdarjge upon
#ny xhmt* 1 bare to say, a« iieeti requires, and
,«<•' ' t enji^ct ; and moreover, the time
iS^ l»ut nhiirl* And now I am come
bere iu iuy down my hi\f atid 1 blest the
l^rd that 1 ani not to [ay it down as an evil
doer, and ulbifit i be a sinful tnant ax others
Are by nature, yet, (}irou(fh bis grace « 1 hop«
I aiit |»lttai43cl in Jesua Christ, in ivhoin I have
M^eoiplioo, ftiid recniisioa of ions, throu|(h
|n§ mood, ami «iii sepimttml from lUe genera -
tiDo of unbeheverii: Five lo\d uuly hath
mid* the (iiilVrrrici^ and happily hath or*
lifrtd it so, L" bt^i born within the
0liiif«^b, wIm tdosiied d^vii^e of tb«
GosptI bsiii htuk discofered) aod ilic
teinlhaciof lliesext fiarlinttientf atid Iburty-
nynth tut t\v. '^ ' i.nt of kin^ J^uiea llifi
Si-cond, ftod i ul fouiiy-ionitli »ct ol*
the tweli pnrli*iiMruL u. king Jame« the si^t it
of sat%'alion made effectual for couvfittng
and hiiililin^ me up in iBrrttce, and bo^i uiutf
ill me ihe hope of that t^ lory and rodeaiptioa
which 1 um now goint^ to po&9tet»».
** The ^roiuid of my Sf ulence is tlie al1ed(^-
ed conver&e 1 liad with tbut party thiil took ill
tht! cattle of IjAviJck, in the year J67^*, the
|jrobation whereof was not clear, and from
uhith Uic verdict of the as>syse did miiterially
ditfer; ft- ' * ui from tli> i s Hub-
scribed tJ- tnd the rt i diet of
the said a»o^-»»s iiic rquiiy and itir^in.^ ^«liereo4*
I leave to God and all unbiavvvd per:»on& i(^
judg^.
*^ I need not be ashamed to Itve^ (as through
his Krace 1 am not ushumed to die) and h< ra
1 dure say, it has been nty study to keep a
cnoacidice void of offence towardis God, uuti
also towards roan. The world represents ri»
as seditious and dif^oyaU but God is my witue^s^
and my own c^ioscience, of ray inniH:ency in
this matter; I am loyal, and did ever judge
obedience uuio lawful authority ^ my duly, and
the duly of all Clirit^tians, 1 ^vas never a^piinst
the kiotr's just power and ^reatuess, and this t
commend tii all Ihat hear ute tlii^ day ; but all
a Christian doth iiiuU be of faith, for what
claahetli with the command of God cannot l>e
our duty, and I wish the lord may help the
king to do bis duty to the people, and the [peo-
ple lodo their duly to the kuig,
** Jtdoth miniiiier mi fim»H jieacf and joy to
me this da v. that the Lord hath 9*ethtk luve upou
me, oneol Adam^s unworthy posterity, and hat
given me Ibe blest experietK'e of hrs gtace
working in my heart, whereby he hath inclined
me to look towards himself, and make choice
of him for my souPb everluMing^ portion. It it
the Lord Jirsus, and be alone, who is uiy rt>ck,
and the strength and stay of my &oul : all my
own righteousness 1 do utterly ranounce, uj* ii
^^rnvent too short lor nie, yea, as tilthy rayn. {
die a ProtefctHOt ^nd IVcsb) lerian lluli day ad-
hering unto the huly HLTipiuroii, and vtork of
reformation fn>m Popery aitd prebtVi f^ccurd*
io^ to the en^ugements, per^^onal or nntional,
lyuig on me ; and 1 do leave my testimony
against all steps of defection therelVom, cither
in doctrine, worship, or govern me nt» and all the
eiicroschments made upon the kingdum and
privileges of Jesus Christ, ami whatever is
against the hfe and power of godliness,
*' It was the glory ami happines* of i>ur land,
tliat the Lorii Jesus Chn^i made t hotce ul or,
to dwell in the midst of ir '• 1-- .. -. i -Mtf
the ordmanccs thereof, lii f
his pt— ►"•' Ky which ^v^ ; . . >i
of u t of all tin church*
Hul i^! how liur are wet; , %
and loplof this prwiuu!. gosjK*l aro
we 1m lily of? We have not received
tho bv9 ot God to OULC U^Ax\&Vkiat vi3eii^w<i^\\\ivv^
©J9] S4 CHARLES 11. Procccdwga against the GaOwxty Men^ JMO
18 iitatiit find onlaincd, (hat no man opponly
nor notourly rebell Rgainait the kiu^-N |ipi'sf)n
or authority, or make \i^rr against the ki:!<^^s
Hedges, or williullie recept, inantain, or doe
favour to open and manifest rebel Is, or sup.
ply or intercomon with thein, or give tljcm
for growth and progress in holiness ; in place
whereof, all manner of imiriety and naughti-
ness does abound, which 1 iear shall provoke
the holy and jealous God, to send many heary
jungments on the whole land, whereby it may
be laid utterly desolate, without an inhabitant.
It is to be feared, that these things may turn
this church into a den of idolatry, and provoke
the Moved to put a bill of final divorce into our
harlot mother*s hand. O! what cause is there
to fear, that this people, partly throurrh their
own ignorance, and partly through tlm unfaith-
fulness and delusion of their pretended teaclicni,
shall return a^ain in multitudes, into the dark-
ness and superstition of Fo|»ery, from which
the Lonl in his mercy deliveretl our fathers.
O ! that the TiOrd would give repentance to this
generation that the o\ il day miglit be prevented.
le exhorted to turn from your sins "nd make
your acquninUmce and peace with U\n\ in time,
■which is not so easy a work as many appi-c-
hend ; and who wants his own challenge for
neglii;rncc in this matter? I'oople love to
defer thi< great concernment n:itil ill>ctoo late,
unhappily preferring the pleasures of sin to the
favour of God, and all the expectation of the
saints, within or beyond lime. Was there ever
a generation wherein so many sad prognostics
of diune wnith, upon its near approach, did so
much abound amoqgst men of all ranks and ca-
pacitit^, of whom i\\\' other things were ex-
pc^cted, and I am sure, solemnly thereunto
oblitivcl, no li'ss tiian th<si! who have suffered at
tlioir hands, u|Miu tlial account? which cimnot
hut l:ii»lily nugravaic sin, heighten and hasten
iii'ln:iii?it b!-yond ordinnry, which I pray the
fionl may provcut. Hi'' knows, 1 desire not
the t\\\ (lay, I u»in!d exhort the Lord's people
to ^luiiy Miucli nearness to God, and oneness
ain'M,-- tiii'iiisoUes. that being of one mind and
one sniiit, lliey may stand fiK>t for the faith of
tl.'c «:-MS(H I, which is in sucli pal ;)able hazard
titis flav, as all \\)io have but half an eye may
stT. 1 cannot but be scnMb!c(>f the sharpness
and severity j»f my sentence, which, after strict
enfjuiry, u ill be found to be as hard measure as
any ha\e met witli before me; which seems to
How tVoin s'lnie other tiling th.in \Uiat law and
justice conlfl all«»\v. I uisli I may bo the last
tiiat may be thus driilt with ; 1 rjiustion iiot hut
if c(im;!»rte!»t time had been given, that apj:li-
catl'.Mi miiilil have been u:ad.' unto his majerJy,
liis clemcne;. wcuild not have been wanting in
this case. Xtvcrlheliss, I biess the Lynl, I
fin*! it in my heart to forgive all men, even as 1
desire to l»e forgiven, anil obtain mercy in that
day ; and if there be any at whose (io:>r my
bl<»od may more directly lie than others, I pniy
tlie I-ord forgive them ; an<l now 1 wish it may
ke wtll m'tii tbe land when I am \soue. ftly
any relieff or comfort, or aoy help, redd or
councill, under the pmine of treavone; lykeu
be the fyft act of the first sesaion of bb na-
jesticVs ffrst parliament, it is declaired, tbat it
shall l)e hye treirson to the auhjects of tlm
kingdomc, or any number of thenii more or .
conscience bears me witness, I ever studied tba
good of my country. I hope i shall be it
iosiT, that 1 have gone so voun|^ o man off tbi
stage of this world, seeing* I am to makeso hlol
an exchange, as to receive eternal life, tin
crown of glory, Ibe near and immediate fmilin
of the ble^ed Father, 8on, and Holy Gbiiit,ia
place of a short, frail, and mLserabie hie boe
ImjIow. I bless his name he waile me wiflmf
to take share witli his persecuted people, ler 1
hope 1 shall also share with them m their cat*
solations, when he shall wipe all teanfM
their eyes, and they shall sulTer no more, te
' reign with him in his kin^oin. I am afaortif
to he clothe<l upon with my Imuse from aboM^
and that city that hath foiimlef ions ; I shall as
\ no more. O desirable condition ! when, beyosi
all hazard of offending God any more, I dal
be capable both of servinflf Goif, and enjoyiif
i him more : 1 shall wander and toil no aeii^
, having reache<l that harbour of eternal rest I
now contentedly take my leave of thei
. Farewell all enjoyments, earthly
; and contentments : farewell friends and idi*
I tions, in whom 1 had much satisf iu^tion : fi»
well my dear wife and children, dear iadoi
unto me, though not so dear as Cbiiit, fir
\ whom i now willingly suffer tlie loss rf il
things, and yet am no loser; I leave tbem«
the tender mercies of Christ. Now wilt— i
blessed Father, Son, and Holy Ghost; sd*
come innumerable comfmny *of angeb, v/k
spirits of just men made perfect: w«lcuiil
j celestial city; welcome endless joy : andooVi
O Father, into thy hand I commend my ipuii»
Lord Jesus receive my soul. .
Alexander Hume.**
*M am of opinion the collectors of the Ckal
of ^Vitnesses, have done their collectioa M
service, by leaving out this testimony, if, mI
doubt not, it hath come to their liands,Mi
shewn thvmselves not a little |mrtial in leifiil
out so valuable a ]>aper, unless they areof tht
same sentiments with relation to Mr. Haae^
which they own themselves to have as to ti«
earl of Argyle, to whom thoy allow the booDV
of dying a martyr for the *prot(>stant religiM,
but iiot for the prVsbyterian establishment of it
'^ Mr. Hume, when the rope wosaboalhii
neck, and immeiliately before liis bein|^ Xwmd
over, concluded his life with singing the M
verse of the 17th Psalm. His estate wai for"
fcited, his \\'\\f^. anJ live children exposed ti
; very great hard>hip8 till the happy Revolotioi^
; but' the Lord carried them through ; and siast
I the Revolution, his eldest son enjoys, by difial
I retribution, dtuble more estate than vaaAi^
I fcited, while these who enjoyed the (
were not able to repay their i' '
091]
Jtif High Treason.
leift, iipo:i tny ^oand or pretext mrhatiomeverf
lo rys« or cont'tiitke in umies^ to muke peftci; or
urarr, or niiikc any tit»atics or Ic&trn^a wiih
ih\ -si iljern-
*» titfivrSly
By prtiext ^fiiai.. .-, ,.. ..:.v ^4 any uf ,
these things, nuder tUc paine of tred^ou ;'»nil
t>e tlie dcvinth net of tn^ fir^t *os*inn of hi«5
mnjestie'fi st^ond jtuHlament, it in stniut ant!
orduincd, Thai io tyme comein^, in all ca^es
ortre4i«i»ntih1e ryscinjc^ in armeii and ofien and
mnnifip-.t r^-^fllion n^^irt^t his majeMti^*, his
ir 'lemay, snd ought, I
ftt lie ^OCll piTVUMtf H9 I
\w rh.ill Ik- t» ihu- 1! Ik; \\\s mt\jc«tie or bis iiriry i
ctaiiueitl to |T«'r*tcw ; atid if tliey l^e rittnl sgincl
doe not upprir, oi ' TKjlwifhstaudttJ^ of
their absence, rs :;!»t lo pmcetii at.d
c»'""'''— " ' ' ']' ^;tnifir ujKin the
J \ I Vv adimit the
•w- . - ,. _. ..... ,y He, ami ujKm
thf* verdict of !hc mriu.ist, firnhnj*' ihe jwineei
III Im* (mjvcn, the iloom and upntcnce of for-
fmiltiir^ mi^lit to proceed, and be ^veu and
pmniinni^fl in the sariie manner a*« if the per-
»*v i hnd compcirctl and were present.
^ f, it is ot verities Tlmt John BnU
four, t4 Kiutoch, the dccea?it Davul Hack* !
jftotmc, of Rjihiltct, and oilier^, h^iving-^ «jkiii '
the :Jdday otl^lay, 1G79,fc»He4l and inurthfred ,
hiM ifrtice Jamef;, late archtii^hup of Si. An-
<lr '• ' ' in voire others
ii' ri shy res* and
thttr jv.-r ui A ,1, -.jKi.,* uuu 4n*j.ivi(| rebellion,
with many olht*r«, their accomphshe^s and tts»
90ci»tji, iinri ii|H>n the *i9\U iUy of the said
moiirth of May, came in n warlike and mili- I
lary jHiuster to ^he bui'^h of Ituthergleni and
there^rr prfirlatrniTig of trea^tmahte art{> and
dec^Iamtions stt the Tnsircal croce of ihes^imeu, '
ihey burnt hiy rnajcsiic*s hiweic^nnd act* of par-
laatueni, and d roamed out IwnH'yr^*^, 'ft*\i on in
eommemoration of hi^ ' m-
mtion^ and iijioti the ^ ah-
lanltcd ti panic of hi> mijp tu '. r-.ir i >, ift
nruinclog-, anti killed and inufihrrcd ssevcrulk
^f them : I '/ ' »' . ' *
and the oih'
nnd their iv,,.,.»Mwun ^i,.-..^,,,,,, ,^> ,„.
©f vvro or eight humlrctli men, n
•tid f^itrwurtne of Kirkcutiim^bt, nmrciu d up
mild down t!ii' ffiTintrev, »nd to tlic btirfjli«s of
%Vi<^oiJn ! 'Ill, Dtitnfri^, HimiU-
ttari and f>th, aie and inihtiiry, did keep
H^iiardHf ilispLiycd coiourK, tieet drumes, exer-
riccflf ilrrw ii]i ^nd uianhevl in loruieofunc
STf ' ' )<>n und o|jpr«>iM hi% ma-
J* and pcopU', r<fl>heil and
fii ^ 1 ! arraour,
»i It inn re.
^l*^_. !<,tT J' t.M- ..i ..(.,.* ., r..Mv.,4 with the
r«bf 111 there/ incAfnp^U themaelvex tog^rtber,
A-D. 1689,
randevoQ^ed, exercised and formed themselfe
in ane army, naming* captaiaes^ coininanderi|
and other ontcerSf under Uotieit liamittounehr
ther to the laird of Pre±iloun, and the btoodii
tiiuriherers o|' the late arcli'hisViop of 8t. AtiW
drews J did issue I'ortli treaiunohle decUration
and proclamations, robbed and pillaged thecoutk*^
irey and coratnitted allact-iofopeu hos^tihtVt v<o*l
lence and rebeltion, and conimned ilieriu til) th0]
2Ii\ day of June the said yt^ar ifi79 tlwit the
were defate by his majesties} lorees at Both wel(^
hriilj^e : Lykeaa the persons above com plaiue
upon did harU^ur receipt intercumon and ke
corre^jK^ndt nee with, and did aid abait and tks*
5i9t * ; open and manifest rebelU and
parll 'r. John U't-lsh, William and
Jan»t'!i NVelshes brothers to Scarr and otheri^
^nilty of the late rebellion and of the rebel lioul
in auni» 16d(i, and did furnish the rebells ^vitki
meat drink, powder, bit), horve, and arntonr^l
pjiriienlavhe the said Alt^xander Cairnes elde
did furnish and outreik A le.\ander Cairnes bh
siine and U ilsu'me w»ne to \Vil§oill
Millar at Glenlie with honrf^e and armour t^f
the said Uel>eUion 1671?, am! htus harbour
and recept them of\en Viuce. Lykeas he did tti^
stirfat advyse and inryi^e «e?eraTl persons to go
out to the said rehellion particularlie ItohortJ
GricTKon of Mi In mark. LykcMs the* said WiU
liam WeUh of 8curr did not otily furni<}h sini
ontreik WiUiam and Juoieii VVeUhefl bis bn
thers with hor»e armour and other necesiiars t<»
the forsaid kehellion hut haa al!so receipt and
I ' t ihern and others {^Lilhy therof. many
«-r throwe doetni; »her»d"or aoe or
Mv.a . w, the iibrtve mentioned^ X\w %M ■
ilay of n'^ricultnre and the oiher peraon
above ('(nit pUliud tipon iire goitty of the cry r
of treason rebellion and otheri^ ahote apeciti
and are actor* or art and part tberof. Whicli
liein^ found lie anc assy»e I bey ong^ht to f»al
punisheil wiih forfauUureof lyft-^faod and il^ of>dai|j
and other paiues and pnni5>hments above spe«J
ritit to the terror of others to commiti the lyki
herefter.
The fiaid ihy aneol oor sorerai^e Ion
critninal Ictterit of I reason raised and execute
at the instance ol* Sir Georije M'Kenxie
" * 1i hi(t UMJestics advocat for hii hig;h^
r ng^Hinst the deceant Hamuel Urier-
^ It <'i Lijfg^oour ; makein^^ mentione thte|l
xiher not withstand in"; (>e the common lawe
l:>it< v iA' t\ ,i\nn< Iriiit^vi .^lu! urtu nl r»OrliHUiei|
ijoe therof^J
I u or an^
numtierof litem, the jovmnii^ atida*^;tembhnfcf to
tfethcr in nn-ic* wiifiont and conirairlo bk
mvij* Land warrant and autJioriLie, am
the i istmg- recept I njif intercom m(ifT«i
tn>^ < r »rreH pon de nee w it h fi u cl i relieU^ I
and )f them Iml* levies of meo^ horscyl
niifoi ) , :miiii !<^ aui\ \'> ' ' » with mem"
diink fKiwdcr ball a n bellicall^l
' ' ' ' ' ' n;i\ jMiu-t, and i
on, treason J and le
tM'^i .y ^ ^ < < •'> i«f'ii^ *tcls of parliaineui &«
pun iah able wltlC iVwC^Vst^ c\ XnSj^Vs&xsA^Vss
98S] 84 CHARLES IL Proceedings againstOe OaUausay Men^ [SM
ftu^'s and escheat of their moveaUes ; and be
Ihctyi't act of the first session of bis miuesties
first purliainent, It is decUiredt ^hat it shall be
liye treason to tlie subjects of this kingdoiiH: or
any number of them more or less upon any
Ij^ruuiid or pretext whatsomcYer to rise or con-
tinue in amies, to make peace or warr, or to
luukp any treaties, or \^\ke& with forreif^e
princes or estates or amongrst themsekes with-
out his majesties s|)eciall authority and appro-
bation first iiiterponed therto. And all bis ma-
jeaities subjects are discharged u|»on any pretext
whatsomc'ver to attempt any of these things
under,the paine uf treason. And be the elcvinth
act of the iirst session of his majesties second par-
liament, it is statute and ordained that in tyme
coming in all cases of treasonable ryseing in
armes and 0|>f?n and manifest rebellion against
his majesty, liis majesties advocat for the tyme
may and uu^ht to insist against, prosecute, and
pei-sewe such persons as be shall be ordered be
his majesty, or his majesties priry council I, and
if they be cited and doe not apucir, his majesties
justices notviitbstanding of tuer absence, may
and ought to proceed and consider and give
their iuterloquitor upon the l^bell and upon the
verdict of the inqueist, finihiig the same to be
proven, the doom and sentence of forfaulture
ougtit to proceed and be given, and pronounced
in the same manner as if the pei*sons accused
had compeired and wer present. Nevertheless
it is of verity that the said deceast Samuel
Griersoue of Dalgonar, shaiken of all fear of
God, conscience and sense of duty, allegiance,
and loj alty to bis majesty his native prince and
sovereign e, has presumed to committ, and is
gulily uf the said cry mes. In sua far as John
lialfuur Af Kiiiluch ; the deceast David Hack -
ston of Itatliillet and otherK having in a most
crucll iiarburous and sacrilegious manner killed
auil iiiut'tbcred his grace James lute arch-
bibhop of iSt. Andrews niton ttie third uf May
lG7i), thev to escape justice fletl into the
Mesterne sfiyres and there joyned in a despe-
rat and avowed rebellion against his majesty
their naiive prince and soveraigne, under the
coiiiuiand of llobert llamiltoun, brother to the
laird of Prcstoun, and upon the twenty nynth
of the said moneth they came to the marcat
croce of liis majesiies burgh of Uutherglen, and
ther burnt his majesties Tawes and acts of par-
liament, and drowned out bonefyres set on in
connneinoration of his majesties happy restau-
rution, and thorei'ter kUled and wounded se-
vernlls of his majesties souldiers at Drumdog,
and being assembled to the number of seviu or
«ight thousand, they ilid assault the city of
Glasgow, and his majesties souldiers and loyal
subjects therein, marched up and doun the coun-
trey in warlick pouster, robbing quartering ui^on
and pil [ageing his majesties good leidges. And
the said tlereast Samuel Grierson and his ac-
complices and associats totlie numlier cf fyve
or six hundreth men in armes did lykewayes in
June 1679 rise in open and manifest rebellion
against his majesty within the shy res of >Viff-
tonoet Puiiiiries, ^re mmI bti^vartrie of Kirk-
cudbright, did randivous ai wvecall phecif^
ticulariie at KeirmoMe, appojnted offinn ai4
comnumders, and marchra in warlike and aU
litary pouster with drames, coioun aadlniBfa
up anu down the saids abyres, and to the n|ril
burgbes of Drumfriea ana Sanqubar, and ebr
burghs within the samen, where 4faej took Alt
quarters, Jceepd guarda, exerciaedt came in wd
out in warlike ponater with tnimpet mmi^
beating drums and displaying of CHona, ad
marched forward and joyned with the imil
rebellious army at Bothwelhridgia ; rolMid
pillaged the coontrey all alon^ aa they cw^
and being joyned with the said rebeUioaawy
the said deceast Samuel Grieraon of DakMt
continued in ouen rebellion ooounittifl^tla*
of hostihty with tliem, till they wen dctetf
Bothwellbrid^ upon the SSd day of JuaeMI
years, by doeing wherof or ane or other tfil
saids deeds the aaid deoeaat Samuel GiiaHi
of Dalgonar has commitled and inciiiiii il
crymes and pains of treaaoa, which \m
found be aneassyse he ought lobapaBiM
with foriaulture landa and gooda to the iBMrtf
others to committ the lyke bereAer.
The said day anent our aoTai <wgM liwh ■
minall letters of treaaon, raiaed and daeriid
the instance of sir George M^kensia of Bw
haugh, his majesties Advooat lor his khWe
interest, against William Griersone. of Li^
whurrie, making mention that wber atUriih
standing of the common law, lawosi adid
parliament, and constant pracdqne of UiMp
jesties kingdome, the riseingf of bis mijf^
subjects or any number of- diem by JKpkg
and assembling together in armea wilhesl m
contrary to his majesties oommand, wamsli
and authority, and the abaiting; asaistiog', »
cepting, intercommoning or keeping eani'
pondence with such rebelte, are most dsMi*
ble, horrid, haynous, and abominable djaip
of rebellion, treason, and lese maiesty, sad Wf
punishable with forfaulture of lifei lands, h»
tages, and escheat of the moveables ; «d h
the third act fuvt parliament, and threttf •:
veuth act of the second parliament, ahf
James 1. and S4 act 6 parliament, and 9uii
parliament, king James Sd, and l44 act M
12 king James 6. it is statu! and ordaissl
that no man openly nor nottoniiia rM
against the kings persone or autboriliihV
make warr against the king*a liedges^ or *i^
fully recept, mantain, or due fa%ourta oacag
manifest rebells, or recept, supply, qr n^
common with them, or give them any idhf
or comfort, or any help redd or council aahf
the paine of treason, lykeas by the 5tb actM
sei»sion of his nmjesties first pariiaDamtt ith
deciaired, that it shall be high treason It ip
subjects of this kingdome, or any nunha if
them more or less upon any ground or pNM
whatsomever, to ryse or contmtie in aiaisii W
make peace or warr, or to make any trmhiff
leagues with fbrraigne prinoea or mMa^ ^
amongst themseUes without his
speciall authoritie and appnobatMNi
poned therto, and aU hia
1
^ High Trei
A. D. 1689.
[9SS
• iii«ohargped npeu any prete^ft whutsomever, to
intt-iii|it aD y of ihesc things under the |iaiiie of
' --^;isoii, uml b« the 3 act 1 sestaoo ol* nti^ ma-
!i sta>s 'id par. it 18 statut and ordaioed, that
11! [ .MLT coming in all ca&es of treasonable
"- Mtj^ HI annes, luid open and mtuufest re-
^1 iliou ai^tnst bis majesty, his majesties Ad^
. rat for the tyme may aud oug'ht to insist
J iJQst, and prosecute such j^iersona as he shall
I - ordtfreil iie his majesty or \m privy couticill lo
persew. ADdifthey beciled and doe not appeir,
liis tnajeslic^ justices, notwithstatiding^ of thfiir
absence, may and oii«i^bt to proceed to coniiidcr
and g;ive their intcrloquitor upon the Jybell,
if ii be found relevant to admiU ihesame to the
knowledge of ane assysef and upon the verdict
of the inquest, fiujiug the same to be proven,
the doom and sentence of forfaulture, ou|fht to
proceed and be given and prouunced in the
same manner > as if the persons accused had
dwnpejre*! and were preseat, Nevertheless it is
<lf ferity that John Balfonr, of Kinloch, the de-
oeftst liavid Hackstoa« of Uaihillet, and oltiers
liavint; u|)on the 3d of May, 1679, killed and
rourthered his g^race James the late archbifihop
of 8t, Andrews, and for their securilie Imviag
fled to the western shy res, and iheu risen iu
open, avowed mid despe rat rebel lion fig^ainst his
jB^efity and htsauthorilte, under the coniniand
of IteSert Hamiltoun^ bj-olher to ihe laird of
Ph?Moun, they came in vv arelike jKWsler lo lift
tnajeftties burgh of Rutlierg-len ujjon the l^i^ah
day of tJie «iaid moncth of May 167^, and
therealler publisthiiig trea»oiiuhle declarations
mud proclamations, they burnt his majesties
la wen and acts of parliament, at the Marcat
Croce of Ibe sameu, and drowned out bonefires
oetton in commemoration of his majesty ^s bappy
reslaiiintion, and upon sabboih day thereafter
they did assaiiK, feight, anij resist a partie of
bis m&jesty^s forces at Drumclog, and killed
and murthered severatls of them, and therefter
inarched up and down the countrey in open and
warlike manner ^quartering upon and oppressing
iris majesties good subjects, and robbing and
riffleino^ their goods and horse*;, and commilt'
ting other acts of hostility and rebellion. Ttbe
Mid Wilham Grierson, of Lochwhurre, and his
aeeomplices within the shyres of Dumfries,
Wigtoune and stewartrie of Kirckuil bright, to
the number of se vine or eight hundredth did in
the moneth of June in the said year 1679,
lykewayes rise and joy ne together in armes in
avoweil rebellion against his majesty and his
iiithorit\, marched up and down the said
■hTres and slewartrie, and to the burghs aod
viliigesot ihesamen, particularly to Dumfries,
Wmlotni, Siinr|uhar and Kircudbriglitin hostile
and inililar^' pciuHter, with truiiiiiet,drarocs, and
colours dispbyed, did quarter upon and oppress
ills ntajeities loyal fiedges, and people within
ttieaame did robb and riffle their goods, houses,
liorses and armour, and marched forward in
military jiosture and jovned in rebellion with
tiieforsaids rebells at Hamlltoun-muir, when
they encamped for sevcrall dayes together,
rcudifoiued^ ejcercbed, did fonn themselves in
CDC army, did appovnt officers and commanders
over them under the said Hubert Hamiitoun.
And the saids blood io mm'derers did tssiie furth'
treasonable declarations and proclamations, did^
riffle anil pillase the countrey, and conimittedF 1
all actsof ho^ity and upen rebellion, and con*
titiued theriu lilt the 2 2d day of the said roonelb'
of June, that they wer dissipate and defiuob^^ *
his majesties forces at Both i^ el bridge. Throir#^
docing wherof or aiie or other of the saids deeds,,
the said WiUiam Grierson has committed and
incurred the cryuie«i and paines of hye rte:t«on
and rebellion, and of the .' ' " laes he lu ^
actor art and part. Which h (leaneas*-
syse he ought to be piuii&litu ^^iku Ujirfaulture
of life, land, and goods, to the terror of oilters tt*
commiu the like hereatter.
His majesties Advocat prodneed the for-
saids crimmall letters and d[ttay«fs dewlie exe-
cute againest the rebells therin contained, com<^
peired ^Villiam Glover heruuld, end the wit-
nesses insert iu hiii executiotiB, and made faittt.
upon the truth and veritie of the sameu in all
poyut^. Com pet red lykewayes Jamci Dam^
bar, lierauld, and Donald Canieioii| oiaoenirerr '
in Edtnbui^i, atul John Duncan, wryttcr there»
who were wttnesscM to bin executing tlie letters
against William Gricraon, < ' ' ' hurne, at *
the marcat croce of Ivi pnjr and
shore of Ixrith, and the fnn'i ti n.iuuj lilnvei*
and his witi^ie^ses lo the executing of the lertert
against him, at his dwelling houae and mercat
crooe, and made faith upon the truth and
veritie of thesametj.
His majesties Advocat produced a warraiid
of privy council], orderiog him to uenkowe m
process of forfaulture againest the huiil per-
sona above named, where<>f the tenor folio wes :
Edinburgh the 13th day of November ]68«<
The lords of his majesties priry councitl dot
hcrrby give order and warrand to ht*« majesties
advocat topenew, and insist in « crtmiual pro*
cess before the justices against the i^emaoft
under written, for their accession to the late
rebellion, and the other crvmes lyliclle^l,
y'tz, W illiam Welsh of Scarr, James Wekh of
Litteclowdoo, William M'Cldlan Aochingnill^
John Brown of Newtown, Henry M'Cnlloch of
Barholme, William WCulloch of Cleidireid,
Hugh Maxwell of Couill Halyday of
May field, Alexander Livingstone of Quintones-
pic, Martyne younger of Dul2urgie,
master Thomas Vemer late minister at Bal-
macMlan, George Gordoun second sone to
the deceist laird of Holme, John M^Knanght
elder of Overloun, Alexander M'Knaught
younger thereof, Fei^usone of Gar-
roch, Alexander Cairnes at Gl«n1iemilne.
Anthony M'Kie of Clowcaird, Mr. Hamuel
Arnot late minister at •Tougerland, Ken-
nedy of Rnocknalleine, Thomas Crighton
of Hoi I of Ballwhassie, Hay of Areio-
land, Patrick Fergusone younger of Dow*
altmm, Alexander Hunter of Culwhnssen,
Andrew Mart^ne of Little Arries, M*Kie
of Drumbowie, William Griersone of I^och-
wan-e, Willkm Gfiersooe brvther and nearest
9S7J 84 CHARLES II. Proceedings againa the Gattawi^ Mem^ [M
kioe to the deceist Samuell Griersone of
Dalfifooar; as also doe giro order and war-
rand to his majesties advocat to insist and ner-
•ewe in a criminaU process before the justices,
acrainst James Robertsone, William Cochran,
John Findlay, and Alexander Millar, for ther
accession to the rebellion and for beiniif acces-
•orv to the killing of one of the king's sojors,
and the other crymes libelled.
Extracicd by me,
Sic SubscriOitur. P. Menzies, CI. S. Con.
The said day Hay of Arrioland, Alexan -
der Hunter of Colrohassen, Andrew Martyne
of Litle Aries, James Welsh of Litle Clouden,
— ^ M'Culloch of Barholme, Gonlotm
second sone to the deceast Laird of Holme,
Master Samuel Amot late minister at Tongland,
Mr. Thomas Vernour late minister at Balmac-
lellan, Halyday of Mayfleld, William
Thomson younger oi Mouncraig, Kennedy
younger of Knocknallenie, H*Naught younger
of Overtoune, Thomas Crichtone of HolFof
Ballwhassie, — Brown, smith and heretor of
Newtoune, being oftymes called to have com-
peire<] before the saicis lords commissioners of
Justiciary this day and place, in the liour of
cause, to have unclerlyen the law for ther ryse-
ing and joyning in armes with seven or eight
hundcr of his accomplices within the shy res of
Wigtoune, Dumfries and Stewartrie of Kirk-
cudbright, Sanquhar and others, in hostile and
military posture, keeping guards in June 1679,
marching up and down the country and to the
burghs of Wigtoun, Dumfries, Kircudbright,
Sanquhar, and others in hostile and military
poustcr, keeping guards, displaying col lours,
Deatin;;: drums, exercising, drawmg up, march-
ing in forme of ane army, quartering upon and
oppressing his majesties loyal subjects and
tieople, robbing and riffling their goods, houses,
oorses, and armour, and marching forward und
joying in open rebellion with the rebolls at Ha-
miltoun Mure, and continucuig with them in
the samen committing all acts of hostility,
rebellion and bye treason nntill they were defate
at Bothwelbridge upon the 22d June, the said
3'ear 1679, and for harbouring, receipting, in-
tercommoning and keeping corrcs|iondence
with, aiding, abating and assisting the saids
oppen and manifest rebells and particularly Mr.
John Welsh, William and James Welshes,
brothers to Scarr and others guilty of the late
rebellion and of the rebellion in anno 1666, in
manner at len>rth mentioned in the criminaU
letters raised at his majesties advocat's instance
against them, thereanent as they \^\\o were
lawfullie cited b«^ William Glover heraiild to
to have found sufficient caution actefl in the
books of adjournull ior their appearance this
day and place, to the effect above specified, law-
full tyme of day bidden, and they nor none of
them com[>eirand. The Lords Justice Gencrall
and Commissioners of Justiciary, therefore be
the mouth of John Bainzie macer of court,
decerneil and adjudged, the liaill forenamed
ptrsoBS tod iUc aiM of tbem, to be dcnuuccd our
fovereign lords rebelli. and to be palliihi
home, and all their moreablee, g[mi, ni
gear, to be escheat at and iiibrai^lit to «v
soveraignc lords use, lor their beio^ oudMni
and fugitives frse the lawes, for ue crvoa
above specifitt which was prouunced fKoam.
IntraHf
Patrick Ferguton^ yoanger of DoweltM
Alexander M*Kie^ of Dnimbowfe
William Mnriyne^ younger of Dnllurge
Jamei Ferguionct of Csiroch
Alexander Cairnei^ at Glenlieniihie
Hugh A/axwW/, of Little Cuill
WiUiam Ar*Ctt//orA,ofCJeichreid,. '
John M'Naughfy elder of Overtoun'
Indyted and accused for the crymm^tm-
son and rebellion mentioned in their dtaf
above written.
PeruweTy Sir George Ak'Kensie of Bm*
liaugh, our soveraigne lords advoeat.
Procouraiort in defence^-^^Hr Patrick Hhm;
Sir David Thoires, Mr. Waller MngW, ft
George Diekson, Mr. Colin -M* ' ~*
Kob^ Stewart, Mr. Johne
Sir David Thoirei^ for Patrick younger fr
gusone of Dowalton, alleadgea he cnoMl h
remitted to the knowledge of an inquoi^ b-
cause be was no heretor the t^nae of the »
belhon, and took the bond appointed bs ik
indemnity, and was thereupon assoytaid tf
the circut of Aire.
His Majciiie* Advocat anawen ^ ibi
pannall Patrick Fefguaone, yoonger of Ht
waltoun, roost renunce any land he h^sish-
vonraof his majesty, else the defence iitfC
relevant It bem^ constadtly found he Ai
commissioners of justiciary. That the kb^ii
obleidged to prove no man ane heretor.
S. It is ofTcrcd to be proven that the bsimI
entered into a contract of marriage befne Ai
rebellion, by which the fayr was oUeidgsi^
dispone to him his estate, so that by tbesil
contract, he had ane action against nis (iskr.
to which action the king would liaTe right kf
the 1 brrfaulture, if the contract had net bm
fulfilled to him * namqui habet ^i^wmf ^
' rem ct rem ipsam habere vidctur,' aadkii
in lawe an heretor, who has a r^t Is kf
retag^e tho' tliat ri<j^ht be not compleiled, id
the sone bein<r thereAcr putt in ffie by hiifr-
ther, or at least marriage having foUowcd|thl
sonesrii^ht was therby established andMik
be drawen back to the date of the contradfM'
as the sone might have obleidged the ftdiv
to fulfill, so might the king as having r^ ^
the foiiaulture.
2. The sone had a right of appearaiiM ■
his person, and consequently he might foiftA
so that \\' the father doe not dispone npoa tki
estate for ane onerous cause in his own Ijf
tyme the king niijfht succeed thereto.
Sir David Tlioircu I'eplyes, 1. Tlist k« ■
content to renunce all lands and buytpi*
wherein he stood iniieft the tymftof thiit;
ses]
for High Tnmon*
hellion or any t>'m« after Um nJi^Mioo bel'otv
:4« It ks ileiiieil ihwt a pemunuU oblitdgemriii,
4P«lti w«ke A nmi} uoe bercflor, seiut? tine be-
jrtl«r Wourhwe Is not lit^^i^ni liaUt jus ad
* rem/ and alljeit the ^mniial] bad bad a per-
fonjili (lyiLHliferueiit from biii faiber as to imy
lisri of bis t(iL\((«, aud vvbii'li i^ ili-ny^d, yet
tuHvvilh»tAndias( tbereof, il m^bt
h«kve gruDtt^ s second disji^ ti tbird
|)ftrty; uttd ibe <in»t iiiteftment u{kt|i Uieufcond
4J#|>i>siU4io bad cuiTyt^ llie e»taie.
. 3. Tbat Brt>ckbard, * qui ballot jus ad rem
f i|>sam baberc vidctur/ cuti oaly l>e obtrudetJ
«^aip6t tbe (p^iUer of ibe oblfiduement, ti>
intefi» but noc Hgftinsla tbtitl |>&ii>f aud our
law i»i fto pQ6itiv«. MA fa tbat, tbat sucb
«hiie(i;rcmetiU €*iunot make a lUiiii a beretor,
aoil in ca^o til a [iers<iii Id favors of vvbom the
jr6«fjj^nauon uas anut^ and charter i^Kpni
Uiould dye bd'ur« iofeflmcot, tboking would
hskH% rig-bt to ilie feiidutl casuaUttfa upon tbe
mooowf^^ tb»t tiio i;runter dyed bereioTf and
Jeitt tnfdtt and seeing tbat tiottvilhstandjn^ ot^
#Ay 84icb abkifd^niontf tbe king would Itarc
lUMi «U leu^l casual ities by deoeasiu of lit e
gflttturt as tb^n being heritor : It cannot be
fjretendeit, \\\%\ tbe fatiter ivas denuded by ibe
wuA^ preieudfifl p(rs4>aaU obiicdg-etiujiit, or I bat
IJk pannull vra$ tiierby conBtituted ana berilor.
. jS, He is not r^putir aiie |ieritoi% ^ ho canoot
remttve tonnents^ or ubo is not liubte to answer
St Hw head courts as bcin^ lofeit, nor who is
fM^dgcd to auBwei at tbe ki^g^^ bo^t^ oor wbo
Mi •«« ioler^fit to compete n^ainst other per-
■OQ9 Lnfefl in a pmitypLe poYndin*^, &tid the
liauiiaJl woa ttaled ia nu b^ucb rt^bt, iu>r case^
and ibertbr £*f o, tbat a personal oUiedsreoifittt,
couU constitute a mttn in the case of anc he-
r*t6F,ttnd vhich u tbou^bt iintxiAaibJe h itbout
/mlnrftrtiftg tlie fuudauientalt^ of our law,
yet tJtc obk'idgeuiaat founded upon l>y my
liNid advo«ai. (it aDv*fiiich wertr, which is de-
ny ed) coi^ld imffer be sustaio^d, to enforce
pucb a «4Kiduaion, because all tttatmy krd
Ikdycic^le pneteiids is, that there waa aae
oLIttidgeiiieitt eoiuaeiraditt fiu en of tlna iiannal),
in contemplation of a 0k|rritg», to have ibl-
loiretl, and whidi marriug^ never baving lal-
lo^edf Dor taketi ciii^ct before tli^ rebrUiaii,
Il0f belbre that ibe |>ttuoi«(i u^tta ejtoiiered of
tlie MbeMton, by taketikg of tbe bond. The
jilft wMooly in Ibe terixufii of a coadiiMiiall
•Illie4gei9«fllt and tbe patioaU aotJlil net^r
pratend to ih« beuefue thereof^ before tbe
marriitjEf^ wiia ctmipkit^d and the conditioa
thereby p*?raewod, E^i^ tbat the |iajina1I, not be*
iU^ao luuob as creditor, in theobltedg'tjmeilt,
tile tycoe ot' ttie rebefliuiiy nor befoi^* Imd takiog
<»f the bood^ it catitial be |jreteadit tJaai aJiy
•ucb obliedgt'iuetil couM iatl Lo ihekisg, ra-
4. Aft tbe panniil iria no creditor, in tbe
■ud (itsraouail obUedg-emeiit belbre ilie tnarriai^e,
eo nolbtii^- aatecedeni to the marriage can al-
fect tbe said obliedgemeDt, and iu case tbe
fttonal luMl not iKsti i'u^y exonectd of tbe re<
VUL. Xi.
A. D. I68f. [930
bellioD before Ibti marriay:^! tieiiher would
tbe father hare made tbe oblicd^emetil
ertectual, nrithi^ would the friends of tbe
woman bad accepted of tbe panimll for her <
husbuiui, and t^etin^* if ibe mnxriage bml noC
followed, tbe pamnaU could have pretended
no ri^ht to the obt led pff neat, and that befbMi i
tilt' Tiiritrliun. iif. ^ijii (ully clearcil before the '
I keiuirthe bond, the marriage
4> ihe treason revive, oor deprive
tbe panimb of the bencBte of bis mujestiesact ;
of indemnity', seeing there is do law decbiurioy i
marriaefe to be treason.
5. Repeats his itu^estye's ad of indemnily,
which Ls appoynted \k\ be exlendcd oud inter*
pret in the most atnpU;, fai-ourable and com*
prebenaive iiense, that can be fcir tbe persont
who irnbrace tbe lieneftte tbeiuf aij Ibe panoall
did. It is referred to tbe lurdij of justiciar v bow '
such a streach as this cane con»ist with brs ma*
jestie's royall pleasure and mclinatwnin the for-
said act, especially against thSe|MlQftil, who waf
tbeu but a 3'ouiig' boy of eerenteen lir eighteen
years of atfe, and who went only allcr the r«»
Bells to seek back b'isown horse which tbey bad *
robbed, and \vbo is kno^ven hii^eif to be of |
KDOKt loy&ll principles and education, being tbe
sone ot'^a father who was ane eminent siiEcrer
for bi^ majesty aitd bis royaH lather in dtl the
late troublev^ and could never be induced If ^
subscribe the treasonable covenant.
Hb Mnje$tici Advocut alleadges, that t lie
word hereior in the act of tudemnity ia to be '
understood not of men actually in tetV, but of <
men who had any rig^ht to land ; tia for iti«
stance, if e man Lad bought and bud a diapop
ftition fiub<^cii{)ed of J20,000 merk;) by year« \
thoiurli Qoi bifeft, would he oot fall under tbf
de^ig-nation of ane bet'etor. 2. If a man %rho
bad right by contract or diiposiUon were at the i
borne, would not ibe king have right to the <
maills and dewtics, though be war not infeiL
a. If a iBeft,liavin(^ a rtg^bt to a disposition
were forfatil^vould Dot tbe kin^ bore rii^btte
tho metUi ami dcwtiea. 4. If tbe act of par.
linmcnt eppoynliri;^ bereinrs, wadsetters and
others to be lyabje lor tije wrong done by
tbie^ea, would u^t a man who had ri^bt by
dispoail40a, lliough not laliclt, be oblie(%<ii V^
oontribiile Gonforme to the 6tb act 3d fieatien |
aod pailifimetit i chn^lr^ • li, and wold nota
mtui wbo bad a i t>e liable lo re*
pair mepice an i _ rmc to'il act
&d eesfion Ist parliameut Charles 2d ivfaie|^
appoytatibcrelore lo repair. 5. The m£Mii]iiigfj|^
the aet is, Ibftt pnor fieople shmiUl bare the
beoefiite of liie act, end were it not ridiculous
tbat a mao of 10,000 meHcs by year, thai bad
been in pocsesbion :^ y«^^r8 and not inlet t,
abeeld Doi be pantabed, and a man ot ^0 nierkU
by year strauld be pitiiidird, and us to tl»e con«
iniry ai^meiiis f' - - ^ 1 * (4^
tiu/io&MMHi mi/ itiod
y<Mwi«^ the tray ui ......... ,...^ .ur-...^ . * '^1
ni; bis in onier tj the Hilling' of casoo \
feudaU ejects, but not in order li ....- *
wbieb crpoiider persooe^ right* at well as reali
30
9312 34 CHARLES II. Proceedings against the Gattatcajf Men^ [992
Because if persons were actoaUy infeft, th«
literent escheats could not belon|( to Ibe kisf,
but to tbe respectiTe tuperion,«&nd the UfcraH
escheats of persons not infefl are deduicd to
betoDtr to the king: upon that only aoDOOpi,
that the persons denunoed are not herrtflii,
but ha?e allenarly personall oMadgmcBts. X
nulla fdttna hu/m terra is ane unoontmtitiA
principle, and it cannot be jiretcddit that a po-
Bonall obliedgment doe^ state a man in tbe pf>
ferable right of the land, and make bun pis-
rights, fbr would notamanforfauh his land tho'
he were nerer infcft. As to the instance of
heretablelionds, its verie clear, that if a person
had right to lands for securing of his money
they would fall under the act of indemnity for
the absurdity above written, and lastliedoes not
in tbe construction of our law such as have a
right to lands even be substitutions ftll under
the designations of heretors how aoooe the per-
son, institut is deail, and this were allowed men
that Yvdld not coinpleit their rights apd hold of
the king should be in a better condition, than
they who enter, and this were a way to encou-
rage all rebellion. And whereas it is precendit,
that if the father had disponed to the soue, and
both iu tbe rebellion both could not have been
forfkult as heretors. It is answered prtmotbat
the case does not meet, for the designeof pu-
nishing alt crymes is satisfied when the king
gett^ right to tbe subject roattpr, quo vi$ titulo,
which cannot be in this case where this is pro-
poned to exclude the king.
8. The king would have his choise either
to persew the father or the sone, and if the
ftUfaer or the sone had dyed during the depend -
ance, tke kii»; wold have right be vertew of
either and eould not be ezcliidit but by the
death of both. And tbe word beretor in our law
is only meant proprietor, and lie truely is pro-
prietor wbobas ane action wherby he can ex-
clude the ether, and ther is nothing more cer-
taine, hut he most be the proprietor who has the
best right, and he that has an obJeidgmeut
upon the other has the liest right and the only
right. Lykeas it cannot be'denyed that if an-
otner hafe only a trust forme to. land worth
30,000 merks by year, but that in that case if the
person who had truely the right was in the rebel-
lion wokl be forfiiult, though the trustie could
not bo forefault. For in effect he that is but a
trusty or who can he forced to denude is but
umbra propriatry aiul not proprietor, and are
not all people tho' not infeft, I vable to py cess,
*»onthlic inantainance*, outriek, Bee,
Whereas it is pretended, that the sone had
only a coiiditionall right, and the condition was
not purified befor the act of indenmity. It
is answered that whenever u condition is
purified by implement it is drawcn back ad
fuatn. causiim and the medium impedimnUum
18 not at iill in this case, for a medium impt-
dimcntum is never considered to hinder the
draweing back of the condition exce|)t wher
ther is jus pcrfectc tjuetilum, to a thiid partic
during the dependahce, which is not in this
case, and Ibis has been 100 tymesdecidit in cases
of ordinar rebellion, and |iarticu1arlic la the case
of Doctor Fraser anent Walton's escheat
Sir David TAoiret for the |iannal, duplyes
that the act of indemnity and tbrmer answers
are op|>oiied, which are noways elidit by the
mstaiices ailuced by his majesties Advocat. Be-
cause 1. It is simply den|eil tliat ane hereu-
ble obliedgment can constitute a mav ane he-
retor. 9. As to the pretence that tbe escheat of
a |ierson having a disposition bekiogH to tbe
king, the same is fsptaieri to the puaail,
prietar, seeing notwtthbtandtng theroftbedtasi-
ner by a |>osrerior right can c vacuat tbe said «-
position or oUeidgment to iateft. 4. Notwdb-
Rtanding of such personal oUicdffmcnli, tk
lyferent escheat of the granters, wSd fidi tsik
Icing and other superiors, and the aaidsoblci^
ments wold not defend there against 5. If m
disnoner had been in the rebdUon, tbe bad
wold have fallen aoder tbia paonaJa fiwfid
ture in respect the disponer reuunoed atb^
retor, and In the fie, Ergo tbe reoeaver of Ai
personall obliedgment cane never b^nf^
proprietar. 6. ouch obleidgmenta bongailf
personall, as said, is, tbey cannot make Ai
land to fall under tbe fbifaultare,lrat only|»
duce ane action to the king, in case tbe inuhI
were forfaulted. And it is admired bov it em
be pretendit that a man ia ane' berifeor 1^ wim
forfaulture there can be no real! i^|^ kn
nllcnarly a simple penonall action tm>
mitted to the king. 7. Tbe pannaJI ■ Mt ■
the case wliere Mth father
the rebellion, as ray kird advocate sMiaJ|w
ami seeing by the pannulls f brfaulture ne tw
right can accresse to the king, be is flf-
ciently secured by the act of indemDitie, as^
taking of the bond. 8. Aa it ia denyed Art
the pannall hade such a right, as niy bidi^
▼ocat founds upon, so the pannall neither vii
nor could be in possession, be vertue Hbad,
the same bein^ only conditional as said lib
and the pannall is not to tliis honr ei^cr iM
or in ix>ssession. 9. As to tbe acts of pariifr'
ment founded upon anent the rrprwaw ^
Tobbrie, repairing gteibs, ani manses, 4&
and the same are opponed being only in idi*
tion to heretors in generall, and the pansilii
no heretor. 10. It cannot be pretended, ihM
the pretended contract must be drawen hsiBkli
the date in respect the marriage is not om*
sumat, because my lord advocat fbuiub hii
majesties interest in the pannalls forftahnt
upon tbe pannalls rebellion aa being sicdiBi
impedimentvm, wherby ther was jus regi^^
situm. But the said impediment et' rSclhw.
as it did obstruct the marriage!, and iiithi<
which the pannall had net so raocb m tbi
benefite of a personall eblidgeiDent,ao theflid
rebellion was sufficiently taken off by tbe set
of indemnitie, and the pannalla taking eftbi
bond long before the marriage, and the paand
being therby cleared of tbe rebeHioo bia'fttha',
was in (lons^c^etD^raat him a
the wyfe and her fnends t» neceafthiB ftra i^
knsbaiidandaloyaU«ilg«;t ^
fi^t High Trensm*
l>rumlv>wii*, rt^nyf* tl»eJv<i«li, nor] If il iihall b**
»ji ; 1 p unci? lo the piLrificb
it J I he went ll»it)ier
t ; to (foe out to the
t> -f"- t-> ••! , 'V-*
ri . :... .. ^-...
t! V returned !
iVcqtientIv ke|Jt the kirk.
kiln Alajesticx AdvocaU oppoi]«9 Itrs Ij^heU,
benrini; that he vry» w\l\i the reMIs^ and cou^
lirsoeiMi!! ujioii several tymc« which he oilers
piMitivhc to pmrCf and lie should not at oU have
gmieto the reliclis witliout a cTommaud I'rmn an-
thohtiei plftQ the q^oin»4 Miinii^ \vitli
rehi'l^ jiad any pei ver may
prvtend Ihts.and mtj^ht pin>,ti.iiv ui>itHde»oiiii%
md yet tsiighi be privatlit? (^uircarrying on tlie
reJ>chioo.
^rn«j1er 0>lin JlPK'ft/ffefor WHliam MaHyfte
1i\V ''::-' ■-' - .^,.x.,..u.A,.^^f
ni ihHi
di . ,,.. J, ... ,.J his
tn: at Dulhji ould not
ht » it wvtr J Uic were
ifcr not rckvfini except
11 oiii iherc b arnieii,
nv tkvH or hostility^ lui
f>' "^ aJnint his (nwf«!l al-
t;v ■ ■ ■ •
r
yy Ltul hj liatidtattoutr it wluch
iU MKftct of de!»ei^iaii (x^fore the
|or(5s 111 jiisnritiry,
IVm Alajfit'rr* Adv&tnt Y^xmi^ hf» tybcU
bcaj'ing hi* rail
lytnef, ftud i jud
t P(*r>fiifK>fir'>i'CtifrNfh,
ill; • ' I ,■ .
qtlttuin
tCCCpf, 9,\^* y «
wuh r«U4K it i-
th««re \a ni'rHii «
flKyceitdi^t II iiftf-
c<ftinmun, *n , i»
Aibftif (he ryin* pkir
4c«cpnrfed ut^on, \i;
•Mr>
jper*imM iibiMcx i(
alleiuJjriHl ho kt
tualty intci I
ffOmrd to h*
not to) 1
lot^ri'd
i4rtil^t.>, ; mm; ■
coiO|f«»y With, >
w<8ceoth< I w iAv< > ^
itf the ^' loiiiifi fmity
^pttC UiUilkB pii|ilMllkllli^iiC«4*^«aipiai^;^uh
ftnjf of iHes fersotiB, us he did not ; yet it )«
offered to lie oroveo, and it is cleur by the
I V bell ilBeir, that the rebel I ion in the west
' ' : ill Q iiiotlcHedmmy, I ' ; *-
< -. iiiid ifuneiitlU, tfif s it
11 Ml ill not be res^)sted, uoti *\ i> ^i'-ur
^^\\ thai they inarctitfl up and do<»n
rebdls and coming in such a hostile tiianner, it
rouhl be nocrymeio the panciall to^rivetbiBcn
mcatf drink, or otht^rwayb keep company wiOi
thcto. If hea it wbb ooI in bis power to resist
tfaenii
A^tQ Alexander Cairn es, aJwayea denyeinf
the ifbell at aatd ts, wheraa he eonteeoed lor
sending- his &one and Wihon<^ to the late
rebel litin, be hemg already twice bon?eened
ujiOQ that aame i^und, and Ic^r the crymea
libelled, and rereptiesT of hii aone, he uas ab-
solved upon the ground that hiii sone had takiH
the bond, and do grtuit could hi- u^inW. appeir
aefainst them » and lor if! strut < pro-
duced ane act of adfourtialj : A i t >rmer
flefences are repeited, tiiat albeit lun gone bad
hein at the relielliou, yet he fras not ialet*-
comoned. It was no crymc in the father to
allow him to come back to his limine if he had
bein a stranger, much less beiiu ' - ;
Mild whercaa be isconrcsenod : i,
■ one with horse and armeB, n \s noi relevant
; a sones havtni| and miikeino^ use of the
luiui.T*'* horse and nnnes, CLinnot interr a cry me,
seeing it i^ \erle well kno^^en that many luen^s
e^iildren and ser*^ants did tiike away their
parmila* and masitr** horse und armes» and
went to the rebellion whiihcr they would or
not, &o that udIpm it cotiUI be made appetr that
the fnther trtually tent huu imt, and gave liim
huise nnil urnics, and commanded him to ^oe,
the iiinplp havir*^^ liis f«ther*5 horse cannot in*
Terra cry i i i\ and its notour-
liekiiovtr. ke the hone^teat
ix re lhf?3' could gitt»
[i he [uig'ht very well
ffi- ir--'^'" -*-^'--'-'-' "T^^'wers, tliat Feiipt!*
son* i lists tt^d a^amat
fur : _ Jituined in Uie U-
dcnonced or fu?fitives, or
' proftii, and notour rebells
* per scy HM is clear by the 14ih ad ■
t, 9i d Hm^% 6, ^liffby it i» de- f
' 1 has arejua-
e nottoui or
the tirnpass or tonN ^ty, and
1 1 w e re wry ai* s i h I rebt* i la
,:h they were not de ■
un\ lie fVjiuud ifitiltv ; ^
lor other cryniea,
' *'" nny aVrMiioii
il »t»all l>e t*iti iirtioihe at-
ieadiria »b»t»l> ofthtdyat,
I^J 54 CHARLES IL
Sir Patrick Hmme rejilveM, that wherrai hv
thwart of *' • •*
r- '' ' —
.!.. m luiiiiv
: nlmt fniJ
••"■»'«',••. »*"»!
to n?-
shmitd
be
riHre<l togiiive lor ihe rebellion,
for It
) L>€' NUfipcM^l t))tt cotmtrey pet>|v|e
|||y|i^c«l at ft iluMUDce ^i\ld know tKul thi?y
^|^tlll« reMMon, utiles by Kome [loyic act
•KmHMlAttiation ihey hail heeii tWUii-etl rebells,
Ana tf ft «hou1d be Dt1i<*nv!iyf s thtn iHien tbe
rebeilsi did come into honest mens bou»rs, iti
Itit CfHintr^y* tbe mo«tt p«ri of' ell tbfe tirentlefueti
w " ■ ' v, aBd loany otii«r r»loe«i,
t hv ly, npon tbftt gmund ; and
- •' " f>»rmerollctdgance
d by ibe act ol'
W*i , ind if the
more the
fkther who was only CMiOVfreued *« liee*«sorie
upon that h^id, aniJ oppont the tM npf^a which
the sotio was liherat upon 1ikfng> the bond, as
atfto the act wh«rby the t\\^ wrus deserted
fligttncit th« father upon the like ground.
tl'iA Mmatiti Advocat condescends upon the
notorilj« ordie pannalls recf pling rebclls, in aun
£v m they eotertaincd such as tbey knew had
bmn ill the relielliun, at lea^'t couJd nut but
know it, it licing^ o^eneriiUy field and repute in the
eountr<*y, that tT»cy were rebeUs, and yet the
pantiuls never inquired into their condition nor
'where ibey had been tlie tyme of the rebellion
but nut wifb Stan diiig^ of tbc saiit notorietie rc-
eeaved tbern and hiirljoured them, albeit they
conid not but know by a comman fame and
had neter inquyred, as gaid is.
Mr. Wattir iViwg/t for Hugh Maxwell of
Cuill atlead^ed that be cannot pa'sstothe know-
-led^e of ane inqueist l>ecause denying alwayes
the lybdl he hajs taken ihebcnefiteof hia majes-
ties mdeuinity by taking* the bond prescribed
lliereby, as hy a testificate produced under ibe
earle of Niddisdales baud, who Is informeri is
insttnuned, whereof llw* tenour follower:
I Hobert earle of Nithstiaill, lord Maxwell
iJerries EskdailJ and Cariyle and Stewart of
.Kii-kcudbn4!;l\^t, doe teslitic and declaire, that
Hu^h Miuweli ill CarRluth come Inpforc me^
and cravtttlte fninelite of hi ^ maj elites act of
rr^j^ — ="Ie, dated the Iwcntie sevinth of July
.I..1 -"' n'beihe baud for uot takio|f
inajefity, or bis autborltie,
:\v iinuM 1 Tk.i'. <' ap|>oyjitcd
kcuiibri^lit
xaririewlio
weiu at the ime rebtiiion' confornie t«> the
t«uour of the covinsdK t^rnc) imatioo, dated the
Ibuvteinof AugfusL i witness whereof
,1 hi^ve suUoribefl i iis with my band
mi Tmrri^ " u u;ty ut August \0i9.
^' ur, NrrnstDAtLL.
And for clearmjf tfatt hm m no bentor, offers
to renuRCi! wliM h«rilftf# bv fafti d
the rebel Itrto.
Ilia AIifJc$iUt Adwt^i oAbtloprfltf
iofeA.
Mr. Grtfrt9 iHtkmtf^ for H^Nicfm i
Overtoun, alWd||<ni, 4aaymif tii# Ml, hg
that artTcl<- tb«roc an^t rtt^epluy ni iMh
c^ Milt leU^ani tn nftci to ttrtt
cui ityron lyine^ pUce por liiitii^lti
repeau iht^ badi deicmc— pr^apmrni forOM
and Cairnesi anil |iftrli«ilftrltt llutt ft&MdffllBt
founded upon tbeacifif Ii>4ia»uti4s »Mll
lykewaves r^peits lor PiigiMiii mni Ctin*
U baring ticnwiii.imi tlw \yha fv^
inderoniili
am
wbr!
,ine
to U ^
am ill n Rie, with the (Misnoo Mtirirply i#
lite tbpreto, Aind« ihr dittair rdeirMl M li
UWUeil, and i ustaine^ iLio detecicr, fit, IkUtt
ptunatt w»s nei^er wiih the rdbctti^ wfi«i
ni thepi»*i*>*b m » i . ri M.ielieU, viid IbM li
went 1 1 vTwitt tbeoit aiMl*:
tuailie <« iiarfrof, and 'mm
d lately returned Louie, relevaol to ckii ii
dittay in aim iktf as cotic^ros bia
the rabelU in ibo said |iiirii>ch ol' Ci
•Hen Girlie.
Am to William Matty ne of Diillufge»
the dittay reietaut and repeUs the defdoep.
As to Jumchi Fergiiftm of Cairoebi
Catmes and M^NNUghtebler otOwerU^is%&k
the ditt»y relevont as to the re^iemact, andvH
the receptin^^ of rebel U, t^mts it reltfnallM
they rei^pt, harboured, iDtertaio€<«l, g^ta iM^
drink, lodi^eiog and tbe iyke ic» the porwMttf
belled declared traitors, or fu^tirea, oi ws»^'
rious rebells, who were hotd«ri mad ftfflto 9
have bcin in the rebellion. And &« to tbe hii
remanent dt^fenders for whom no deloioi i
proponed, tinda tbe lybell reletatit. and ww
the saraeti to passe to the kiiow1e<^ of
&H»y9e.
The Lorda having en th« lyballpir
If wed be hb Majeatien <^aiiiat ~~ '
Fer^«)ne vonagwr n< '«mfi,
defence, reply, and duj <? tbt^vriH, dMf
continue the dyet till liiv mi-ond Muttini
Pebnpary nixt, and orditiiea him to IM tui-
tion for'tii^ T— .™'*' fb^t dyrijt. Tlai Lm#
lvkewaV9 ( L'l m^mm_ Mtflk
Maxwell ol I ur M(int^,^
of ♦hiniiar^^ i
tion for hi< fj-,
Tbey afterwards g«*e lo a
their ^eritaifeti, ana ihe diet
simpUciter.
Mr. Ma/trr PringU for U'ITII^fa 7lfi|'i^^
of AncbMigiiill, aileadge,^ li>
ofler* lit ri'\\\u\cf\ Mi'A m
upon li
indemiii
Edinburgh, latb 8epletnbef, 16t9.
which day, t^** '^"'' **'*'"*tTibed hm fl
M*CleH?in, v. befltoo, i
bitnls, obleirl-. , _i,^ ij^H himaetf, *
shall not ha* etter ttkie armai Mgitoil liH MH^
Tiod
t.
•ST] Jot High IVfflfMJi*
Jtstifr nar hU inthoritie, irmi report^ l<i h'm
<Uilt of ULln ili'pui to I lie earle *ii' Nith^iJaU),
r<M a ti> Ihftt
4ll^ Hi ,»niv |»j»l, hy {Kill
Sk SubtctiUtur*
forme to bis
. of llie a7lh
i-Mmct by me
Wfui,. PATitksuBii:,
Th6 Lorik continue tbe Oy »l lill the ie^tnl
/flomlkj oi' Jtinuiiry, and oitUinoa him ta iltiil
lion,
[ WiUiftm M^Cutloch of tletchreirl, (msoner,
tlka^^^ he »« no h^rf tor^ anil Ls corttent to re*
nuuce ail hift herHajre excepting his jus maritif
And ftitsn to lake the lest.
Maritfitr of niihirtr**- all^ac^ei Ue li no Hft-
h' , afiii i* content \t
tnk tiic of bis biyAltic.
Tti« Itntii cttntiniie thir tHo pnnntiUs till Wed-
|i««dft}r nixtf HmS oirdsiineit Mftrtvn^ to tinil cau*
tion to ap[ie«r.
Th« Lorri^ (KHktintie th« df et ifpnlnat the
tiJUU remanent (in Do way rebel in, tiH thf i:;th
fnatant, hhiI untuins tlietu to lind cnulkm for
tl |.i William M^Cullochof
C" V onbin to be carry etl
b«4.K Ml ^rns >! lines the wiluesses und
Iiii9y»et> to pers^rn wnilor iho pnine
of tHTo hund;^ ..* ;..^pk<», aud oidamcii the Mit-
IiesMfS in the mcnntynie to attend upon bis
iiijiitsitrs ;id%of Mfr, that they liiay he prtniouii-
h ttt the dcfpuJem guJuuesb of
tin . ed.
Ahtamkr Cuirnctt Nutlar ut GlcuUctudoe
Jftmct Ff-f-xuintnc €i\' Ciiifiich
John M'Autight older of Orcrtounu
InJyted und acctincd for the vryrt\r^ of trea-
I tind reM^iovit menrioned in ther dittny ut
theyrcccJtnte,
Pfrwff^rr — 8ir 0^(>r^ M*Kinfi^ of I^hk?-
*i \dmrai.
«jce» u/ in dU prtcfdantc,
II »i Majciitir* Adv«>c&t bavinu* deckred. thai
lie haul tfUcammMt tbu wrtr ^ . -. .*
C4aHovvay tehi'lU provicHi^lt
•I— •■"■-- " -i" ■ --■
< ^11
f.'\v . .', f «d'
0*<Tt»nm, arc (^uiity ui ih« ^ litnl, uitd
that be would not iusJMt ;i^ m. 'i'he
lords justice j^iicrail nud rununi-HiDiien) of
jn^ltWai V tTtrrff r dc***rfri'!, rmd hr thif jirr^cnts
^ nil
t up
^;iinst ilj« ^»tt
Tlp*Ctftt. CXr (iJK
IT: ■ ' ■' ;i«T*
11; ofi>
II Jrd
I' .md
<^t ^ ... -1-.^ ^ .,,..,: ,.^., ....^.1 the
fordii admitted and ordained.
A. D. lem. [93S
Hii Unji9iu'$ Advocat decldir«t b«in««
aguinat
J.. II
J*' , ii4 ivujr, iu Newtouna
jf V !l(Kh, of Barhotitie
Ji«/i/if'«iy» ef May field
Mr, TAnrW Fefttor/bite islniftor ut Eat*
maclellan
Geor^ Gordon^ aeoood aoiilo iHt LoM 1
Holm a
Alcsatuitt M*NmtQkti ^unger, of Chrer^I
tmm
Anth<fnu iJ/*Ai>, of Clonctird
Mr. imf>ju* i At fi (.-/:.
7k(ma>. of Hole of BatblMif
Jl Hand
Aletiinder Hunit^r^ id' ColqnhaaaM
Andrtw Martt/Tic^ of Little Ariea
Alexaufhr M*Kie, of Dmrabowie
^ — FuHertoun^ oi Hotiwick.
The loid WiUiam Grieraon, brother
neafcftt of kiue to the deceast bamiKd Grieti
and Ilia tutora and cnratora, and all o|]
haying' or pretending to have icttere^l,
ilie abaent rei>eliai remittpil to the ostysc, I
of tymea called to hate comp*«ied to
Mid aeo [MOceas of Ibrfaultture • I
iloiliioed a^fnifiHt them, and n ran<l
the Loi'da iic<H>rding to the tcTi<M (>i nu. ;»rt 1
pnriiamentf did procet?«l to ci-ui>ft»U r uml tfiv^^
thrr intcrloqaiior, whertif tlte tenm* foHoweasJ
The LoriU f^nda the lybtll nlevant and reiJ
mitts the same to the knowledge of the ftssysapf
AsaiaA.
Sir John Dalmahoy
i^ii ". ■ ■ * \^ } -i
M
Ji» I , i '^orgletDilne
KlajiTr 1 'd
At ,<:'n
Sri J. _i ■ , ' ^-v J}U\A
Jidin iVluve, &f>ne to Rowallan
John iJrovrn, m^ rrlmtit
Jattien i atit
JithiA h aicichanl
A1 M^^soHP, meicbiat
J I , mt^TcKant
^Villi^tii Uiid, mcrcbgnl.
The A«syf»r Uwlulheawomoaiid ooobjactia
iii the enntrpir ; hi* niojestiei Advooat Mckn
Ik* f?dl not in«i»t n^inst Kriinedy of "
ailru iht a forfaulture at this d%*et*
the i
the i^
.lLu»ui for probation oMne
undi'r written wit]
Anthtut^ M*Kic, of Cloncard, confes*ea I
from ^i. ^ - ,*^,,.,^i..i-.: -'l.-..i, -....' , ...;-
tinutd with them ia uvueatftitiaiW <»*wi^fc. 10.
r).*!!
:9]
34 CHARLES II.
Bothwelhridg^e, and comes in will, and begs the
Lords to interce< d fur his pardon ; dtvlares he
has taken lUc test, and is wiltin{r to take it
tj^ine if the lordb |ileaMs.
Sic Subtcribitur^ Akt. M*Ric.
James Chalmers^ officer in Ne\ftoiih, aged
threttie fvvc, niarifd, pur^d and tworne, de-
pons besawe the dcceist Samuel Griersuiie,
of Dalt^onar, marching with the rebells in rank
and fFylc, with horse aud armes, such as
pistolls and sword, at Dumfries Keirmuss, and
InowB that he marched a'on;^t froui Galloway
to Dumfries ; depones he sawe William
Oriersone, of Lochauhnrr, and sawe him
ryiHng wiih the rehetls in town of Dumfiics,
and when tliey came out of it with a sw ord,
and this is the* truth as be shall answer to
God.—
Sic Subscribitur, James Chalmers.
Robert MXlrlian, of Barscobb, aged 36
Teant, married, pur(;ed and tworne, depon:. he
Li;c\v Gricrsoiic ; he knew Griersone Dalg::-
nar, and sawe him at Dumfries rydeing in a
troll p of the rebel Is, and lykewayes rydiog
with them at Cumnock with a sword drawen ;
depoiis he sawe William Griersone, of Lock-
qiihurr, at the Old Clachan of Dairy, on
Thursday efter the defate, ryddiig with a
troup of the rebel Js in armes, to the number
of fourtie horse ; efter their flight, depons he
sawe one who was designed John Brown, in
Kcwtoune, in company with the rebells at
8traven, with the rcbefls, and tvkewayes at
the Newtoune of Galloway, and that he was
called a smith to bis trade; depons be sawe
Henry M'CuIlocb, of Barholme, march and
ryde all aloii;rf«t with the rebells from Galloway
to Hothwel ])rii)<*fe, particularly at Sanquhar
and Dumfries ; (li{|K»ns be sawe Mr. Thomas
\'crnoiir, in com panic with the rebells, at
Jlainiltono and Cumnock; depons be sawe
ihiDrii^v., sone to Holme, march alongst with
the i-ebells in arms from Galloway to liotbwel
Rridofc, and that be bad boi-se and armes;
depons be sawe Alexander M'Naiigbt, younger,
of Overtuun, in com|Kuiy with the rebells at
their remlivon/.r; at Cuikbockshill, and luarcb
all alongst with tliein in amies to Hothwei-
liridj^e; drpons bo k:i.vc Mr. Samuel Arnot
niurcli all aloni^st wiili Ihe rciicJIs iVoni (ial-
loway to Hotbwi-inriJi^rc', dr|»ons be sawe
Thomas Chrhton, of IIolo of Habpihos^iie at
fflainiltoun Mniio with iW^ rrlu'lls and a ))yck
in bis band, depuns be "-aw** Hay cif Airicallaiid
with the rchi-lls l»olwi\i .ilancdlin.' and Now-
niibips rydein;^ in coiniK.'.iy w lib the rel>ells in
their inarrh to tiolhvii-!-Uri(!^e;(l4'[K)nsbeKawe
FiiMiTloniie of Sinwich iii KirUcudbright and
Ifainiltounc with tho n lu'IKin nrmcs ; and this
is the truth as he rsijuli a'.i*<wrr to (iod.
Sic. Suhs.i iiiit ur, KoH.Mt v AI *Ci.kllan .
Jttfm WuUacc, in Dalgonar, aged fourtie
years, inarriei), pur^rcil and sworue, depons be
sawe the deceist Siuuuel Griei*6one of Dalgonar
111 f ompany with the rebells in armes at the
Proceedings against the Calictsey Men^ [9i0
croce of Mecfale wood and tbcrelter wkb tkoi
in armes at Kcir Moss, defNioes he <
wreit,
Sic SubicribiiWt p£irrH, L P. D.
T.'ioniGs Corbie, messinger. a^^ed lyftie «
tburtby, mariod, pureed and awome; depon^
be sawe Grieidon of Lochqnhurr at Sangnhir
Xewmilns and towards BothweUnidge^ vy^QC
in ai-mL-s with the rebells. Depons ke mvc
John Brown, heretor, in NeutouD, rfdoif
ulongst with the rehdia from DubCmb li
Hamiltoun muire. Depons - he aawc Hcarj
5I*Culloch of Barholme rydeing with m
rebells at Sanquhar and Hamihoane
Depons he saw Mr. Thomaa Veroor in
SLoie with the rebells at Hamiitonne _
epous be sawe Mr. Samuel Amot maithd
aUons:st with the rdbeUa from Galbwaj li
Hamiltouue moire, particalaiiie at DsinbiB
and Sanquhar with them ; and Uiia ia the tirih
as he shall aaswer to God.
Sic Subscfibitur, Tao. Cobbil
Archibald WilUanuone^ in Utle DAK
aged fifty years, oiaried, purged and swani^
depones be sawe Haronel firieraon, of 0d-
gonar,in company with therebelh mannad
Cmnnock and other places as tiiej wcH
alongst. Depons he saire Grienon or Lod-
quhurr at Straren, ryOii^ in oonftpany whkdfe
rebells in armes ; and this is the tmtb as kt
shall answer to God : depona he cannot wrdL
Sic Subscribiiur^ PSKTH, I. P. D.
James Griersone^ in Craiffwestoone, ^4
twentie three years, maried, pumd aid
sworue : depons, he sawe WilUant- Grienose
of Locbquburr in coropanv with the rebelUu
Dumfries, Sanquhar, and within a myll cf
Hamiltoune, ryding in their troupes, in arms;
and this is the truth as he shall answer to Gol
Sic Subtcribitur, James GaiERsoKE.
Robert Herrics, in Castlefaime, aged tbreUie
years, maried, purgei] and aworne : depooi,
he sawe William Griersone, uf Liochqunoir,
rydinjr ^'itb the rebells, in armes, at the Milo-
toun of Orr ; and that they were ane bundreihh
horse or thereby.
Sic Subscnbitury Uobert Hesries.
Alexander Ker, in Glencairne, as;ed tweitii
fvve years, unmarried, purged and sworue:
depons, be sawe Griersone of Lochqufaurr is
eonmany with a paitic of tbo rebells, efter thdr
flei^^lit, with a sword. And this is the truth ift
be shall answer to God : de^soncs he caaiMt
wreit.
Sic Subscribitur, Ptarn, I. p. D.
James GordouTiy wreiter, in KirkcudbriglM|
aged twentie seven years, uumarried, PUrnB
anti sworne : depoues, he sawe John Uro»
hereto!*, in Newioun at Dumlries, Kauqiibar,
and all alongst to Hamiltouue, and at ila
toune. muire, in armci with the
on borsebaclE. Depones he sawe
M'CuUock, of Barholme, at
Cumnock, n armes with the n^dla.'
HcBdri
bar aai
9411
^OT Hi^h Treason^
he saw Iltinidiiy of BIjiyfieM wtlh the rebetUf
in amicjc, betwtit Diiiiifries and Ctimnt>ck.
Xh'fHM}^ li« lijiwe fitfoi'^ fitirHoii, Aoue to
fionloii of Hatm<^, «1 the water of Orr» Duin-
fhe%^ unH all alotigsi w'aU llie reWlb in Hrn^f^
tt> JlanHHimni*, L>C(»ona tie 6aue M&sier
Tli«tiH-ts V%>rTKjr at HumUtoiine wmirc, rydeiiig
Vfiih tlie rrhclls. Depoos be sane Alexanilvr
M*Na«iriit» yrtunBTPi", "*' Ovcriauue, in coin-
iidny wiih llii^ rt'bellSf io armes, betwixt Duin
frir% iiiul Ciimncick, Depons lie mwe Mr.
Biniuel Arnot in company ^vitti the rebflts &t
Cuinnockf and hetini Intn preach to them.
Dejions he sAwr Gficrsoi»e of Da^^nar rydeingf
l3kev%&ve<i'viith the rebeH« in armes: and thi»
19 lUe Inith n> he shall an»HiTto ftod.
Stc SuhrnlUur, h GoRorn,?^.
f^nbrrf ^f*AtIam^ tftdtpr io Kfrk^tidhri^ht,
ji^_ aw, married, ptn-jjed mid
pi' hf »ftwt» .farne^ Welsh, of
I.I h thereheUsat
J) Deponshe
liriAMi tjf iNtjuioiuk on horseback
cQnipauv with the rebells at Duto-
I. ' ' '^ veHuly.
tl: k wflh
tile ix M.w. ..a.. ,..., r.Mur; iiftd,
Bl the <^ lie sawe Mr. ThomaJi Ver-
notir. a:i . i, ,^e Gordouu* uotic Io Holme,
aod Mr. Htirrind Arnot, in company with the
r«Mhi, on horseback, in tirmes, and saw the
man cttl)«d liny i>f Arrieatland, at lh«.* t^ame
f^liiccs mtfj tht rebeltfl, iii ariues; and this is
ttmlriir! ' ill :insw«-r to C3«hK
Mn Cortanf t*y1or in Kjrkeudhrii^l, tge«l
tbrettytwoyeats^ marie^l, fuurgnd und %wovnc^
doftoaev, he sawe Jubn Umwu, heteior io
Dumf.
Heun ■
vi-'
1,1. ?ljl.M..,t
.1. rj.;
ds^in an
Jydaj^
bells in
99^wk- Mr, 'i"
the rdfclU, <i
before ihc fli hiic ; -
Arui»t writh tht<m, on 1
tliff Hal ' nml lii
6'**
1 we
\ at the
vveUa.
niih the It;*
Ih'ponM he
uiy ivhh
, rhcdnv
.Mr. SaliMi'
, in tinntfs
1^ tin: trtilh as he
Jolui CotlftAM.
Ca ptai nJohn Af * C«i ^'^ Jk . «kf Grn r* *_ff ,
thri'»y fij«ir }*
11' ' '
flSfed
:nd
of
. yf
un
iffte to
I ; '^it « IIIO-
Mkp hiK own hor>«innn hiiu,
deKire they let hiro aJone.
Htpoiiiv Im^ tlid iioi mn the patmail tiJl two
A, D* 16S2. [94f^
dayes Iherefter, and then b< tawc him twQ
irtylefi ejistword from the milntonue of Orr, Io
Wttrda Dumfries wriih the rtbtrlU, to the numii
ber of three or four hundred, and there he &a^v«l
the ptirinall M^kie leave them, and sawe hi*]
inaQ*ii hor«e taken from him. Depons^ he hadfl
a sword, «rbich they otiTcred to iJike from hiii^l
hilt did not, Depaofi, vihen M^kic wna at
'VViiJi'touu, he did not s^him draw up wilh thi
rebelli. And this is the Iruth, as he bball {iu#j
swer to GimI.
^k Subtcribitur^ Jn, M* Cpixocii.
Wittiam M*kie, of IMaitland, a^ed tiventy-l
mx y ears » married I pitrgfcd andsworne; de«T
pons, he «at^€ the panimll M*kieof Drumbowii
m the to\Tne of Wijftoune, the relKi'lk werdl
there, with a pistoll in his hand, wliich he sai«
he had goti from a man to hold till he shoaldl
take iL pype of tobacco, and thai he was pa
horseback. And this is the truth, as be sball^
answ er to God.
Sic SHi/tniUtur, Will, M^&ts*
Atcjtandtr M^kie in Gtasnuik, aged fouriy
three vears, married, pur;r<^d and s>vuriie ; de^
pons, lie hearrl Alexander iVI»kie of Drumbowie^l
<lisiwade Braickfey and Culveuan to |^ue out t0|
the rebellion, and sajd it was a sin full thing ig
rijse in armes against the king ; aiul thiiii h^l
heard In'm express at the Kirk of KirkeonanM
betbre they went out to the robellion. Depi»niC|l
that Drumbowie hved orderly^ sod keeped th^
Kirk before and since ihc rebellion ; and thifj
id the truth as he sliall answer to God. - De*
poos he am not wreit,
^Vc Subacrtbilur, PfiRTW^ I, P. D.
Alexaudtr Herroti at the Kirk of tCirkeow- 1
I thereby, purged a n4l
a prtccdcnte in om^A
1-^, mm LiiiUMU 1^ itflli".
Sic Sttbsi'nbitur^
PEftTB, I.RD.
The ptmnall Airjtonder M'kic of Brumbowre*!
in |iii <^< rii r uf the ix>rd^ Justice General^ ittijl
' of Justiciary* declare*, Thalj
li the want of witt, he might j
liiOf Injiii 111 the rcbelk* company, be protestti
III fore God he was tjeifr of their faction, mud*!
iue parttcniarlie he had no intention f
,nd however he thrones himself upon I
UH" kiTv,'^ ^ lid bcgVl the l>orils of J
ticiary to it h«m to his titajestje'i I
f..;. i. ^,...n^ ,,, .,,^^^ il^^y mi^ht interpose witM
^ for favour to him. And that he if
V ^ i/ iHke iheTe^t, or any other OatH]
shall lie impo eil by authoritie, as a demonsfrm* J
tion of his lo\alty.
SiC SuOscriOUur^ - • AlEX. M' Kti.
John M*UMf(Kh, itrrtTT* ^^ t«i^ Lftird ol^|
Ule, «j5e<l twenty -three, nr^fed and
fl«4oine , de(K)ni», he*iiwi- 1 ... .^e of Sen-
nick setiTuli t\me» rvdf'inir *vith the rebells \m \
arntes, lU their mart-h lo I*. itimiUirufL'-r. i>e*
[ion«, lie kiinw«*s ijotiiit- wcf^
And this is the truth, as h* • CM* \
Sic SuUcnbUur^ J^ivk ^k-V^^yw^sx^ik.
iMSJ S4 CHARLES II. Froceeduigi agdntk ike GmUoway Men, [GU
WiUiMm Gordon in WigtiMiDe, aipBd thrtftie-
mex yean, iu«rvcd, pur|^ and fvronie ; de-
pom, he sawe H«j of Arieftlland in company
witii the rebelb ou honcback, with a swoui at
the ftandin^ fitooes of Torraa, and save Alex-
aoder Hunter of Alquhawcn at the aame pUue,
on horseback, in arincs witli the rebells, and
lykewayes at Wi^touoe with tbeaa ; and sawe
Amlrew Martyne M' lide Airies at hoth the
oakls placM io company with the rebells on
horselnck, in armes. And this is tke truth as
Le shall answer to God.
Sic Subicribiturj WiLL. GORDON.
John Muraeli of Milotoune, aged thretty-
■eren years, or therhy, purged andsworiie;
depones, that George Giordon sone to Holme,
with twentie or tlirettie horse of the rebells, did
Apprehend tlie deponent in the wood of Buttell,
and that he did not know Gordon till he told
him his name, and ^leclared he was so. De-
pone, the said Cxordon tooke the deiwnent's
armes, and therefter Gonk)n and liu; army
goeinfi[ to UuUllI, the deiionentioade his escape :
and tuis is the truth as ue sliall answer to God.
Sic Suiter ib'Uur J J. Maxwell.
William Griersone, brother to Milnemark,
ng^ twenty-sevin years, or thereby, unmar-
ried, purged and swome; depons^ be sawe
Hal^'day of May field, in company with the
rebells at Cumn'ick, on horseback, in arifies,
and at sevcrall other places, and lykewayes
aawe Mr. Thomas Veniour in company with
the rebells at Cumnock, and setcrall other
ptaci*s, and heard him preach to them. De-
iicms, he sawe Gcorgfc Gordouiie, sone to
lolfue, at Cumnock, in armes \«itb the rebells.
And sawe Alexander M*Nau(fht, younger, of
Uvertoune at Cumnock and IJaniiltuuo, in
arnu's witli the reliells; and sawe Thomas
iJi-icliton, of Hole of Balhassiu iu a* oph iy
with the rebclU at Stravcn. Dcpons, hesu\^e
Hay of Ariealland, iu armes with the rfbdls at
Hamiltoune, on horseback; and tliat he sax«e
i*''ullertoune of Sennick, at 8an(|uhar with the
rebelis on horseback, with armes : and this is
the truth as he sHaU answer t4) GckI .
Sic Subtcrihilury Wiluam (iRIcf^one.
Wakvr Muir^ miller at Litle Aires, aged,
^c. nihil nurit.
JuMts Puninig iu Kissocklouac, ai^rtd fyftie
or therby, puri^ed and sworue. depons he kawe
Fidlertouiie of Sennick in ai'iues witli the re-
belU uu horxUack at Uamiltuuuc, and several
other places, and this is the truth as he shall
answer to God.
Sic SuhHcrihilur, J a. Pan UN g.
Aktander Murray^ laU." survaiit to the earle
of JNiithsduiil, a^ed fourtie, uiarryed, ptiruet!
and suoitie, doptiu!!;, he sawe James Welsh ui'
Litle Ciouden, rydiny ir(nnj[^t the l)rid:^^e of
Dumfries with tiic. rebells ou horseittirk, hut
knowes not if he had anncs ; deiioncs he cannot
wnitr, and tliis is tlic trueth as he sliall answer
toGMf.
John Imntj mcrchaad m Dnmhin, agid
I fourtie or thertry, nuurycd, parted and s«mk,
depones, he sawe JanMa W eMi of Uth CM-
< en at Dumfries, aod scvia or ^ghX aeart oi' tke
I reliells horse being CmAb^ od the depoona
grass, James AVelsb was ther hNDldiiig bn bom
with a sword aboat hioi, and tbia is tke tnxk
as he ahall answer to €Sod.
Sic Subtcribiiur, JoHii Itfm.
Alexander GordouMf in W^gtooae, sgsi
tbretty fyve or therby, marriad, wufeA ui
sworue, dcpons^ be aawe Henry M^Cntlsdi J
Barholme, ryding with horns and anns wiifc
the rebells at Dumfries, and betwixt ; and ii-
pones he sawe Thomas Crichtoun of Hofe tf
Balq«h|ftssie, neir Ainlmos>s, arith the rehelliii
their march to Bothwelibridge, and that thee
were three or four bundreth of' tha rcbdb aitk
him ; depons, be vawe Hay of Arieallaad M
Dumfries with the rebella, on borte eitka
sword, as he thinks, and march all aJoagit a
Oothwell ; depons, he aawe Alaxaadar HsaBr
of Colquhassen, on boiaeback, villi a awgaJL"
company with the rebelLs at Dumfries, and dl
alon^t in tjieir march betwisLt Dumfriss atl
Hamiboun ; depons, he sawe Blartyne ef Liib
Aries, sererall tim'» in eonpany with the i»
bells in their march to Dothwellbiidlge, ui
that he had horse and aunea ; and this is lli
trutli as he shall answer to Gad.
Sic SubteribUwr^ AiMSt. GoufO.
The Lords ordaiaes the aaayae la ipcto
and retume their vecdipt to>morropr, at Imbl
o'clock.
Decendfcr 14, 1682.
The Kiiid day, the fierBoas who paat apsaihi
assyse of the febell beretors in GsdJowi^-, tt*
turued their verdict in presence of ibt tmk
Lords, where of the teuor followes :
The assysTTS all in one roice, by the mosA
of master lilllius their chancellar, mods Ssasd
Griersone of Dalgonsr, William Orierumtif
Lorquhurr, James Welsh of Litle Cioudci.
John Brown heretor in Newtoun, llmif
IVl'CuUoch of Uarholme, . Halydif a
Alaydeld, Mr. Thomas Vernour, iieoige Gor-
don son to the laird of Holme, Alexuie
iW*Nau:^t younger of Orortoun, Anlhoor
M'Kie of Cloncard, Mr. Samuel Arnot, Tbs-
uias C'rii^htoune of Hole of Balhasvie, —
Hay of Ariealland, Alexander lluuter of Col-
qiiliWcn, Andrew Mnrlyne of Litle Aries, Fol-
lertoune of »Sennick, Alexander M'Kie sT
Drumbowie, guilty of being in armes and jova-
in;r with the relx^ls in the rebellion, 1679.
.Sic Subscribilurf Ja. £llies, CaooeBtf.
The assysers all in one Toicw, 4»y the
of ther ( liaueellur, aUn'e wreiUc^, linds tbe
pnjbation ie<l lor Ak'xauder M*liie of Dmsi*
boy, not to (irove tlie defences prtiyiwii i lir
liini in his exculpation, io neepeot it itfrassi
that lie wttti at other phices with tte whJhi,
and tiiat the diswasive used by hiaa ioOaiib-
ley aod Kilvexuum waa at tht Iwk o| i
rje-
^li of Litle
lUly
Jpid not at tTi.* nrirlrtrli <yf CrocemK-liiel, cotj-
***nmi iteHoquiiur.
D«r<rm^rl8, 1682.
^ The saiH day, the &/>rd« Justice G
^ommi-Siimii*i-so* Justimry, hnv:
he tcrdict of assyse rctuntnl
*aal NftmutJ Grierson of D^i
rieriim of Lochenimrr, .*
Eloudffn, John iiiown h
leory W'Culloijli of Unrlmime, -
cl»vof MuyiKlfJ, ^Ir. Tlmniu^ Vernor lome
I ^> n3u:lellaii, Gtorge GortJojj
'■J' I "I of Holing, /llexuncler
^ t^tT of Overtounc*, Amhuny
' of CJuncard^ Mr. Satiuid Ar-
JiMt, tH,r.- ntjn»ucr nt Ti>iitjbii«i» Jatnrs Ciieb.
touaof IhAe of lJiili|ufjassie, Hny of
^"' '" ' ' ' ^^ vuTiiIer Hiniier of Culquliassrn,
;J; <**' LiUe Arii-s» AUjcarMJer
^" -. -l*^niie, and FullnUiune
^^ ^hireby lUcy urcfouiid ^^mliv i»f
fJ' .I - of treason aiMl rebdIio(» mcTihatiril
in tiirir dittay, The salds U»rd* thedorbe
the mrtuth of Jam« Johii^toune. dein(iaiter id'
C' rned aad ailjudgeii the »:)ids AKx-
•' ^'G of DrumJKj\vie, and Amhony
it'Kie or Cbiu'urd, to he laken to tiie mvrcdt
cror^-iif Effinhiirjn'h^ npOn the iirsl WeiJnesjday
*■' ^ d'|»eiwUt two
f i, and ther* tt»
bt nmigcn on a t;iij|jrt lii{ IIjl> he dead. Aod
•bo dec«nied aticj atfjudjfed ihe haiU reiiiRdtut
^enofi* above Oiimed, and ilk anu of thcin (ex-
cept Kamue) (inemm of Halconai', who ji;
Ueftd) tn I ».. ,x.. ,.. ..1^ demaintd a*
^^*^' n of irea-ioii^
™<>l'' r .: -, , v^'.^l by lhplavi4?«
oflhis realiiit, when they Mmll bt- iiii;ifthcnd'
ed»ut siuh timt-s, places, and iti such rnuaiRT,
M the Lord* jiiitice ^enerall, iu«lk-e cfnk, aud
eoramiwjioiitTR ofjuslmary, *hall nppoynl, and
oHainc* their tiaiues^ iuemories, and' honors,
«tJd4he namt, memory, sun] hoiioitif uf the du*
ct'im Nam lie I Griersone, and of the iiaids An-
thony and Alexander M*Kies, to he extinct,
»nd ihcir nrmes to be riven fnilh and dcleie
€iti! of the Itooks of anns, Bua that their |iosttt-
'■**'■* ' ■ ^f"** b«ve place nor he abb heri^tWr
^^ '>.V«c any honoi-si, officii* or di|rni.
^^- • ■'"** reahnr, in tyme coinini^, and
to huve forKinh ainitted and lint all and sun-
4ri<» iheir bnd^. htreta^, t^'necnenU, anny||l
rents, o«ic«!i, Uile«, disftiitiea. tack-». steading,
raumts, ptisgesuions, i^otKla and y:eir, wUiit-
«(>iiiever perteiningr *« them, to our ioverai^^ne
lord'a u»e, to rematne perj^ciuallie with his ina-
jcfty tri properties V\ hich wat uronuuced for
Iiall gives the fidlowing account :
♦* December 14, 1082. At PH^'V Coiineil,'
captain John Graham, of CfiivrrhoiiHr, his h'ti
ofcon»pf.untasf,unsi sir John U.ilivnjphs ad-
votau, yvnK read. It bore, rliat sirVjohn Dal-
Out of the trafMicrioni whic!h 04?curred in
Oaflo^rny during' rhis vear (\QB'i) aro*> a en-
^■" i t«o very considerable
F • , , . , . tuple ftnd'the celebrated
\OL. xi;
ryniple l»ad wenkencdlhe tiandsof the goieVnV
iiient, in the wlinc id C^JloMuy, mi inuerNinff
and opposing the eoin rait* ton uhich the kiiit^'t
couticit had jrirei, la Claverhou^e, containing n
pmxtr both civil, criminal and military, ol*
s lenff^hjp and josliciary, oV executing tha
dnirch ln\f s againjit conienlicles, mihdrawin^
ironi the Kirk, unlaitfid haplismi, jfc. nod.T
the preUnre of bii pre terabit jurisdiction, us
hfiitih]! Utilie of the r^'gility of Glunluce j
and that \w stodied to stn* up'itje people to a
dislike- lit the kint^'** forces there ; whieh pro-'
jtHN, des,- H ■ > ■: ■» ,r1i, were tfie \erA siune
*^'*** ^^""^ uisii^ir JjmesTurner^
*"*♦*•**"" ^^ - .........,.«ein 166(5, whenihcy
rose and came to feniland. hilts in aims, antl
have u naiural tendency to s*/iii..>.. .^r,j ^^,
stilling re'wflHon ; that he k. ,] aail
disad'ected perNOos to be his I- i clerks
to liis regahty, and did not adni mister the test
to them, Till long after Jwnnarv 168^, contrary
to the act of iiarliamenl ; and that he imposed
inock-fiacst on delinqnenta, t»ot the (iftieth or
sixtu ' r^fhat ihe law required, only to
pl'^'V luiUKe's lines; and that he and
Im t.iu.Li owf^red him a bribe of 150/. sterlino*
i»ut of their tine**, to cotmivc at the irregulari*
ties of his mother the lady Stairs, hi» sillers
and others J and di^ iosolently Juugh at th©
proclaraition of a court, made and intimate liy
riaverhouse, and disiduo i^'ed his tenant*? to l>e
prt&ent; that at the head conrt, he produced
a factious, iustrumefit against him, as if he had
eicacted fr^^e quarters ; and did convocite, cm*
su!t and eombine Hith some gentlemen there,
Jinent matters of utate, eentrary to \m oath of
the test, vvheiehy he had incurred the crime of
perjury ; and had depraved and misinti rpreted
the l;ni:;'s law JOIJI, anrnt free ipiarlers, as if
the pt ofde were not bound to t^irnish corn and
i^traw to the >.oldiers at atJ, ami so had endea-
Toured to crtule discorrl and jealcntsies betvieea
the king and his Jiulijeels, vrhrnhy he ha4
committed the erime, and merite<l th'e pum»»li* "*
mentof leasing-niaking; and that he had tra-
tlucwl and defumed Ciaver house, to the piivjl
cmm»c\\wH, m a contraveener of the Raid lavH
against Itpc ijuartersi and as one viho ha4^
usurped and attMumwf the king's incommuni-^
cable prerogative in remifting and diacharginrj
at his own iiand Hay, <d' Park, and others", fof^
tr^aon and other erimeK beyond his commis* ,
aiofi ; and had imsrepre»entei1 hun, a* one wha/
bad cheuted the king'n treasury, in ejcnctingl
the Hues of heritnre, and not aecuunling fi>f^
ihem ; at least. fulHelv giving m a • »
the Exchequer, tar fwlow his inir
and all *vhich reenmioatioii% neie eoiiiiUM ti in
a hbd drawn un by the said ur Joha, and in*
tended to have bcea givm in by biui^ a^aiLvv«k
3 P
I
047] S4 CHARLES 11. Proceedings BgainH thM GJioaay Ma^ ^
sir John to coraplaio of the cyacliBg of fm
quarters, in the Dame of any bot of liimidf
and his tenants only, without be had a eoo-
mission from the rest of th'e shire* which drty
durst not then Jojn ; aoldiera gettipg a mora
faFoiirable heanng than countiy geoUeme&i u
appeared in John Chiealy'« caae, Ace."
<« Fehniaiy 18, 1683. At Privy Coaadl,
the probation led between CI#verbouae and m
John Dalrymple, being adviaed, they fbod^
that Claverhouse had done nothing M elU
Claverhouse, to tiic Council, and which he
ought either to prove, or else be punished as
the author of an infamous libel. Sir John's
answers bpiucr also read ; tbc chancellor re-
proFe<i him for his tart reflections on Claver-
bouKc*8 inyfenuit)', Then sir John urg;ed, he
ini^ht be allowed to adduce what witnesses he
had in town, for pn)ving some of the points of
fact containe<l in his answers. This was de-
nied him ; and the chancellor appealed to the
king's advocate, If a diligence vvas ever in
form granted at |)rivy council, to a defeader
to prt)ve his defeiice, unless he were in a libel
of reconvention. This was to compel him to
give in his counter- libel. Then Claverhonse's
witnesses l>eing called, and his libel as relevant
admitted lo Jiis pro})ation ; and sir George
Lockhart, (who was so generous as to-|ay
aside all former private resentments, and ap*
pear as one of sir John's advocates, on which
side I a!s4> stood) l>eing adduced as a witness,
to prove that he heard sir John charge somi^
of the alM)ve- mentioned things on Claverhouset
air George answered. That such a preparative
would be fiemmi cxernpli^ to force advocates to
disclose their clients liecrets. The chancellor
thought he might be ordaiue<l to depone : but
seeing sir John offered to raise a libel on thir
very particulars ; this rendered the examining
witnesses on that point unnecessary. Thexe
was much trans|>ort, flame and humour in this
cause : and die cloud on tlie late president's
family was taken advantage of now ; which
shows the world's instability. 8ir John al-
ledging the people in Galloway were turned
orderly and regular ; Claverhouse answered ,
There were as many elephants and crocodiles
in Galloway, as lovul or regular persons;
meaning there was none of either : which was
a bi»ld accusiition and reilcction on a whole
chirc. And yet the council would not allow
was very legadf and oonaonent to his cnaa'a
sion and instnictioos, and the ohanodkreiB-
pKmented him so far, that they wendsnd tM
he not beioff a lawytr, had walked as wadf
in so irregular a coiintiy, (for he aaerftsdlki
reduction of the west to k nnacioehls osBfanii/
and reformation, to himaeif,) moA thatufias lb
chancellor gave him the ^oimeB^B tfaaals ftr
his encouragement ; and Ihund that ar Ms
Dalrvmple, though a hiwyer sad haiKa sf iki
regality of Glenlnee, had exceeded hie I
and had weakened the handa of hhi inyaijV
authority and the conncil^, ' ud tMr sh^
missions, and inlerfeied with them s andrtws
fore they declared the said air John to loss hh
heritable bailery during his lifhtiaM^ and Is w
500/. sterling of fine, Md to enter dwt lUl
into prison in the eadkle of Gdinhwaghi ^ tP
there not only liH ho paid it, hot dtiriifilhi
counoirs pleasure. Borne were. for ipftk
sterling fine. This rij(our wae th^
lutcly necessary to discoqra^ all i
ping or opposing thsir nihtary neaM
" Feb. $0, 1683. Bir Joim Hahjaplii h
this day liberate from |iriaiMi oa nayiaglii
fine, Hugh Walhice, caah-keeper, Vanag »
ported Ins discharge, and npon n kill islhi
council relating the sentenoe, end aakaie^
ledging his rashness, |U)|| crai.Tipff thecMMl
pardon.'*
rt
049] Proc€edinp against Sempf^^ Wait^ and Thomion. A* D. 16Si. [9C
943* Proceedings against John Semplk, John Watt, atidGABRiE!
Thomson, for Treason: 36 Charles IL a.d. 1684. [No^
firtt published from the Records of Jusliciarj? at Edinburgh.*]
*i ri
^Ur^^
I'rtton"^ lino
lesiino se%ct .
per tinbilem • i '
Itm Con]h(?m lie LiiiiithtroWt JuKticiantiin
Oeiiei'Silem* el Himoralnlen Virus I>«>tiiinrt&
J#cutitim Fotilf^, lie rVilinmtitif Jiitiiidnrii
Clfcriciim^ Johwnacni Lockhart tie Custle-
hlWf Dm via em Balfour de For ret, Roifprudi
Hog de Harearsif et Akxan<lrur»> ^ior»
C^krst, < >narioi Jtisticiarli, dicti
8, D. f<(. iiegjs.
Cdrift legitime affirtntita,
j0ktiSrmpU,MnWuttt9Lh6 Gabriel Thmn.
InDYTED anif accosH, That wlier notwitU-
stuidtDtf by tbe lawes oi tb'iM aind aH well go*
kerned notions and by tbe lawea and practice
uf (Iii* kitiufdora, whf D ther is t warr d eel aired
h\ 11 tbe kingdom, all bis majesly^ii
luk ri- actuaib« obieidgcd to coocurr
aif^iiiiMit tbo!ke wbn bate declaired tbe warr, and
ifiiieh more lb at tbe said vrarr and declaration
of warr is unlawfully and that they ackaow*
teiigc and AS!f«rt it ii ipo, and doe comiti ireas^^n
frbea tbe refuse to tet^titie tliftt tbc«e wbo de-
• This prosecution w«« one of those iwhicb
irt}«e out of tbe pubUcation oCubAt was called,
^* An Apotoiretical Declaratif" •'* *'!rnonitory
Vindication/' which tvas t) I clais of
TchtMn^^nJ Tn«! ^MirlirJ^! iviM f' _ ;)Sj Vvblth
t*ai otH ', ** L'unitronsilii*,''
from Ml ! ' II (aa to \vhum» aee
f ol. 10, |). ^00. im also as to the Camero-
oianftf vob 10. p. 850») and wbicb aUerwardi
Itniitd tbtniiH*»tves " llie 8ocietie« untied m
^* corr<*»jnind<nc€/* and was grnemlly called
hy others •♦ Society People.** This Uccbra-
UOD^ 1M piddnihcd by H«>drow, from a copy
itnder Uenwick'S tmn hand, ia as followtt :
UoctTTY ritrirLE's DECLARATION, rip€fm/.>
0^mn4t lNP«>aMKfts und IwrtLLtaEncM^
'* Albeit we tuow tbat llie peojile of God in
<..-. htivr been f ^n^ltv i*- »v... ,ited^ and
icvibHi h\ .tod enc-
'mtliH oi , CLmt i
tbe
Lu; or«J*c-
. Tbere-
c'lared the snid warr are tfnilnrn, betnsr tbweby
art and part of i" ' £ibn%j
lbt;r beitijor no ' '*'
'i I Ir i Kit tMi ^vyii, all WHO aw ril luftl
repute either friend* or ene*J
uiii'^. .^r '^ ^ it is of TcKlie, that sofmil
of bis Why u>roiN and disloyal snhjec
haling mo^i i '•' 'irtd itupiouslie asfeeili«l
bled ibeinsdvi^ , tbev did, upon th
tweuty-d^bt ui last by past, »'niitt
most hellish and b^rbarntts pniclaruation, de
cltiiring that ihev be vert ue of their ohlifiraiiom*
iVofii the covenant dtfclniTned his majesty and
bis anlboriiy, and that they wei^ in a slate of
warr against bitn« and bein^ so engaged in A
warr, tbey ti«I onW owne, but invite all of their
judf^ienr 1 ' s und aasatsiiiat all bis ma-
j^stte's jii icers, raasfistralesj and all
who should lutornic tbem, agnruvt them or
tbt^ir recejftofs. And did declare tbey would
begin" '' '^ " ir warrc and ansassi nation npoti
the t> November, iratnrdisitflT after lh«
pron*t.l^u.i*,.. of this dread lull anJ %tlbiuoa«
paper, and this paper having been posted upoa
ibe church d«ors of Kilbvyd^ LinliilMKtw, and
»et«ra!l olber places in the kin itaidi
Jobu Semple, John Watt, and < ■ ■ uump*
son, wer taken, and examined who wer tha
contrivers of tbat paper wid their accomplices^
Hnd if they owned tbe said procUtnation, fttid
that they wet in a state of warr, and if they
would ttKftaMiwtf te« Tbey refused to dis*
fore, m hitlierto, tbrougb grace assisting, we
have not been driven io lay aside necessary
obliging duties, liccause of the viperous threat-
eiiings of men, wbo are given up of an holy
and wif$e God, to lay out all tbeir might and
power for proraoving a course of wicked pro-
fanitv liv \itnlent {H^^rsecution, and iffnominioui
calii :dl of Mbosn nctcrtbelc*s, ibal
ire I le unto God^ we heartily wisb
eteriKii . non) sa we declare our lirm fCMi
lutioii 1 e^ot adherence Io our CormiiH
iiod where we are boaiid to
have Is and fo«« with our cove-
nanted iitturmaLioii, and to look upon what it
done to one, us done to all of us x and also oitf
unuii
tioii,
of i
stitv '
atid
«0u^
tbiii.
bim
'herenec to
ue have d
)
U
. vt
. lar«d
Miob aa
>iLiii»c:iviai to promitv'e his wicked and
I
951] S6.CHAruLES 11. Proceedings agaimt Seniple,Wait, and Thmuom^ [tSf
oune that paper in sua farr as it declares a warr
a<«^ainht the kin«if, and that it is laui'tdl to kill
mind may be the more clearly undei-stood, and
for preventing further mistakes anent our pur-
poses, we do hereby joyntly ami unanimously
testify and declare, that as we utterly detest
.and abhor that hellish principle of kitlinpf all
who difTer in judg-ment and perswasion from
us, it haTing no bottom upon the word of God, or
■ri^ht reason ; so we look upon it as a duty bind-
ing upon us, to publish 0|>eiily unto the world,
-that forasmuch as we arc firmly and really
pur|)osed not to injure or offend any whomso-
ever, but to pursue the ends of our Covenants,
in standing to the defence of our grlorious work
of Reformation, and of our own lives : Yet, we
«ay, we do hereby declare unto all, that who-
soever stretcheth forth their hands against us,
while we are maintaining the came and inte-
rest of Christ against his enemies, in the de-
fence of our covenanted Reformation, by shed-
cling our blood actually, either by authoritative
commanding, such as bloody counsellers
-(bloody we say) insinuating clearly by this,
and the other adjective epithets, an open dis-
tinction betwixt the cruel and blood-thirsty,
and the more sober and moderate, especially
that, so called, justiciary, generals of forces,
■adjutants, captains, lieutenants, and all in civil
-and military power, who make it their work to
«mbrue their hands in our blood, or by ol)eying
such commands, such as bloody militia-men,
malicious troopers, soldiers and dragoons;
likewise, such gentlemen and commons, who,
through wickedness and ill-will, ride and nm
with the foresaid persons, to lay search for us,
or who deliver any of ns into their hands, to
the spilling of our blood, by inticing morally,
or stirring up enemies to tlie taking away of
our Hvcs, such as desiy^nedly and purposedly
advise, counsel, and encourage them to pro-
ceed against us, to our utter extirpation ; by
informing agninst us wickedly, wittingly, and
willingly, such as viperous ami malicious bi-
shops and curates, and all such sort of Intelli-
gencers, who lay out themselves to the effu-
sion oi'our b!o«d, together with all sucli as, in
obedience to the enemies their commands, at
the siv^^iit of us raise the hue and the cry after
us ; yea, and all such as compearing hefnre the
adversaries their courts, upon their demands
delate us, and any who befriend us to their and
our extreme hazard and sufforiug. We say
all, and every one of such shall be reputed by
«», enemies to God, and the covenanted woik
t)f Heforinatifm, and punished as such, acconl-
ing to our power, and the degree of their of-
fence ; cliittly, if they shall continue after the
])uhlicaiion of this our declaration, obstinately
and liabitiKiUy, wiih malice to proceetl against
UK, any of the foresaid ways, not at all cxecm-
ing from present pimi>hment, such as formerly
have been chief ringleaders and obstinate of-
fenders. Withal leaving rwnn for civil and
occlesinstic satisfaction before lauful and set-
tled judicatories, tor the offences of such per*
the king's officers of state, councelloiiit, jii-
tices, souldiers, and others deriving sstboiiiy
sons as our pow er at this time csnnot reaehi m
the degrees of whose punishment, sccording It
their oflences, is hard for us to be deterausei
Finally, we do bereti\'^ declare, that we ibh«,
condemn, and dischafjge any personarsttenyl^
upon any pretext whatsomever, without pRvi-
ous deliberation, conunon or cmnpetnit os»
sent, with certain probation by sutficiest wit-
nesses, the guilty person's confessaoo, or te
notoumess of ^le deeds tliemselTes. IshilMl- .
ing also aod discharging any of' our emiswia
whatsomever, to str^ch forth their hsndi b^
yond the certainly known degrees of ssy
the foresaid persons their offenees.
*' Now let not any think, that.,(oiir God«-
sisting us) we will be so sladL- handed tnliai
coming, to put matters in execution, as hcnii*
fore we have been, seeing we are boond fiM-
fully and Talisntly to maintain our Corssiat^
and the cause^f Christ. TbereAve, let d '
these foresaid persons be admonished of ifav
hazard, and particularly all ye InteUigeoeo^
who, by your voluntary informations^ ente-
vour to render us op into the' enemies t^
hands, that our blood may be aheil; for W
such courses ye both endanger year imnarti
souls, if repentance prevent. not, seeing Giri
will make inquisition tor shedding the pffrioM
blood of bis samts, whatever be the tboogkli
of men ; and also your bodies, seeing' youres-
der yourselves ^tually and maliciousiy goStf
of our blood, whose imioccncy the Lord ksov*
eth. However, we are sorry at oor vcrf
hearts, that any of you should choose sud
courses, either with Bloody Dneg* to shed otf
blood, or with the flattering Zipliites, to infflra
piTTCiilors wlicrc we are to be found. So «
say sgain, we desire you to take warning of
the hazard that ye incur, by following sodi
courses; for sinless necessity for self- presern-
tion, accompanied with holy zeal for Cbnst*||
in peril is not l(i:»t, and all that is delayed is
not forgivtn. Therefore, expect to be deil
with as yc dealt with us, so far as our pover
can reach, not because we are acted by a siofiil
spirit of revengv, for private and personal inja-.
ncs, but mainly because by our fall Reform!*
tion suffers damage; yea, the exerci^ of god-
liness through ensnaring flatteries, and terribli
threateninp:, wil! tiiorcby be brought tosven
low ebb, the consciences of many more diew«
fully surrendered, and profanity more esUblish-
j ed and propagated.
*' And as u|)on the one hand we bavehfrt
declared our purpose ancnt malicious injura^
I of us, so upon the other hand, wc do benW
l>eseech, invite, and obtest all you who ««
well unto Zion, to shew your guoiV wLI lowarii
us, by acUng xiith us, and in your plsces Si^
stations, according to your ability, couDseffiM^
encouraging, and strcngtbeoiog our haoAilS
ms]
Jbr High Trmtm.
ir^m tbe^ kingt ^d«1 mfarruer*, cir to tlcciaire
ivkiiUcr Uiey iu
1)»«1 nny band in cbe cmititoj^ or
llu ' 1* boidinif up tlie itandsiril of
Ot! ri^it. TliinL iLotthiit in any
M\\ ...>^d lo tje by neutrml ami iiidil-
fcr i,;lly ill fiueb n ilny ; ibr w« are a
JK'j, - , t ^ly Ctiireriaots «Jcdicjiretl uuto llie
THitil, m our jicisouiit livi'*(, lib<:rties» and for-
tunes, fi>r ild'emlJn)^ and pmmotinir hr^ t:!ori-
6u« work oi" lurornicitiou, uotwii^ nil
op|>0!^itioa tbat is, or tuny be mail' i *• i
yeo^atid ^wornai: atrubiy anil iuiiii-
fcreiicy iii llieLi'ii. ,» And moreover,
we nre fully pers^vadcd, lUat the Lord* who
DOW hidetb lii^: face from (he bous« of JafuK
v^h\ ' ' ■ ' ' li out of
UnU t-uu^L'juuL^it)L-iu to TLtiiiu ny aiu lu riglltC-
OUSU<^5.
** Thus baring declnrH m— ^>-'i-'*^^>'-' i"»^-
ful, and iieo^ss^iry \ju
Inntter, in order to (hr ji . , ..
we do hereby stuuitc and ordaine, that upon
the FAU dri\ of Xovembt^r, copies of tl*is our
pr be affixed apon a sufficient aud
coil iimberof the public market-croissex
of tfte fe»oti<^tiTe burrows, and of the patent
doors of the respective kirks within this king-
dom.— Given at , upon the 23th day
of OcU>ber, ]6&4»— Let King Jc«us reign, and
pll Uta enemies be scattered/*
Thii puMicition gave riBe lo llie following
Proclaiuaiioa :
WoCL4MATlQN AGAINST A TuEAiiO LIABLE 1>U*
. cuvRATioN, Dec. 30 » 108**
Pr€4tn( in CcmnciV.— Eflrl of Perth, I/«Td
High Chancellor; I^ord Atrhbishop of St.
Andrews ; Duke of Qiirftitbury» Lord High
Treiisurcr : l^nl Arclibishoii of Ghs^w ;
Mar<|ui^ of T" / '.' '" '* ' 'i|^,
Mar, GleDt ui*
mure, Twr
Lonfa Yestc I
^« ^ejiiion ;
Lord Justice
Go**fortl*
Clerk, Lofd CJattle-hilf, and
" Charles by the graec of Ooc\ kinjf of
t>y
Gmt Britain, Fr
Ibeftilh ! To our
iifetbrcn^ heralds^
IKmeviiHt'*, and
•lirriflV tn \\v** •**
$prcially cor
fcvcruU inM»[
Jendier of
. and hi«
.t L, , t, .1 ... |i»-»jF council,
uit"«xi-njrer« at anin, *»ur
I r-.Hi.i,,.. ily and ««verally,
1'^. Forasmuch us
iti* rcbc'lli, havings
trrqueiiily refused ihe mtrnitcd olfiT* of our
€li^u»ency, hn*^ oC lat«? at«oii«il«Ml th«tiiH»>lv£ji,
tJt}d«-r a preii-ndei! h>nu ot ^ovcriunent, in
Qoctt^ticM, fillovv^hips^ \c. and havr, m their
meeluigv, ut last ptdled off I he mu«k uuder
whkh lh**V forrtii'rly i»fidr:i\otir%^d to di$^iii)i«
lh< ' ^ '^' laioeipli*'*, and
«^^ lied in u bti* trca>
I, 4 >jHiirii hs tiir.in^ iutd iiliixt at
|v b churchfi, (tuUtulfd, Th<j AJ>*h>-
A.tB. 1684. [954
piiUbihlniBr the ^ui) UMper f»r ftrocltunttlon* 01^
who wcT the publiijitrra thf«rof^ or io disclaim^ j
yftUcalOec^— -' *^ ■- ^ ' ■
of the till
and fromthnt do inter, iii3>
Litit a duty upon them, i<i iL i
wlio do any manner of wny xerve us, or beaoi
chari^e under u^, or who do (issi.<kt our judicii-
turc*^ or forces to the evet-uliou of our la^
(|>nnciples incoasiatent with all govemmentani
iociety, and tending' to the destruction of tb(
lives of our loyal and honest subjects) thorcfoi
we, with advice ot the lords of our privy <3o«o
oil, do hereby ordruo, that whoeoever i^ball owi
the said moat execrable and treason 4ible declai
tlon, or assftsiioations theiTiu n>eutione(l, ai
<S'f' Raficlples therein specltitd, or v
refuse to liittown the same, in
- ires a war ag-aiusl his sacnd m
asserts that it is lawful to Ldl .^i I- j
church, slate, army, or countrN ' i
and executed to the deatii, :\
hereby reip lire and comuifinf! i suUj
jects, especially ihc-se du >
and western sKiresot ihi^ ^
besouth the river of Tay,thut ila
all occasions,to concur with our
officsers, in sec I ■.
iug ; and that i
utmost endearoui > t • ^rrk, s.^
upprebeod any who shall own i i
i:„.,i I i..«i^^jJqj,^ jjjj^i ^Jj^j i^^j^
priucipleN ihtteio i
1 . , Jisown the ^nme, an ?,«. , .^ , v<j
iug tlicm, if they tiui hcrttio. they shall be pixi^
ceeded against, for their said collmiion ai
cotmivaace, witli the uttuoifi Hcvtnly of oi
Jaws : as also tlist, when they are rr<^uirei
they shall actually concur to keep and secui
('^s prisoners) the said rebels, when they ni
« ; and to search for, and drive away theii
-, when required Uy those commisiionati
by uit. And since thesTe rebels, alter deebirir
their hellish intentions, i'ar the belter perfi
anco of tlieir mischi^
•i-rret, and are nevti
of their hoirid assa
and down unknown
t a .. -, . -luolty to toi.K
essary to pre
rfonn-
'^s, do lurk
, but in the sett
■!
t
-^-.- ..- - AI
doue, as atcdiffeiiHiced troin
the bad hs - sii^ns ; at leant con-
stant ioi|Utiies mHV ocLMMon a continual trouble^
even to our j^ood HubjootH; therefore, osa re-'
inedy for these ineonvenienceSf we dei'iare ii ti>
be our ni)al will and pli*ii«ure, and we hereby
commund snd ricjutre nil our siubjects, witluti
ihi^ our aiicieni kth{>dt>m, both men and
women, pa*t the n^r of Kixte« n >rar»<, not lo
prefiume lo Unvtl willuMit tistili* iitrst of thinr
loyrihy and •frntd principk^, which they are t&i
liarc Vii muiiucr tollowiii)f :^ and we ii^retk^
mS] SG CHARLES 11. Prt^tedingt figiiiM Sem/bf fnn^trndThmtm^y
Cten a» tftttor>ik)« i Wberthrow tliej ami ilk
ttitf of tkem wer fuilty of coaXrjrtng, emmit-
covUmiiMi ftfl benlorSf (ifer^titeri, and wailstt*
left, ind in th^ir mbtenci*, tlieir ficton atid
€iimti»beHain«, to c^nvocate all the iohalMtitits
upon tlieir Utidsin ever)' re4[)ectiT« parish, and
tobhi>cr t^ifm before toy of our priiry ccHJRseilefs,
©rrv siooei^ appoint^ by our t?ottAfil
in I s and bomid* laidenR-rlttpn, ri*.
Ltiitik, iiUdfrew, Air, Dumbart' ir*
NiUt'»dak, <^nd Kcewartry of Anm
f»ur ^artry of li»rct»dlfrtglit, ijei\*ick,
Wt\l Ami' Kin]t>sji, Min^ West, ami
Sast ij^i' ' ■; ' , '■ '
«ity of I
liesi IherfMi.i -> ami
fitm, (induili n Hhy)
firunj three oi ,,, ,. <v , ;.,. s.Uertfl*sof
lliesn'rufr^ m here Ih^re Ar^ tKi iuch commistimi,
to deliirer them an eidct list d* ibe names of
•n iTieir inhabitanist ^^^ thi> roaster und atl
the iubabitAnts^ slntll, iti tolemn mafinpr, to
■feiewaa of the naid commUsioDtrs, take the
rollowing' oath, f iz.
* I A. B, do hereby abhor^ renounce and
* dbown, in presence of the Almighty Gml, the
* pretended Declinlion of War, lai* ' al
* leventl pan^b churches, in sio ffli" fS
* a war agarn&t bis sacred majesty , and a>.spits,
* tliat it ii laivful to kill such aa aerre his ma-
•jdty, in Church, State, Array, or country.'
•« And auch as can subscribe, are to subacnbe
lilt same, on a larg-e sheet of pajier, for cferv
pthib : and on perfornHiDce thereof, the aaTd
cofDtnissionera are hereby ordained to delirer
In every atich perion, a teatificate of the tenor
lollowinfr, ?iz.
< We A, B. ^c. do, by these, testify and de-
* dare, thit C. in the parish ot'D. did compear
* before ufi, and on bis nr her toteran oath be-
* fbre Ahnighty God, tlid abjtireafifl rf*noirnce
**llw kietraiter«>n«Apo)(igetical£>' in
* fO fcr i« it ilerlarea war aj^aiftsi y,
* Slid iBMfts, that it ia lav^ful t<:rkaL<iiLh as
* 9erT^ bia majeaiy iu churchy sttte, &rmy, or
* MQfitry.
** Which tealtfkate we declare is to serre fr^
* frac paaa to all wha have the same for all time
tiMMller, and shall preserve tbetn fri^m nil
■wicitition and tnmble in tfoing aliout their
■AHni i and if it shall happen any of the stild
istiitfit^^ i'» I**" 1*^ by the pe^^rr^ vrhn r^ t^^ive
ftiefunr y are to bate tl d
ijf th€fti \ i/ranted them, aiw 9
Urt of the rcii|»ectire parisbcs ; C€Tiily*fi^
liwcby, all aneb who shall adventore to traret
villkMit lb tealificate in manner fbre^id, that
4ifT attalt be hoVden and used as ccnicnrrera
with the foresaid eveorable rebek, and as er^'tlty
of the f«>rf>ioid ireammaye DeckraNnn, and ae-
^t0%' ■ ' ■ ■ ' ' 'i ;' V itic effc^l
llb^ ktiifWif
to aii concern e ii , llr «» hir i ♦ i>y ^ d C^Onii -
mamd all our aboriiti, «ml ^n of mt
Wf^ bvrirhf nsfpecthe, i# i^fu^-i^ ini^iusft tlte
MM «t ijl tli« p«fifft^efaitr(4No #ithpBi tlria
lln^ and jHibliayag tbe 1
ration, at ib« lea*t mere a<!*i-* -
kintrdom. upon tfa« Lmrd^^dMy _.„. .. .-^i
▼ice, and that vHUti 4U pOflMe iRl^^AKt i I
that the beritora, frrem%i<n« a at! ui^'lfHMi
exery parish gfi?t .:/«
Uie regular incti .jlI
person or nemna aa »ihalJ br mp^txit^ lij tkt
sheriff and aletrart of earl* ahtr* and «**^ft^»
IT i Lht n ill e snaoe of Hfleeti da js lifW? '
limatiarn at the ymrv^li efb'mrr'lH^ I'^^^p
I i t^poci kati
, I [If if r.anrT miii iak# •
pradtfce them, cvmforai to flir i
mniir** *
^ , *. . . ,^ cT>CBMm
a s«Mi«<l oeibwif
i tbeir nodfimi^
fif If err by dBdVl^
ui^wc^^ble that vM
ui I lie place v n*
sent, and for w 1 •
att fuv
to tllr;
til,.' ■:
of ibe i(ooii» of the aanl t*«r90t»i H« falfft itA|J
grmmcT until those em ployed l>y »• $Kalt ii
mit\fith thein \ and if any t^ theae vlt^ c<i^
pear aball own tht* xa*d iraiff^roof derfaf«Jia
and the principle, and pi Hi •',
ed, or stiftU reiuie tti diw>\v uc
ne\' a bore prescribed, the s»uj c«ntiUitMia
are Itereby reqaifed tn^antly to sectrre asd I
pre h end tlieir pertfOtii, atid oury tbna lili
next burg^b, sbenfT, bailie of t«filtly, # i
of our forces tvbo are nearest : ono aayalif'
shall receif e them, are bere^jf rf^if«4 V
carry thetn to thfe sorest prmn b«I *
thereto be kept till onreooncil be L^.
iberewitfa, and c^^ve order therein » m«d ikt lf»
prebenders are hereby ioipovrered la cal i|
their aasistiiuce, such of nur livgies aa tlity i' ~
think tit for executing of our etimammit | <
if any ahall reluse to concur, vre firirlan
are to be holden as cottcnrr ' and a^^
CIS of theae rebels ; and 4ny b«ipa«
bferenter or wadsetter altJ&M tm\ m dodf •
aibrejiard, they shall be ktHdcn tm ^mViy min
foresaid crimes , and pitnued and ■siiiktd
accordingly : And we do bereby atrtcdj ar4^
bit and discharge all our liegea ivhrififr t*
bor^fh or land, as well all other tionte keepfat
as nostler houses, inn k**e|feFt« snd
houses of cornnrori retort, to bsHkitar. kitek *
entertain an* iifT>i*»ri nh.it^m'^f i^r,
bare such
iindcf the p ^ . .ff!«n-« d^,
and mterctmimno<?rK \
tber sectirity ftnd j»i
hereby *remiired, that lite osr*ii anti {t\
the f>»re!Wtttl tc^fflmtef? jtHbI} bt» bfi!*
mv a.-
divcm
or any ♦^m-j 14*^ inr*-*i -'iiy t»j
to tile said uaifatui gitf
P*^«
J^r High TfMJos.
reruitng to dt<%f laime atid <}tM»wfie Uic mne^ %d«I
mti «ud fmrt lherof« and oft' the crjmev particu*
t6 tilt* piiLriNliiiii_» Alii! \pit tiiilinM tirrlm unrne, iut
f^rej'- ■ - ''"■'.'. ■•-'■"- VV'c
»m-'by tlrrlare uiid^^iuiure to iImsiii, ^nd ^verv
Oiir ot Uiiiwy, Mrhii 4(is.}i discover auy of tlie¥«
I, oc prcttadeU ttieiti^'rvi i| rewanl
4jf Hvc! huofli-ed uierks Scots, fiif
^ch of them wlio slmil br (LiKcovei'eiif so lis to
be apirrt'tii^nilt^K mimI found i^uiliy. And to
the effect ihMuiiiH.' : ' r
tilt- !iiaiJt:iJi
mni »s u(|}ie
MhiT . n >1M"
JitJ(!
*»cr ,.■■
" Giv#a ynder »
30Ui iljt>
^uU we oidttiu ^iieipe |)|^'
4t Cdinbargk the
our ni^ii tLe 36tl* ^ear.
Per actum Dumitiortni) secrftt Concilii.
'« Will, PAT&AnoJi. Ct Sec. C^o.
^^ God iBvo tbe Kitt^,^
«titticd , .i f 4 Wodrow,
Iheniic ^ iiust tbe
borrid pniiciple of «su»»u)fttjonJ'
Of the orijfin of the ** ' r ^ rrtiral Dedara*
tion," and of ibc proten I otl»er pro-
0^^f|.„.^ n.f>.--- i.i..».#^'.K-ii i^'l wiih it,
> V''*! icfom-
k b*v« omitted.
f^)tcnili«r and Uctoticr last, 16H1, Mii\Xi tbe
kaH ■ " T' i-,^. A-......, A., ...... i r nnlry \tqti^\e
AD t d in iUOMTQ
rtkHii. ll.lll^L• ih^'tr
-,,■ -.r^ir
ilir.
*' of PreJib^tenani
WiL' through Ibe
.kill n\ out, aiid
*4fith-
mt*K -n^' jiU-
Im^ riioular
ati<' ' Uir p*n;|Fi<^' uttit^d
itk ^ bcatd, Md with*
4pi'vu, ^..,i, ...M ........ w; 'Mi\ Caivilj from ihc
iHft^ol (h» Pniib^tcfiaii* of tbii Cburd>i were
A. a 1684. [9S6«
leriie nnd ffenentlly tbore libelled i wbicli
beiusT fbund he aqe ass^'i^, ibey 04ig;Ut to ^<l
in a apeeiJil matimrr btitiled, yea^ killed bM
the day lon^, and cousted 94 iheep fgr ib^
alauijbto-.
** From whi^i hath berti pouued al, aa to Uift
cf»nilitinn of those i^amleicffe aiid hithnj; per-t
^ ally ipcak; hoa^
who il> ^'-'iit lu tUcir heigbts]^
iIk* rr , s at their ckcum^
utet^
iiK' himoy sani iwi , the
couutry was aworn i . ao4 ,
v«'Uiju up from griving t' aAi|
secret iufMrrnersi and r ibtcl
til i-ii, n |l,#»rn rtfuj tiutj , i)J^
iidauywh* ii^sa^
__■_;._ L-^, were i- 'cJ,
ibd ia their gv^i
<.f, and the cou.
'Vbey wer^ pre£t:rU)edt and ca»^ uuL\if pitjveciiivM%
by thp q'nvprruiiciil, ncd no Irrmu would b^
Hi' vor tbcir 11^)^1, aud res
** A: ! u)i4(jh isor# tJian I cap oo>c
oarrai^ mous in tbair caap^ put Ui^ii|
UCiftCrii s«i lyt^ , ivhit'h, by their original record^
I finii» met Oct^iber 15, to pnhli^n iht-ir Apw-*
lo^- ' t fv ' -^- , j^^r. Jiiuj^js Uenuick
v^ it ^ aud it v^ aa published
by ^-Mtv,.. . ' '» * ^er^S.
** WLto 1 published bjf^
^nie of the - -...., ui.ied to sev^r^;
mAiliL'i<cK>«$e«, aud November B, uoated u|^J
upon a gieni many church-doors in Nilh^JaU*^
Galtowav, Airuud Lanerkfihii€3« ll
on the flnirf h doora of Kilbride^ fe»ii ^
i&ijd 1)3
** N^ U or 1$, copiea of tbe wcietici
paper ciiiim luUt tlie counciL, and put them m ^
j>crfet't r=ige. I shall give sotue iiiKlunce^ of it »
IT *tr!»« and tbea frutu «o[ue ftc-
lu persons yet alive, who vKett,
Iiri^<:i< u when the piisotue;^ w^r^ [
troucl' o.
** liy iuc i^r^iMiiJi I find a verj' severe act ^
anent John Srmpte. November 13. * Joha
* Semplc of C'mtijiliom m ihe pari&h of Glaa* ^
*■ tbrd, tuken ue4i iUe kirk oi Glaifordf anit
* brought in priMinerf aa suspect io bave l*eeu i| ^
* contriver of the lute treaaotiabU deeUiation .
' against the kinir« or at irmi accenory to th«
* tiTuing thtrt^f at Uie &&id kirk, ao'd aoiu^
* otbera^ or at least at baviiig knuu ledge of ib^ ,
' persona, contrivers, aibxpi-a^ or prt»molei% J
*' thereof, being called before iIjv couucU an4 r
! « • losod to give hia oath u|Hin the |ri^o^^
le lorda of bin Diaieaty's privy couQ^-j
* en oriiained him preaentfy to W tried bj|^
torture in tlie thumb-acrew, bo«»U, or botb» (^
Moiil he be brought to a clcfti' c4)nf(»ion^ ihejfi i
baf itig 6 Hit deiLlariHl, Uiat »bat In ahouJd dc-* ,
dare abouhl not mtliiaie agminsi biiu^eU aa (
hi»U|ie. AiidtbcsiiUJoboMPgcdMuiii
ViO) S6 CHARLES II. Proceedings aghinsi Semple, WtAt^ and thamtxm, ^•
punished ^ith forfiinlture of lylf, land and
goods, to the terror of others to committ the
lyke hcrefter.
Fersewrr. Sir George MackenMie^ of Rose-
hau^h, his iiiojestie's Adrocat.
' interrogate in the thumh-screw, and having^
' refused to declare, and at len^h turned faint,
* he was remanded to prison till to morrow at
' ten of the clock, at which time he is ag^in to
* he tried hy torture.' I meet with no more
about him in the counciMiooks ; we shall just
DOW meet with him to morrow hefurethe Jus-
ticiary.
" By other papers, particularly one nnder
Robert Goodwin's hand, uf whom I have given
some account before, 1 iimi, that November
13, he, with several other prisoners, was
brought this afternonn before the council, and
niterro{jple upon this paper, about which they
knew nothing'. In a gnat haste it was read
over to them, and they were ordered imme-
diately to hold up their hands and swear they
did not adhere to it, and knew not the authors
of it. Robert fioodwin in name of the rest
said, and I doubt not but it was the case of all
of them, that he had never heard it till it was
now read, that he knew nothing about the
forming of it, but would swear nothing about
it; whereupon they were sent to the Iron-
bonse.
" Another instance of their treatment of the
prisoners this day, I have from one present, and
witness to the terrible usance of William Niven
smith in Pollock- shaws in the parish of East-
woo<1. We hffanl formerly, that last month he
was banished to the plantations, and here I
shall take occasion to narrate some other par-
ticulars of his siiflferin;^, and that but in so
many wonls.
" *\\ c hf'anl of \n< trniiMc in tlie year 1678,
and since that tin)o he lived pciiccahly, fol-
lowinq; his trade, and had not hern at Bothuel.
nor was charirrahle with «ny thinpf, hut not
hearini;- Mr. Fi>lir'r I'm episropril incumbent.
Julj' '29 this ycyr, nbont midnight a party
came and took him oiit of his bed. and carried
liini to Cilasi;tiv\ Tolhooth. They a]lcfl;rei| \)c
had l)pcn at a st-riiionof Mr. Rciiwirk's, which
Wav i\\Ui*. Wo lay three weeks tiiere in irons.
And then, with John Machae of the parish of
Kilpiitrirk in UiKuhaiton shire, he was carried
np to th'.' bishop, and examined by him and
colonol Wiinir.i;!! upon the onlinary questions.
Noihiiiic was frjiind n'jfains^ WiHium save his
not ht^ariiijr Mr. Fisher, to ^^ horn I must do
tln'insti«;o to say, he was one ofthe soberest
of his way. ari.Mi(r came in:o Cihsj^ow, and
nsffi his ifitoiesl uitli the bishop, and Kiijnifieil
to him, that the priM):ier was a tr^oi! pi'actable
person, ami as to his not fjcariiiir, he would
take him int(» his own hand.
" lint nnthin*,' could prevail unless he would
take the test, which he peremptorily refusing,
•was sent, with live others, two and two of them ;
fettered together, into Edinburgh under a
gmrd. There he^y in the- irons night mhI i
His majestie declares that be insnli igiini'
the pannalls, and icstiicts the lyMI in the M-
lowing terraes, viz. That the' paDcaHs naae
or refase to disowne the traiterous procUiBt-
tion mentioned in the inifytment wheiby wr
day, till May 1685, when he had his dun a
Dunotter safferiDga, as we shall hnr, mi
afterwards was sent to New-Jefsey wiik R-
lochy.
'* This same day, when the aooounti of th
Auologetical Deelaration oanie into Edinbsf^
William with some others whotn mj infimBe
hath forgot, hut minda John Hodge snnpsnr
in Glasgow, John Canipbel inOYennoor,Jofei
and Peter Russelsin Bluirfaead of Shott paM,
James Tennant, in West- raider, were bmril
most suddenly about six of tlie clock at ni^
from the Iron-house to the council or ilio»
mittee. The chancellor posed WllKan ■!
the rest, whether they knew an j tfaioffof tk*
treasonable papers that had heen affixel >
church-doors last Saturday ni^ht, or SMa&
They all declared, tliey did not. Thco ihf
were interrogate if they owned the msMff i
them. The pannala answered, they )a0
nothing about them, and could neither svii
nor disown them.
<< The lords appeared to my infonncr, to k
in an unusual hurry and rage, and the dsk
was bid read the paper, which he did as fii
as he could run over it. Upon heirisgif i^
the panuals declared in^^enuously, that Ap
could make nojudgment of il upon sosvsft
an hearing. They were again required, xtA
the highest pains, to disown it as their osiM
They answiTcd, they had nu share iiiit,arf
would not take upon them to judge of it, sixc
this came not to their door.
*^ Whereupon they were rcmored a UkIp.
and when called in, they were told tliey wtfi
sentenced to die that night at ten of the dodk
and were removed two and two into comenif
the luigh council- house, with a soldier ori**
to wait uu them, there to continMC till the hia
of their execution. Happily for them iQitf-
thing or other fell in that night which pat^
manaifcrs in confusion : It was said, it mi
some letters they received, and so about iw .
hours at\er, they were carried back to tiie
Iron- house, and for a good many weeks tf*
tcrward they were made to expect every Af
they were to be executed at two of tlie cm
till "the king's death fell in, and then they ««ft
no more directly threatenetl. This procwlaiv
is every way so far out of tl&e road, ihit I
shonM not have inserted it, if I had net bad il
from one whom I can dejfcnd upon, who vitf
witness to ir, yet alive, attesting it in all itt
circumstances.
*^ From this instance wc mtky see the massrt
of this period, and what an handle wastsM
from every thing that fell out, to eareitise iht
greatest severities upon people who co«M ail
be supposed to have aiiy share in 4hoaa ia^
dents. To this likewise we nii|Bt altribuir lli
barbairous treatment of the.nttovn'ft*
9G1]
Jbr High Treasom*
H ileciairerl apfainU his majesty, and asscrtiog'
tlmi tt II hwjtili to kill liJi tho»e wbo wer im-
liloyed by bi^ niti^<«ty.
Duiufpiirs, fonnirly spokeu of. Old men, and
^otiiCQ uitii tlieit- suck liu^M not three Dionths
old, wcmuii \ntli ( liild, and otiiers near eighty
^eurs, u[inn \Ur hwdk of.i vtorm of frost and
M' 1 twenty, or twenty
i< t daVt and Uu-ougn
M I! uuii;in vi ilieiv Iives. None of
III cotdd bo concerned in ihU (mper^
ikuo ;.^ ..^ • .uiut cJiu Ue giren of Kiich Uaruurity,
^t Ihdr merciless temper exasjierated by tliis
ctrrlnrutiori,
'ly'y Navember 14, ihc nrinnag«rstf(i
■ >i^th,aad by the criminal records,
I Aod fieture the ju&ticiary, John ^w|>k| John
Watt, arul Gabriel Thomson. They are U-
|i' ' I'^h treason, as art and putt in the
ii ^ « posted up up4>Q the Kirk-doora.
The athucatc r^tricls the lihcl in those terms,
* Tbiil the pannaJs own, or nrfus« to disown
* t! I oas proclamation mentioned in their
!^ The pmbmtioD I!) John Sample
hiM jiMJUjni dec^laration that he ouos the nro-
clauiiition, and tv(tuld not disown it* Gauriel
Thomson i-eliitii^ to dimwn it. John Walt
l^finiCii to answer^ or lii^own tlic puper. The
m%^'j^c bringr in all the three guilty accordinj^ to
their conjession, and the birds seutt^nce them
to b<^ tiikrii to the Callow* lee, ihii^day hetwi^ct
three and five ot tlie rto< k in the afternoon,
Hid Ibrieit them in common foriiK
** I am well informe<l that John 8emple w^ut
tortured 'most crncll^' a tiecoud time In the
boots, and Uikt-n from the torture to the jus-
lieiaryt where sentence wasjmst, and execute<l
tli: liU'niitoii with the utheiH. At the
e^ 1'^ sobhers were bHrhuronn, and al-
ii m*!h MM poor raen scarce any time to pray*
The piH»ple who looked on were Hurrounded by
' t)ie Koldii'ns* and liad interrfigatories and qof ries
put to ihein, which when they refused to
answer upon oath, ten or twelve were made
nriiiODers, and carried from tlic scaffold to the
Toibooih.
^* At)er ihb, I 6nd the lonls of couccil delay
tbe <^jiammation of the prisoners in th« Ca-
DonfTute anil E4linburg:h totbooths, as to the
Ireawmtible declaration, and prha(>g would
ti^re extendai their tnttuiru-H into the coun*
Iry^ hud not the incident of killings oflveO'
|i" 1 Htuart fiillen in, which put
ill '^'i upon new^ and ^♦'t more wir-
** 1 hnve not fio di«tiDCt an account of the
lounterof these two, as f wi*h I liad, neither
XMti 1 %ay wliLiher it wa^ in sielf defence ornot,
but it Ik ^itljeriilly 9«aid, il \MtA itn mcditJkted Uy
•ume pcisou!! in tht* liomi, or M'
Ciety peijple liirkiniT fm , ihf'y having
lieen in-»<Ttly <- \ny for
ttinny v'^-^r^ ; nu — iuatJon,
lini mI iL They were both
gi was, of the Ufc'tt:uurd,
And kilUd, aii i> i^id, cotnitig Ottt of Iha door of
VOL, XJ,
A. D. 168K [962
FoIIoires the querie proposed he the lords o(
his majesty's privy councill to the lords of ht«
majestie'e counself and BJession, %h* Queritur,
the house at Swine- abhay, in the pariah of
Ltvii]nrg(ouc ; and afler the most narrow sfarcli
that was made, none of tlie actors could ever
be found, but I am assured, the i^ocicty peopl«
refused to admit some persons to their tellow-
bhips, whom they suspected to he concerned
in this murder, I have no account of 8iuari,
but Kpiinoway*a oppressions in Living^stoia%
W€?*t-C4i]der, and that nei^tilxiurhood, iVuiu
Pentland to this year, have been in part noticed,
and 1 shall add a lew other well vouched in-
stances of his former r.arrJag>e.
** Thomas Kennoway was very actire under
general Dalziel at Peutlanil, anil al\er Uie de-
feat of the west country army, he apprehended
that excellent person formerly mentioned, Mr.
Hucjh Mackiiil at Bradcs-cnn^s, and went still
on in spite and malice ag^jinst the su0erin$^
party, year after year. Some yean afler, he
with a party of the gnards attacked a com*
pany of unarmed people hearing sermon til
Thomas- moss in East-caldcr in Slid-lothian,
and E;hut one of them through the thigh, and beat
and spoiled many others. The council and
manager* soon took notice of Ids aciivjty and
severity ) and |(&ve him frequent commissions,
which he rig^oronsly executed. At one lime
he attocked ti meetm^ in the parish of Bath*
gate, and sln»t one James Davie, an heritor of
that )>ansht dead iu the ^pot, and to<»k Iburtfcu
t>risoi»ers, who were afterwards sent off the
:ingUo[U4 Al\er Bothw«1 he sei/^ed Mr. John
KJn^, and hrought him in priiioner to Edin-
I burifh. In IMid-calder, he seized on old maa
\ whom he alletlged to have been at Pentland^
and heat, and hound him in the roost baHiaroiia
manner. Mean while some w^ent into Edin-
burgh, and complained to the generul of his
r r.,..N, <vliereupoo a letter coming out to him
'^ bitu for his illegal severities, he
j_.: ,.,u po jr old man in fear of present
death, to sign a paper, that Thtnnas Kenno<
way had never wronged him in his person or
goods. In the parish of East-caJdcr he broke in
upon an house, and misusing the husband whom
be was seeking, l>eat and abused his wife, who
was with child, most inhumanely, and threaten-
ed before her eyes to force two of her daughlersi
all which nut her to such a fright, that she
parted witii child, and never recovered, but
died in a very little,
** Indeeil he was notoriously wicked and pro«
f^irte, a known ailulterer, and a feartiil ilrtiikeri
and blasphemous curser and flwearer. He
used to say* * Hell would be a good winter
^ quarters, but ill sumuier quarters.^ And/ine
in company asking, if he was not afraid to
speak BO of Hell ; he said with a new oath«
^ He was never afraiil of Hell, but some time
' he wafi afraid some of the rebc4s would shoo
* him dead at a dyke-side.* This was sod
year^ before his death,
'^ Instaof^tf of bti griarous opprouioo of thi
i
963] 36 CHARLES 11. Proceedinga againH Sempk, WiU^ and nomioih CM
trliitlier any of his majeRties snbjcctB behi^
questioned by his majestie's judges or commis-
sionera if they own a lifte \
fair as it dedaret wmt agmuiit bifl ncrad mM
parishes of East, Mid, and West-calders, and
Livinflpstone, have been s^ren, and many
niighi be added : He was indeed a terror to all
chat country side. And he was constantly al-
most among them, fining and oppressing mul-
titudes, of which I hare accounts before me
too long to be insert here. One thing I
shall notice, because it was much obsenred
after his death. Some time before Bfcldnim's
court, of which an account hath been c^ven,
Kennoway had for some time continued drink-
ing at Swme-abbay till all the money he had
was spent, and he had not wherewrth to pay
his rrckoning, he went out, and seeing a poor
countryman coming by on the road with a hag
of oats, by mere force he took it from him, and
threatened him dreadfully if ever he looked
afler them, and with the |K>or man's oats he
paid his lawing, and had some little more
money to drink upon in some other place. And
in this very i>lace he was sent into eternity.
« November 17. IlecameontofEilinburgh,
with a roll of persons, be said, he hada com-
mission, from the council, to apprehend in the
country, upwards of 150 men, probably of his
own upgivindf. He alighted at Livingstone,
where he met with the other Duncan Stuart,
to whom he shewed his commission, and told
him, in a few days hejboped to be as jpfood a laird
as many in that country, and they fell a drink-
ing. He regretted much that he was turning
old, and would not get tlie lands he now
reckoned as his own, long enjoyed. In the
way to Swine- abbay lie described and pointed
out the places hu had in bis eye to possess, to
his comratle Stuart, till they came thither, and
there tliey coutinued drinking and laying their
projects until the 20th of November, wheu
they were cut otf; the particular circumstances
whereof 1 caunot relate, none being wit-
nesses but the actors, who got off and were
never taken.
" This is all the account I can give of this
matter, and I do not set down those things to
vindicate the actors, but to shew how righteous
tlie providence was, that this wicked "man is
cut o(Y ill the midst of Ids days and projects,
however blanipabic the persons migtit be in
their manner of doing it. Before 1 have those
two persons, T only insert the councirs art De-
cember 9, ancnt tlieir widows, to shew the con-
cern they shewed tor the relatives of such as
had been active in the persecution. * The
* council ha\ing considered the petition of Janet
« Smart relict to Thomas Kennoway, one of
« the gentlemen of his majesty's iroard, and
« Jean JaflVry, relict to Duncan Stiinrt, nno-
* ther of them, lately inhumanely murdered
* and butchered by some desperate rebels and
* fugitives, at the house of Swine-abbay in tlie
* night-time, do recommend them to the Trea-
* sury for charity.*
•* But I come forward to the Council's more
public actings as to the fociety people's decla-
ration, and this murder at Bwine-ahbaj, ml
we shall ffnd them vevyifaigulv. Vnmtbmet
tliey take occarion, first to otilar a putahr
•earch to be made hi BdriAai]^, mieh wtt
not so nureasonaMe, ai^ then, aifter i
soning and oppuiitim to so nmcn
they agree anon, the Moody iirdeca to:
in the nelds ail who Bhoold Bcit eKpiemly db-
own the foresaid dedu«tioii,withDiit«iy1M
or legal process, and had j me ont a tarifc
commission for hanuBingf Ae oouulrj rsnl
the place where the two aoldieta weie UM^
and after that conrarinon ia eaeented, tkj
grant more general povrera to partfenlv trak
tees, to harass of new the west and lodlh es»
try. Of all which inlfaeir order, and from tti
pnblic records.
•« November 21. the<:;oaiiol make tbeli-
kiwing act. * The lords of kia^nHgesly'sfiify
* council, having just reason to aospect M
* several of those desperate nMit wlm ksn
* lately emitted a moat tndterooa
whereby they declare
' most sacred majerty, and
* civil,
•ma^
»in _
' murdered some of bis nnieaty's aohKen, i^
* quire tlie magistrates to take all vfiectoal ■»
< thods to discover them, and to take np btiif
* ail iu the bnrgh that are hooaholdany andtbi
* oaths of heritors as to the ti*nantB Hwy wA
* their houses to ; and by the fadp of ilieni>
* nisters and elders of the respectiTe "parnhi^
* to mnke up rolls of the inhabitants acendiH|
* to the respective parishes ; and impower in*
* nisters and elders to examine masters orab-
< tresses of families, upon oath, as to the aott*
* her of their servants, their namea and u^
* names; and likewise to give npthelflrtsif
< subtenants, if any, and to take op Bits sT
* lodgers in any house or tavern, so as all vA
* together may comprehend the whole peopK
* and to take an account of all persons wbi
* have neither family nor residence.' A fitdi
attcr this ibljowed the search which hath hai
accounted for Section 1.
*' !VTore general and extensive measures wot
for some time under deliberation among As
managers, and, as soon as coold be, thij
authorised what had been now and then ncse*
tised by the soldiers with impmiity, tne hflaf
pcople*^in 4he fields in cold blood who woiiM sSI
answer their queries, without any libel, prooesii
or jury, ft would be hard to persuade the pre*
sent or aflcr ages that any snch orders wot
judicially agreoil upon by the council^ if wehfll
not the original records to vouch this, and nidi
I had access to them, I c^onld not «fuily gift
credit to what I had by a general report, te
soldiers had orders to kill in the ficMs, iodtf
most reckoned it was somepaitieolsrwaRaM^
given under some of the manage
were pmeaded for ttds imharilj'i
^906] J^ High Tmum.
jcsiy, anil aMi^rlt thai it U bwfuil to kiU all
ibubi? wbo are implo^rd \xy his majesi};* refiw-
JAg to ftoa^ef u;m>ii ntiU, aiY tkt^rl)^ ifuiliy of
iban I expected when I meV wi<b the onkr ibr
it, standi Dg as a block (luiuk of the cnielty of
tb if time in tLuc rt^islei-s*
"It ii dltc^ctht^v unless to mulie remarks
li{Hia those orders, tUej ilaud falrtrHl lu tlieir
natJTc- colour ; ajul f am aur()4-iArd at tbe ci'Uiti-
dfit> ■'''■*'' . "' *.^ , ; was con-
ic an J vet
Uid I f'l LuiMvi;;!! ai lullof
n>' The council iochueii tu
\\A t the Uw^ei^,, tlu; Lurd«
of rdinaiy steji. ttiid up|d>
Jp 1 . ;r SLJi&v^er lo iKfir quiT^,
H^&i! I ite register tbua I
•* Sd!«rttf/f.— CbAocfllof p Glwovr, Doaglaa,
, liiilitbgQWg Bii1c&ri^«, Yestcjs Lmidui 8<i£rc-
tAr\v R£gu»t4;r« Advocate, J ustk'e -clerk, Castk^
liitJ, Druinelzier, AbbgisbaU, Gosloid.
*^ Her« foHow the Query atid ilMwer, la
gtiren io the tt-xl.
< it being put to Uie vo(a iq coudciI, wbeUter
or nui ?''^' "' '^^ou ^vbo owus^ or dot;* not dis-
own 1 1 Lerous d«daratioD apoa oath,
wbetlici L --^. liavc trow, or not, should be
itn mediately killed before two ivitoes&es, aud
tbe p^jr^ijii iT nersuos who turelo iiave instnic-
ti u Qcd for tbat effect ? Carried
• Tiie lA**iU at bin majesty's pri?y couiicil do
hereby ordaio auy periiou, who oiius or ivUl
> not duu>wn the kte ireauonable declarati^io
^ upon oathf nbetbcr tbey ba? e arms or not, to
I be inutiedialdy put lo death ; tbia beiug
^ alwivft lioDe 10 presence oi* two witneaaea,
' and tbe person or persona bating cotutniisiou
^ froiD tbe council for tbat eUcct,'
<' I aoi infonned, cxtracU of tltl« act id^nad
bv lite cbaiic«'n«it uihai i^if , or clerk, g^tven U*
tii« oiiicers ot i powefs from tbeio
Hl^a given t • i,;s, even so low aa
commtm crntuieU, were rei;k<itied coinmiiaiona
suificicnt iW t)»c(>;eeutinLrof ^m horrible act,
Wbat may be iu ^Xu% 1 «hall nut affirm. I'he
ptojale wbo pa»«si.'d iucb an at^t as tins, could
flanny give auipk* i^uougb cotnfuii(aio«t», if tbey
pleaaeu. Hgwever, it ia cei tuiu, tbat majora,
c^iains, and Holdi«^r«, preteodrd all to act by
vinn«? ot this act ; itnd ttioui^b J Khali not say^
' It ttU tbe mmiJaf» we Kbalt imrl «»tb ui liie
next year, uirt^ coiuinittcd by warrant*
■ - , ■• '^It-'^ -* •'-' .t-t •"-'« c;iti
... 'J-
rot '«?t
Wit '- in
lilt- iif-
ed urii^ . ko tbat
ii|^f}th( ^\thataa
MWii munkia in cold bbiud coiuinatcd bdore
bigb iKfiisoii. and aie art and part of tbe
ir^aaoualiU: declaration )f
Tba Lorda of counsel! and session bavin
this aclf as we baf e noticed, and &hall bear of]
wvv^ ibfereby mads tb« council's deed^ so thi
biooil Ibr itftftol years shed in tbe fields iind
bouses, Ibe blood of many scores ot Innocents,
is all to be charged u|)on tuia unnatural and au-
•ccQUDiableact.
*♦ It is time now to come forward to tKc» com- ,
missions tlie council cave. Tliu iliiy after thii
< - T l^)ody act, Novemlfcr 23, they g^ivc i
n lo try, judge, and execute in th#4
l^.. ... ,, .n^ie Rennuway uud Sluart uttrekdied» j
nud uthers about, rncmioae<l in their ins) ruo '
Uous» An I ahominalc murdci- in cold blood \
mucli aa any, ^ 1 cannot but (<tually hit*
cruelty and opues^ion, under Ute colaiir
kw ; and I could not but be surprised, to ruce
witli such instructiotis agreed on by the couiti* I
ci\ especially when tbey were a puittru l>|f|
w hich tke soldiers were careful it act in oibar]
places of I be country,
" Tbe cornmiHston w itb a Justicttry power ti
siveo to Uic Lord Livingstone, Lord Eost^l
Lord Torphicben, Lieutenunt Murray, 8ir Mark]
Car&e, and Gcorj^e Hume, cornets of tb^l
Ci:uariltf, the Lairds of IWbachlay, Pockennnat|1
Pbttisbaw, and Badds, or any fife of them, tlifil
lord Livingstone, or coBttmanding officer beioM
alnay^ prci»ent4- The commijision is in tb~
orditiury stile of those formerly narrated ; bu
the. instrucuonn ai^t: every way siQ^ular, an
follow under Uir:» titlc> as appears to me, to 4m«]
power tiny of the forcea under tbe cott)u^odui| ~
mficcr, to eitecuU ail those Beveritius.
" luiCTaocTiONs to tbe Forcea to be sent to th
pansb of IinDgalone» Uatbgaie, Torj»bU
cbeo, andCaldetY.
'You iball convocate all the iobabitaab
*■ tuen and women, above foi^rteen yt^ra of i^f
*- within the jarisbes of Livin^slonr, Batbgaii
* Torphicben» Calders, easier, wester, am
*' middle, and ye shall examine every person ;|
* and after the oatb uf alyurtitioo,'' [we shall J
meet with it jusi now] * sucb as take tbe oat/
* you shall disinisB, unless you have ground
*- of suspicion of ibcir gulU/
'Ana if any own tbe late traitcroua deda
* ration, or assassination of the soldiers, yo
« aliail execute them by mibtary eicoutio
*- upon tbe phice.*
^ And such aii refuse to anawer or deronci
* or will not disown the said traltrrous dccla*.
* ration, and the principle and practice of j
* HasMnali<*f liall givethem aliliel in-
* itantly, \ men as a jury, niul lei
^ Uiem jUi^^^ ^Mv.i^, aj)d instaotly execute tb^j
^ sentence of death on sucb as do so reftiae 1
* diikUMu, Or to answer to tbe queslious t»efo«
^ Uietiatdjury.*
'And ve snail sciace their gooda, diTtverinif'^
* as much of ibcin as vtill pay one \ i,
« to sucb mastcti «# either baia, oi
^ tbe test.*
967] Se CHARLES II. Proceedings against Semple^ Wait, and Thamson. [96^
The I/irds Justice Oeuenll, Jmtiee Clok*
and ComiDittiooeni of Justiciary having cm-
siderad the lyMl penewed by his msjeitie'i
Advocate against the pannalls. Ther find the
same relevant as it is now declared and re-
stricted, v'z. That they doe owne, or at lent
refuse to disowne, the traiterouB procianiitioQ
mentioned in the indytnaeoty wbmiy wan n
declaired against his nuges^; andTaaKrliB;
that it is lawful! to kill all tbcoe who are in*
plo^^ed by his majestie, to inferr the ermine tf
treason, as art and part of the said
considered the above written querie, its their
unanimous judgement, that a lybell in the
terms of the said querie is relevant to inferr the
cry me of treason as art and part of the said
treasonable declaration against the refusers.
Sic Subscribitur, — Perth, C. J. Falconer,
Geo. Mackenzie, James Foulis, J. Lock-
hart, Dnvid Balfour, James Foulis, I.
Beton, Patrick Ogilvie, linger Hog, A.
Birnie, George Nicolson, 1. Stewart, J.
Wauchop, P. Lyon.
The priijcipall at the councill office.
* And if any be absent, ye shall burn their
* houses, end seize their goods, unless their
* master, or somo other sponsible man bind to
^ produce them in a competent time ; the mas-*
* ter or cautioner being always one who bath,
* or shall take the test presently.'
^ You shall likewise examine all persons upon
* their knowledge of any accessory to the said
* proclamation or assassination, and such as
* refuse to de[K)ne upon their knowledge you
* shall keep prisoners.'
^ You shall examine all upon their oath
* aneut liarbourcrs, resetters, or concealers of
* the assassiuatoi-8, or such as were accessory
* to the proclamation ; and if any refuse, make
' them prisoners, bring them into Edinburgh,
*■ and cause i^ecurc their goods.
*■ And as to the families of such as you con-
* demn or execute, you shall make prisoners of
* all persons in their families, above the age of
* twelve years, in order to trausplantMtion.'
< As also you shall take the oaths of ^11 who
* compear, that they shall not harbour, reset,
* or conceal any of those dangerous rebels,
* whether pretended luinistei's, or adherents,
* but shall discover their persons, and assist to
* the taking or pursuing of them, and sliall
* discover ulio shall harbour, reset, or cMitertain
* any of them, to some mac^istrjite or heritor of
* the i;rouud, tl;at they may raise the country,
* and pursue them, till they be apprchendtHl ;
* and who will not give oath in the terms ahove-
* mentioned, you shall bring prisonei-s to the
« Tolbooth of Linlithgow, there to be kept till
* further order.'
' You sliull likewise apprehend all the near
* relations of Ninimo, and bring them to Edin •
* burgh lor f-irther examination. For all which
* this shall he warrant to you, and all olficers
* and sol(li(M-s impl^ycd by you. Geo. Mac-
* kenzie, Geo. Mackenzie, .lam. Fowlis,
• Jo. Lockliart, And. Iiamsny, James
* Graham, Perth Cancel. Douglas, Bal-
*fan*as, Livingstone, J. Drummond,
• l.)av. Falconar.'
** I have before inc a large account of the
proceiiure of this commission in the foresaid
five parishes. The soldiers came out the day
before, and charged all, young and old, to ap-
pear before the judges, under pain of deatli.
They sat first at Livingstone, where many
Sueslions were put to some of the people anent
le king's authority, their keeping the kirk,
and other matters quite extraneous to the de-
signed enquiry. The soldiers sat on horariMch^
with their aworda drawn, round aboul tk
country people in the fieldis. Old and infim
l>eoplc who bad not been ' from their housa kt
many years, were brought oot, and those wks
were not able to walk, were brou^t on hono,
and such who were not ahle to sit, were tM ti
one another ou horseback ; none were penmnri
to return till the judges emmined them, it
night, the court adjourned to Mid-calder, aii
all not examined were'ordered to attend theif^
where the people were examined in thecbmcb.
But, passing these circunaStaopes, 1 oolyn-
mark, that all this trouble the oonntry vm
brought to, made no discoveries 1 can hearoC
'* Novemlier 25. * The lords of bis majeil^^
* privy council approve the draught of theolh
* underwritten, to be offered to ail penoM
< whom they or their commissioners M
< think fit.*
** 1 A. R. do hereby abhor, renounce tsi
* disown, in the presence of the Almighty Gti|
* the pretended Declaration of War lately tf-
* fixed at several parish churches, m so larif
Mt declares a war agamst his sacred majcsrr,
* and asserts that it is lawful to kill such ia
' serve his majesty in church, state, army, or
< country, or such as act against the authors «f
* the |>retended declaration now shewn to rot.
* And 1 do hereby utterly renounce, and diaiHni
' the viilanous authors thereof, who did, «
< they call it, statute and ordain the same, uA
* what is therein mentioned. And 1 sweir, I
* shall never assist the authors of tliesaid pre
' tended declaration, or their eniissaries orad-
* herents, in any |K>int of punishing, killing, k
' making of war any manner of way, as I sfail
* answer to God.'
** This is the first shape of the AbjoraliB
Oath, we shall have itjustnowin the prods-
mation a little shortened, and this was new mt-
tcr of severe persecution to the west and sootk
of Scotland next year. That this mic:ht be Ik
better pressed, the council send westlieuMMrt
general Drummond, and, l>esides him,
many particular commissioners in the [
lar districts in the south and west. They are
mostly the persons named in the beginning of
this year, with some few others, some of wSeB
will come in just now ; it is their iusUuttisai
and commissions will be of most nae to tbe
reader, to discovertbetemperofthia period-
*' And December 2. 1 find the ooudl dicci
the Ibllowiog letter to the commMMMitdUi
J] J<^ High Treoipn*
fKk^ff and Temitts t!ie satne to the knowledge
of o»e Assyse. — Sie Subfcribi(ur^ LiiiUihgoir,
J&s. Foulis, I. Lockhan, David 0altour,
Roger Hi>g, l. Beton, V. Lyoti«.
ASSIIA.
iTililatn Galloway, Wright
rOeorge Galbraith, loercbaiit
James Kcr, barber
Joiiri Black, rintner
Charles Murray, mcrchaDl
Andrew Cowie, mcrcbaol
ieTeml di^ilrictfl io the iouthera and weslero
Bhires.
" 2. RigUt HoQourabte ; Tbe kinc'i majesty
^ having gmnied an iDdemnity, February .30|
* last piftt, and tbe eouncU oonsidertng there
* may lie persons within your districtj, who
* may f^ill iu to share in I bat indemnity, and
* tieiog willing none should fall short of it^ have
* want you tbe follovving iuatructioott thera-
* anetiL PtRTiL*
*^ 1 h*fi is the first time I meet with thi^i in-
di'mnity, ihoncjh granted February last. What
M^ere tlje moirv«s iu the ninnas^era to keep it
up till now, I siiall ttol enquire, neither can I
S«*arn fWxii tbe registers it was publiabed at
all. Ill Febi uury or March next year, an in-
flernnity m pubtitdied ut the accession of king
Jutiios, hut till then i can learu of no other
since the year 167 £>. Howerer, they now
dog the indemnity with the abjuration oath, and
put it iotirety io the hand of the commission -
ers, to apply the king's pjirdoo, or not, 05 thev
see cau&e. The instnictioDS will best speak
for themiieUes,
l\sTaocTio?<« for applying his Majesty^s In-
demnity.
* 1. You are, conform to his Majesty's tu-
* demnity, to »et at liljerty, and free all persoiis
* imprisoned, or under bond, by yon not tined ;
* and though they be sentenced to banishment,
^ ihey being under the degree of heritors, fife-
4 rk liters, m aditetlers, or buiigeaeB of burghs
* royul, and vagrant preacben,
• 'i. By vagrant preachers yo«i arc to uu-
* der«t«nd indul^i^d miniifteni, and soch as are
^10 orders^ but not liccns«d according to law,
l^hom vou are not to dismiaa or Uberate, hut
apon their enacting themstlyea, or tinding
ft caution for them, that they shall not
.alter exercise any part of the iiiiniaterial
unction within this tingdome, under the
Jn of live thoosaod mcrks, otherwiiKe find
iutiun under the smoe mim to remove off tl»e
(tngdwin 14 ithio twenty days* and not to re*
I without hecnce, and mean while to live
ably.
'■ rsons already declare*! fugt-
' 1 i\t twenty duys after the date
iiimation, address toyuu,
ptanoe of the said par-
allegiance, or finding can
A. D. 1684.
[97e
George Gardner
Alexander Buchan, vintner
WilliaMi rorieous, mer chant
John Fl«*vniiug, basiter
John Wtlkie, lay lor
Robert Wilsone, merchant
Robert Vouiig, wright
James Brown, merchant
Edward Gunninghame, peniwig maker*
The Aasyse lawfullie awome, no objection in |
the contrare.
' (I* 111
* and \'
I to ImifpOft themaelves out of his ma-
'jesty^s three kingdoms, before the twen-
* lieth day of May next, after the date oi
* bis majesty *s proclamalion, and to live peace-
'ably tilt then, and not to return without li«]
* ceuce on pain of death, yuu are to admitij
< them. I
' 4. But before you offer his majesty's said ]
< pardon to any of the forsaid persons, you ar#]
< to cause them sweaf the late oath of abjura^i
' tion, and that they shall never take up arme |
* apainst the king, or any csoromissionate bjj
*■ him, upon any pretext whatsomever ; and if I
* they refuse so to do» you are to secure them |
*■ in hrmaiice, nnttl you report to the councit, I
* and have further orders ; and you are to givifrl
*- the ordinary pa&s to all such as take tbe said J
^ oath.' I
*^ But to awe the country the more, besidft ]
the former comitusstoners, some are morel
especially apjjointeli to traverse the country I
with aiusticiary power lodged in them solely, j
Thus, Decemlier i, the ctiuncd send lieute-1
nantgeneral Drummond to the west and
south. His oomtnission and instructions will
best shew tits powers,
CoMtttssioN and iKSTEocnoNs to Lieutenant* j
general DRttMMONO,
• Charles, &c. Forasmuch at we and th«]
* lords of our privy council are certainly in-
» formed, tliat there are certain fuj^itive rebeli
■ now in arms, in several places ai the soutbl
* and western shires, who by them^^'lvt^^ iheirl
* adherents and accomphces, du duily commit j
* great abu<;es ^nd insoleocies, to ilie dr!»turb«l
* ancc of our peace, and the diiKjuiet of ouf 1
' loynl people. 1
♦*We^ to the effect that the^e rrigues nndl
* villains may be reduced, do, uiih uihice of]
* our privy ccnmcil, constitute lieuieuant>ge*l
* neral Drummond, master general of our ord*l
* nance, our justice in that part, Io ihe effeol]
*■ underWi itien, with power to him to go to th^j
* said south and west t; hi res, or any partftj
* thereof, wht*re the said rebLU and iticir ad«1
^ hcrrniH do tnostly resfirt, and then and ihere|]
* as he bhdil think ex pt'(|,ieut, to utiix und holA|
* courts of justiciary, call ajinixe^, (kc, (as id
* common form In-furp specitied) and call anj
* of the said rt'l»e]^ or their uithtnenis, or pert]
* aons 8u<ifiect, and cjiu^c pisnc c lie done ottl
* them aci^ording to law and practick, and acttf|
* of parliament of iUi% realm, and iiisiructioof
* given by our council of tlie date thir presents*
»
36 CHARLES U. Proeeedings agmmi Semfk^ il'^iU, and Thommtt^i
John Sempic, pannall, efNr mpcanaff of the | cl«B«ticMi tehkU ««i temA piibltcU^ 6ll 1
Amystf (lectarea k« owned Ibe trcaioiiable pro-
' Promitten. to hold firm and siAbk ; wa^ or-
* dain tbis commission to ceiutmiie aadaidiirtt
* till the fint of Jaauary next.*
IiivnifiCTiONi given with lh« abo?e specf6ed
Commistion*
* 1. YoD are to go to Ibe southern mm! wei*
* tern shires, wher« »ef ersl rebeUaad their ad-
* herents are, or do haunt and resort^ and do
' coBUi»it gre^ ioioicncica and abuser ; aad
' for your aaaistance in reducing and punish-
* ing them according in ^ our comimssion vou
* are to take with you the iorccs foUuwmg'.
*■ Half of the troop of hb raiyesty^alite-guiu'ii,
' four troopa of Cluverhonse^a re^rncnt of
* borie, the earl of Balcarroii, Airly, and lord
* Rosa their tioops, six troops of general Dal-
* 2fers regiment, with two hundred foot ont of
* the earl of Mar's regifiient ; and i%ith thi^m
* vou are to pursue^ take, and apprehend aad
* kill the foreL.>aid rebels ami their abettors.
* '2. You ore to call before jou all such per-
' son«i -vi bo ha^e been in the liate febeUioo, and
* have not taken the beneHt of his niajettv's in^
' deranity^ and tlietr resetters^ as also, alt such
* who have been actors in contrif ing, accessory
* to the pubtisliing, or afir Xing', or do any mm"
* ner of way approve ot\ or allow the bte trea-
' sotaUe |)aper and declaration.
* 3. You arc to quarter the said troops under
' your command, upon your march up and
< down the said slures, eiiher in burgh or land^
* as you shall find most expedient ^ and you
' are to st^Ltle garrisons of horse and foot, and
*■ drai^oons in such places, and consisting of
* sucli ntinibcrSr as are contained in a list given
* you for that purpose ; and to make sucn aU
iterations in the said garrisons as you shall
< tind most proper for the king's service, and
* the peace of the country ; and you are to re*
' quire all sheri^ and uuu^istrates where those
* garriiKHis are to be estahttshed, immediately
« to convene the commissioners concerned to
« provide them, and to certil|y the sheriffs and
* other naagtstrateSf that if tbey prove negU*
« gcfit, tbey will be oon?ei3ed before bis ma-
* jest V '» privy council, and finetl therefore ; and
* if they be negligent, you ai*e to allow the
' fonsea in that case to take what they want at
< Iheijr own band ; and generally, you arc to do
* every other thing necessary, which may most
* conduoe to his oiajesty *s serfice, and the good
* of the country.*
'• At the same time the ooimcil write a letter
to the duke of Hamilton, acifuainting hiui,
that tht^y had sent west lieutenant-genend
Drummond, i^ith a justiciary power to go
through tljc western and southern shires, and
try rebels and fugitives, an J \ agmnt sktilking
prrscins m the san! K whero ho !ioda
ii nect^asar^', to ebi isons, tspocially
lA Ijiacrkabire ; at j; tliat his grace
may cotifeiia the cti is, who arc pco-
pa io providt ihe garrt^ns m iiit all iicci:&tarieik
would nai disowvc tbo i
'^ Besidoa those [lo^cts grant*^ if> th* hni«l
tenant ^i^eneral, oome other re ^ trir
granted to private pefoans, wii< i'l<r«j
take them, to search fur« uid lake :ni\
[H^'rsons in places which the remlar Cofcn
could not so easity reach, Tbiw 1 Bndl
highland host is lirought flown wpoa \
of Rtfnfrcw and Dutnbartoo* tUMfW tbo I
Orbisloun. The cfttnmisBioii 10 a litlle i
therefore 1 insert it Dale, December 8»1
* Charles, &c. Fonisiiiucb a« we '
standing there are several rebels aad fu^
nho do haunt and skulk in the shtreo*;
barton and Renfrew, and that thero oi
ral outed mioisters who reside wiibl
flame, to Ibe gteol diitiirteaco of o«r | ^
if a present remedy he not fUtoa iifntt NT
pretetfttng the ahuses comnittCe4 hf ihrfl
rehels and fugitives, and cutr peopo in
betng debatiehed into disloyal ssij sfci
principles by those outed luioisterv*
* Therefore we, with, and by adf ioo of i
lords of our privy coooeil, tlo yit© i«d g
full power and authorHy to '^^laatu Hi
ton of Orbiatonti, U* }c^y voltiortarrily L^ -^
highlandnien of the shire i ' f Tl in i ibi lou, mA \
with tliem, or any port of them» at oHi
service shall require, to tnarA t» a
of the said shires, and pursue, take^
prehend the said rebels and fti^tma, vafnrt
and skulking persono and tbcir rm^its^ wd
commit them to some f]rfllalM^e or ^ '
they l>e legally tried.
^ And in ease any of tlie sotd neraooofoill
arms resisting and rtfusinj^ to he I
do hereby fully impower the oaid laird of Ol*
bistoun, and those with him, taklll, \
and destroy them, and deliver such <
who shall be taken alive, to uor
»»ebw _
iburgiTit
.!,orlob
1 titiuks&L
iMttliHia»
tnis&ioned othcer of our fot^«>^
in prisoners to the TolboD
order to be brought to a
otherwise disposed of as O'
* And in pursuance of ti^
we do authonze the said lauril u<l
to im[doy apies and iuteUigi!Sicera to ^ «
company with the said rebels and fbgitivf\
as if they were in thetr party, the hiitcris
discover where ihey haunt and are r>m( ao^
if they can, to apprehend and preitiilllB0
unto him for the t^ed foresaid*
' As aUo with full power to ibe said laird d
Orbistoun, to take and app^'^^rr ■ -^f^ aienm^
td' all outed ministers^ v b^ fii«d
within, or resort unto ''^ .«.,^ u^Miil
them in prisoner! t^^ ^ootb of Edip*
burgh, or dcliter Ihciu , m
of our army, to he hronghl in
cortticigly.
* It is aloo hereby prorided, t^ Um! sotf
laiid of Orhistotin takr c^ire ikai tbooe psoQia
imployed by hi it no dioofdtfS^aid
the country thn u they
no damage by tUuu*
97S]
J6r High Tn
A.tt. 168*.
CflTt
Go^riel T^lomton d^are« judioiallie he will
noi <lifiown« the tr»»0DBMe p«p«r rend and
produced.
Jo^n Watt nouses lo iDswer or ilisonne llie
ll«Mfintble fMiper produced, — Sic Sulttrrihitur^
, linKlhevw, Ja. FmiliSf 4* Lockbart,
Darid Balfour, Roger Hog*, I, Bctoo,
P. Lyon,
* And for the better encoafigemeiit of th«
* said I&ird of Orbistotin, and those wilb him,
* we indeisuily him or them in case of rerni-
■ ance, whcre*peri»on« may be killed, wpunded,
* or mutilated, and for conveniifi|f with rebdi
* and fug-itiTCs to the mds foresaid, and from
* all piirsuitf crimioal or citiI io all time com*
' ing^; auii do declare this onr ioderanity to him
* and them, to be m sufficient and valid as if
' the same were under oor hand and g^reat
* seal ; And this onr commiasion is imm«-
* diatety to b^n^in and take eflWet, and to cooti-
* nue and endure till we or our privy council
* shall recall tite same.'
** The hardKhips and difficulties the [»oor
people in the west and south were broujjhl
under by this anny s^ut u[>o« them, are inticcd
inejtpressible.
** At length, DccembfT 30, after all those
ttrps taken to harrass and persecute the court-
try, before any previous warning mvtn to
Ihcm, of the dao<^r of tht societies ApoHSfneticsat
DeciamtioD, and the necessity of the laEtng of
the oalh of abjuration, wtieh, one would
think, oug^ht to have been the first step should
hare been taken « the council emit their pro*
tflatEUition against the declaration,
** 1 can scarce doubt, but some of the ma-
tiaf^ers knew tlie nature of the meetings of the
ioeicty^s people : fiartstoun had given a very
ftir account of them, and yet they take it for
granted, their iellowshipa aiHl societies frjr
prayer and conference, were a form of civil
govemmeut, and lerelled at bloody and assassi-
nsting designs, I am apt to believe, some of
the managers knew other things, though they
■peak thu«,
*^ And upon thin Iklse supposition, the iiro-
•lamation onlrrs nil that do own this declam-
lion, or do not disown it, to be tried and exe-
cuted to death. And that this was hard« will
sppear, not only from the scruples we have
hVirtli against oWninj^ or disnwnm^ things, at
th#» ordiT nf I he p^rsi-rutors* but *vill be yet
pkincr, if we charitshly ^ujamae, wliat, they
My themselves, is true, that they were dfiven
to tliiK hut shifi nrsi frorn any tfesipi of OOTiaj<»-
•iii th«yaihhor, but merely
in fmy'advaBee niiich to
rove^ li ;i'itions {JO no further. But
leave e *:-^ itt Uiriuiclve«,
" Thiv i . I many poor country
people w*»nM a their pap<^, T>ot Tnun
tlj< a to the (irinciples the pro-
cli> of» but tiertiusc thry ima*
r, was a dis'
oplt, and au
Fothmrei the Verdict of Asyse.
The Aasywe having twice chosen and elected
George Galbraith Chancellor, They all in on«
voice find John Sentple guilty of owning ih«
trea^ionable paper and proclamation mentioned
in his dittay. And finds John Watt and Ciahrtel
Thomson, pannmla, guilty of their refusing to '
disowne tlie traitorous papor^ conibrme to iha
approbation of the cruelties and hardisliips put^ i
upun them ; and it was certainly unaccountable
to butcher multitudes of them luerely for iheir
opinion, and that in a ver}' few nunutes, t
may take notice further, that the councd, or
rather criminal court by their direction, fount!
the not grvihg poor country people's opinion
upon this paper, suflioicnt ground to ei[ecut# ,
them, even befora this proclamation ; and th^
proclamation onters a trial niid ex^ution upon
the liack of it : hut the sold id's would not in*
sist upon this nicety, hut wherever they found
people who would not answer their questionsif
the}' immediatety di^atched them ; iind ni
this the act of council appears to warrant ihein^ i
thoucfit I do not oliserve tliat the proclatoatioci
"It ficeds scarce be remarked, that the pro-
clamalion involves the whole suligects, in a!;sis-
tance to magistrates and army, in tliose severe
courses, which was hard enough, but now very
common, and then under a pretext too, to eaaa
the country, whereas it was really to invoke
them. All above sixteen years are oidiged to
have passes of their loyalty, and theae wer€-^
only to be bad upon their sw'earing the abjura-
tion oath, as in the proclamation.
** I shall say viriry Httlc upon this oath \ the-
niofe frequently oaths, and that in different
shapes, upon every new turn, be imposed, the
lejis I hey are for the real security ol* a govern*
ment, and the design of them is lost. 1 uwog,
for as short as the oath is, it runs very Od^N^
to me : the swearer disowns, in the preaeoce^A
God, this pretended declaration of war, in as far
as it declares war ; and it seems to need expU*
cation as well as come parl« of the test, and
many things might hinder persons to sweat
such a proposition as this, vyho were heartily {
ag^ainst assassination ; and yet all must have <
thiy ]tans, otherwise most be reckoned cimcutrers
with i\\ii said execrable rebels, and owners of
tlie said declaration. This made a shurt pro*
ceis« and, for any thin^ 1 can observe, all wh« <
wanteil « ^mss, mi^ht be murdered by the ii
s^itdier who nset them ^ and every mm who Vi» '
fused to concur in harassing those poor peopleLi
is to be liekleii •■ guilty as the leteseis ; end J
all t»ereeiMei)d pillbc hoMaB^wbomiert^ttJiny I
wnntinj^r this poM, ere laid tuiflerihe pains of
being {ninitlieil es reit title ef v^bclit ; end
evrry body who in rrquired (by au o«tlcr» ciTi
i!«bl«* ke*»|»^, for sr»y ♦bin2f I WwJw) to mm
t le, eciiMtdo tt;,^
V i^laose fMoiilittr
u> \uiH umv, awl no whcpe ^Im to bo fbund.
And (aithr, the {ireiluiiliei efce ^OD nerki
975] 86 CHARLES II. Proceedings against Sempk^ Wait, and Thcmsont (97(1
Lords Inter1o<|uitor. As witnes my hand, day
and date Forsaid.
Sic Suhscribit ur^ G EO . G albraith .
the diHcoverers of any that had accession to the
societies paper, or any of the members of the
societies or fellowships. Their price is much
fallen. We have seen 9,000 merks set upon
the discovery of an intercommuned minister,
anti 10,000 merks on the archbishops asssas-
nators;' and yet but 500 merks now is put
upon the alleaq;ed patrons of assassination.
" Nobody can be more fur a gfovernment^s
discouraging all things which tend to assassi-
nation and murder than I ; but this is an odd
way of doing it, especially when disclaimed in
the paper itself: and every body must observe,
that the former orders and this proclamation,
did, in the ^vent, open a wide door to multi-
tudes of munlers and assassinations of some
very pious persons, as we may afterwards hear.
** In short, the managers took occasion, from
this unhappy |>aper of the societies, terribly
to renew their oppression of the country, and
maliciously and slanderously to charge it upon
the boily of suffering Presb)'terians, who, as
they knew nothing of it, so were very far
from approving it : yea, the reader will find
tlie soc^ieties themselves, afterwards, in the in-
Ibrmatory vindication, disown it as a declaration
of war, almost in the very terms the govern-
ment require it to be disowned, and asserting,
tliat in tnis paper they acted merely ad ter»
rorem, and for self- preservation, and expressly
disclaiming all authoritative and magistraticfu
power : however, dreadful was the havoc and
trouble the whole country was brought under
for it.
** This will in part appear from the com-
missior given the same (lay the proclamation is
emitted by the council, to great numbers in
•very shire almost, to hold courts, and bring
every body to trouble, and the instructions and
powers granted them, which I shall next inscil.
The execution of those com'missions will come
in next year.
" December 30. The council give the under-
written commission to the persons named in it :
Commission.
< Charles, &c. Forasmuch as, notwith-
< standing all the fair and legal methods used
* by us and our privy council, for reducing
* those who have oeen debauched with schis-
' matical and seditious principles, yet several of
* them do not only continue in their former ir-
* regular pi-actices ; but also considering, that
< several desperate rel>els and fugitives, who
* have been still reset, sheltered, and supplied
* in the country, since the year 1679, have now
* of late erected themselves in a mock form of
* government, do disown us, our authority and
* laws, and have declared war against us, and
' from that do infer, that it is not only lawful,
' but duty on them to kill us, and all who serve
< under us ; and yet such inhumane monsters,
< itIm III punuaace of their traiterous declara-
After opening and Mdimt of the whilk
verdict of as!$vse. The Lords Justice GeneraU,-
Justice Clerk, and Commissioners of J na-
tion, are daily committiDg' bloody and exe-
crable murders, are sheltered, supplied, resell
and connived at in several of our ahires ; and /
we beine fully resolved, that those accessory
to the late rebellion 1C79, or who restt any
who was there, and that those bloody
wretches, and all who any manner of wit
have harboured, reset, sliehem!, soppUeJ,
connived at, or has seen or heard of soy of
them, and hath not given timeous adveruie-
roent to our nearest magistrates or offionsof
the forces, or bare not merved the present
of our laws against irregularities and disorden
in ecclesiastical matters, should be brought Is
due and condign punishment : we, with coa-
sent of the lords of our priry coundl, bsTS
thought fit to ^nnt our full power, authority,
and commission, to the persons afhsr-oMs-
tioned, for i^rosecnting the persons gnibj flf
the said cnmes, in toe bounds and nnasB
after specified.
'likeas, we give and ^nuit full noufsrasd
authority, and commission, to John esrl«f
Carnwath, William Hamilton of OrbtMss,
Cromwel Lockhart of Lee, John Jshsstoii
provost of Gbisgow, and James Land|y of
Strathardly, for the shire of Clyd«hle,tl«
said earl being convener.'
' To the earl of Glencaim, lord Codma,
lord Ross, tlie saki William Hamilton of Of'
bistoun, Houstoun yonnffer of that ilk, aid
John Schaw yonager of Greenock, for tbt
shire of Renfrew, the said lord Ross coa-
vener.
' To lord Bargeny, Blair of that ilk, w
Archibald Kennedy of Colzean, sir Willian
Wallace of Craigie, Hugh CathcartofCaii-
touu, and Robert Hunter provost of Air, fa
the shire of Air, the lord E^rgeny ooovcDir.
* To the said Wro. Hamilton of Qrbistoai,
the laird of Loss, major-general Ainot, lies-
tenant-govemor of the castle of DumbutA
the laird of Ardincanle, and John Grabsm^
Dougalstoun, for tlie shires of Dombsfts
snd Stirling, the said laird of Oihistoun bciiK
convener.
* To the earl of Anandalc, sir Robert Dslatl
of Glenae, sir Robert'Grierson of lag, ar
James Johnstoun of Wester-raw, TIkmui
Kil|»atrick of Closburn, and Itobert Lawiieof
iMtixweltoun, for the shire of Nithsdale id
stcwartry of Anandale, earl of Anandale cvO*
vener.
' To John viscount of Kenmuii^ the s»l
laird of Lag, David Dunbar of Uaklime, sr
Ciodfrey ]\l*Culloch of Sliretouu, and Mr.
David (ji-abain sherifi"- depute of Galkivsy*
for the si I ire of Wigtouii and stewaiiry ^
Kirkcudbri^^ht, Kenmuir conveuGr.
* To the lord Jedburg, lord CranstoOi
3I'Doual of Makerstoun.sir William Doo^
of Cavers, sir Wm. Ker of f^rmnhfsd. sr
Wm. EUiot of Stobs, and Wm. Ker of Chtfi^
\
077] .^^^V ,fif l^g^ TreAStm*
ticitry, hariag' corrsKkred the verdict of fts*
i^w. They tbeHor, be the mouth of Jiunes
for ibft sUire of Tefiotdale, lord Jedbvir^h
A.D. lG8i.
[978
* Tu JoTin niditel of Hmyningt »ir Francis
*- lie, TJio, fScot of Wbiteslaid,
s lit ol' Siiicli*-!, Jame« Murray
ri nifCTt furiiic shire of Selkirk,
U > llAynliig convener.
* Aii^l;»o to the cotumanditig ofiicer of our
g&rriionsiia the resp^cli? c bounds and shires.
* To meet and convene at the head burgh of
ibe revpe^^tive shires, and tlieir fijr^ meeting
to be upon the IJyth day of January next ;
■od in case of absence of the conveners
ttuned) with power to choose their ou n con-
* Appointing them, or any three of them, in
liw foresaid shires and bviunds respectively,
la proceed againsif punijih and sentence, ac-
cording' to our lawa, auch persona therein as
they abalt find, by their own conieasion, or
other le^al probation, puilty of brinsr present
at house or field-conventick'S, withdrawing
Irotn public ordioaoces, disorderly marriagea
and baptJ«in4, and other ecclesiaatical dia^
* And we do further appuint the foreaaid, or
their tfuorumy within the respective ihires
and bo 11 nib, to be oor justices in that part,
with full power to meet at such times and
placea as they aball tind convenient, and ihen
and there to affix and bold courts, kc, (aft in
common form) and this to endnre until the
tut i»f March uexL'
«* January 13, next year, I find the f *onticiI
add antrther commLisiou to the shertfl' of i)er>
wick, * to tir AreUibald Cockburn of Lantnun,
• air James Cockburn of that ilk, Uume of
* Linthill, and Mr, Charles Ilurae of Aytonn,
* with the earl rif Ffume their convener.
* And to sir Archibald Murray of Bbek-
• barony, David Murray of Htcnhope, James
♦ Naamith of I'osao, James Geddea of Kirkid^
< Bksbard Murray of Sptttiehaugb, and WW*
» thm H«/r«*b«f L'h of that ilk, for the i^hire of
< Pieeblca, Black-barony convener.' The day
^ibfHT useeliog' is January 'J2.
** The Council* with tliis commisaion, gave
fary parti^nlar instruction^;, uhkli Je*
a room likewise here.
IxiTEOCTiONa to Comini'fsiorjers tu mcci Ja-
nuary laih next.
* 1. Yon shall mivt together, three bring; a
* ^ttorifAt, the i5th day of Jaiumry, nnd uc-
' Ooedinff to the procliunation, e\ 'in
* CBPoh partKh on oatli, upon the i ics
• «ontair Ml, And till twclmr
*jf9ilfi' .<L» ^ pturisiL ii secure
• andi 9% in u%r, and each oi likewise
• gtve fmutea, in the larma oi ^tuation^
* ?' - -Hi aa diaown tho**- '' ' "
J f any pcrtoti « do
^ r ,t liiown them, t buy ^ . ._ j_:,^-_ _.,-;i*i
pihr«»c« And yon' nusl luiOMKhateiy giva
Job nf tonne, dempster of courts decerned and
a«yndged the said John Semple, John Watt
them a Vsh*^ ^ivi n^» names of tlu* impit^t and
witne^L being' foimd tj^iiiUy are t0 1
be \mniri' i: (cly in the place, accord^
ing to law. but at tfiis lime you arc not id
* examine any women, bnt such as have beeil^
active in tiie Bntil courses in u si^fual manner^ J
and those are in be drowned.
'3, You are to proceed a^inst the absent i
raen, not by denouncin;T them rel»e|s, but hy ]
holding them as confest upon a pecuniary 1
mulct, and they liein^: thereupon decerned, I
' conform to the king's letter, their moveable^ ]
are to be inicntared ami fiei|uesirate.
* 4* You must proceed against all who aro ]
' guilty of bavinq- been at Boihw*-!- bridge, or ]
were in acceasioo thereunto, except they hav« J
taken the iademnity ; but you ai-e not to [»hi* J
' ceed so summarly, but give them time. And]
' if they take the test, and be very penitent, Idll
' them And caution, or enact themselves to ap^ I
pear when called,
* 5. You must likewise pn>ceed against he
' tors guilty of clinrch-disordcrs, since their j
' former tiuing. And if any have not beed
adecjuately fined, you may proceed again^l
' them for tlie superplos.
*' (}. You may examine iritnesses, as you se#1
cause, against such as are given in the Hstp]
to be pursueil before the partiamcnt,
* 7. if you find probution agHinsit herttt _
^ not yet Jclated, you may uke thera before]
^ you, both as to the rebellion, and tlie l&te couVl
^ apiracy. •♦f
'8. \'ou are likewise to cauao the w holt 4
' nack-tnen, c^getii and drovers, ^vithin th^i
^ bounds of your sbire^ tind caution uol to carry' 1
letters or intelligence to the rebels, or to sell IM
^ them, Or give them ammunitiooi or anpplyl
' them any other maimer of way. * I
* 9, Yon are to cau^e the witole merehanCttl
* of yonr shire, who have any powder, l^d, of]
' any sort of ammimition, or irere in use to sell j
the same, ^ive their solemn oath as to th^I
<)u?itt**- ' ^jiudity thereof^ and lind sufit^ I
tira hat tiie same shall not be giveml
ors^M,. .1/ .\,.^ls. And if they fail to give th«]
Raid cautioDy all the ammunition is to be
^ loured and taken froiu tfacm, imtihbe same hm '
culled lor by the master of the ordnance, aod
brought toliis majesty's magazines.
* lo. If the foresaid pack-men and other i
wandenng persons in your shire, shall no^l
compear, and shall refuse to find the foresaid
^ caution, that by order of the said eommis*^ 1
' sinners their packs be seized, and ihcir perHi
sons secured till further order from thn]
' Council.
* 11. Yoii shall call for, to yonr aanrstnne
* such parties nf horse or toot m you '■■'-
' as yon shall ha?e occaaion for, wl
by ordered to obey you. And s * ;
meet at snch conrenient times an<l ; s
' may hm most lor llie ease uf the jft , ,
** 1 mrei with ovanrc in tb« Rvgistcrs rcl»-
3H
979] S6 CHARLES 11. Proceedings against Semj^, Watt, and Tkamaom, [960
and Gahriel Thomson to be taken to the Gal-
lowlie betwixl Leith and Edinburf^h this pre-
sent ai\ernoon, betwixt three and fy ve a'ciock,
ti?e to this Declaration, but wliat will come in
next year, under the rigorous execution of
those commissions and instructions, unless it
be that, Jaimary 9, the Council im power the
ma^trates of burghs to tender the oath of ab-
juration to all concerned, confbrai to the pro-
ckmatton.
** The last thin^ I promised in thi» section,
was to give an account of the criminal prose-
cution heio^e the justiciary, and public execu-
tions of sonie country people, who refused to
disown this paper of the societies, about which
80 terrible a oustle was made. I shall first ^ve
an account of their process, from the Justiciary
Registers, and then gi?e some further hints of
Ihem from some other papers.
** December 8. George Jackson, Thomas
Wood, Alexander Heriot, James Graham, and
Thomas Robertson, and with them Patrick
Cuningham, John Watt, James Kirkwood,
Alexander Vallange, and James Glover, are in-
dicted, * That npon the 28th of October last
' bypast, they did emit a most barbarous and
' heUisli prochimation, that th^ would begin
' their assassination and war. Upon the 9th of
* November, afler the promulgation of this
* villanous paper, and this paper having been
* posted upon the kirk-doors of Kilbride, Lin-
* lithgow, and other places, the panaels were
* taken, and at their examination, owned ilk
* one of them, or would not disown that paper
* upon oath, in so far as it declares war ac^ainst
* the king, and that it is lawful to kill the king's
* officers oi'state,counsellers, justices, soldiers,
' or informers, or declare, if tiiey had any hand
* in emitting uf that paper. Wherethrough ilk
* one of them are guilty of contriving,'eiuittiiig,
< and publisliing the foresaid treasonable Dc-
* claraiion, at least are adherers thereto, in re-
* fusing to disown and disclaim the same by
* oath, and ought to be punished with forfci-
* ture of life, land, aiid goods, to the terror of
< others.'
*^ The five last named, as in presence of Al«
nighty God, renounce and disclaim the princi-
ples above mentioned, at the bar, and their diet
IS deserted smplicHer, The diet against the
other five is continued till to-morrow.
** December 9. The Lords fiud the libel re-
lerant, viz. That the pannels own, or refuse to
disown the traiterous proclamation, whereby
war is declared against his majestjr, and assert-
ing, that it is lawful to kill those imployetl by
hia majesty, to infer the crime of treason, as art
and part of the said treasonable paper, and re-
mit the same to an assize.
'* The probation adduced by the advocate, is
the pannels judicial confession in the court
yesterday, whoreby they refused to disown the
said paper when read to them, to which the
pannels adhered, and disowned the king's au-
thority. Alexander Heriot disowns Uie procla-
ms^i^wi, and ai the bar acknowledges upon oath,
and ther to be hanged on a gibbet iiU they W
dead, and all ther lands, herctages, goods ani
gear whatsomever, to be Ibrtiiult and escheat to
that it is not lawful npon any pretext what-
somever to rebel a^inst bis majesty, or any ia
authority under him; and the diet is dcsotei
as to him, Mimpliciter,
«< The assize bring in the other foor gnihy,
by their own confession. And the Lorn sen-
tence them to lie taken to the Gallow-Iee this
day, December 9, 'twixttwo and five in the af-
ternoon, and hanged.
** Thus this matter stands in the lleooids. I
have some other hints as to those good mcsi
from other papers, which deser? e a nxnn hcva
George Jackson lived in the parish of Esit-
wood, and we have heard that this ferrcsl
zealous countr}'-man was taken ait Gla^^,
being overheard praying in a bouae. AUdb
after he was seized he was carried bdbre Iba
bishop, and by him examined upon sefoil
qucsuons very captious. It noay not be nsft
to point at some of them, tliat the reader may
have some further taste of the bloody and bitter
temper of the prelates, and the methods tb^
useu.
*< The bishop asked him, if he was at Bolkr
wel-bridge. He answered, Yes. He wu
next asked if he was an officer, and said, Nt ;
for he was but sixteen years of age. He
bishop then asked him, if be was at Bothed
rebelbon. Geor^ answered, he allowed hia-
self in no rebdhon against God, The biibif
asked, if it was rebellion against the king. The
other said, he had answerra that already. Tke
bishop asked, if* he would prav for tlie kine.
Ue answered, he reckoned it Lis duty ibr SBl
within the slection of grace. The bishop ask-
ed, is the king within the election of grace, «
not. George answered, if you were such •
man as you pretend to be, you would not tdt
me such a question. Then he was asked, if he
owned authority. lie answered, he owned tbt
king and infeiior magistrates, in as farasthef
were a terror to evil-doers, and a praise n
thciii who do well. The bishop asKed, vt
they not so. George answered, when the Lorf
Jesus shall uil Judge, they, and you, and tin
like of you, will count for it« whether you to
or not. He was asked, if the bishop's detfh
was munter ; and answered, he was not cos*
ccrncd with those matters. The bishop Id
him, with saying in a considerable heal, Sr,
the boots will make you free in your answers
*' All the last winter he was kept in tbi
irons, without any fire ; and Mav last be mi
carried into Edinburgh, where bemg called be-
fore a Committee of the council, be cane m
with a bible in bis hand ; perhaps he would ml
leave it in the iron -house, and had none to gin
it to till lie came back. 1 would not notice tibii
circumstance, were it not to disco? er the jeer-
ing scoffing temper of tire |)enecirton. H*
advocate savs when he came near, there esvei
he and his bible, let us see whm the fent ii*
George calmly amwiied, hm wm not a WH^
981}
J^T High Treaum.
A. D. 1684.
[988
^ur BOtercign lord's nse, irhicli vins prmiunced
for doom.
FouDlatultaU's account of the procecdingTs
«^aiusi thrst* iliree persons is iiiji^rted in &
Nole, TuL 10, p, b46.
*♦ Upon Ihe 14th day of Nnremhcr, 1684,
VufieretJ John Watt^ in the parish of Kilbride,
Icr, Put up your bililr, «ys the other, we are
not for prparhici|!f at t\ti% time. He anisvrcred,
lie wa««*l come Ui jirc aclu but Mnce they in-
mted upon hii; Nhlc's W'hxc ^n liisi hand, uhich
'wts no cHrite^ he wisherl tWy would make it
liw pule whereby lie wm to be jmlged; for
they would ere long' Up judg^l by ti. It i^as
repliied, he was now come to be judgeil, and
not to judge them. And then tb<^ ordinary
questions vi^ere put to him, wliich he answered
much the some way nn hImivc to the hi^hop,
*' He continued in the iron* (il) the hustle
about the KH'ietit^ papt'rf and then was jiosed,
if he owne^l that decla ration. He answered,
m» far as was ag^reeable to the wtird of tiud ',
hm be allowed of no murder. The council
remit him to the Justiciary, where wc have
henrtl his sentt'oce. He died ia much comfort
mud serenity.
*» Thomas Wood, we formerly ljeard» was
tbken after the rescue at Enterkin-path. I
have betbre me his account of his examination
under his own band. November 12, when tbtr
maDae^rs are in a rage upon the societies de*
daratioDf he with other** wtre called in, and
iiad that paper read to them ; and Thomaa was
asked what be had tr» fmy of it, ]li» nuHwerH,
he never heard of it till now, and could scarce
understand it^ the clerk read it ao fast* He
was asked, hut do you ndhere to it. He an-
nwercd, as far as it is afyreeablc to the m ord,
hut n(» further* But, added they, the Cove-
nants are rn it, do you adhere lo the &«•, Hu
answered, I do. And, aiW some «|ii**«iOiis, if
be was at Bothwel, or Airs-moss, where he
was DOi, be was dismissed.
** James Graham, lay lor in the parish of
CorBmichael in Galloway , when coming hume
from his work to his motlier^s house, he wa!»
^▼erlaken in the hig'h way hy Claverhonse and
a party of soldif'rs. They knew him not, and
hiCd nothitH^ to lay to hit dliarsfe, but searching
him, and Ciudin)^ a bible in his |K>ckei, thfiy
took it ujid his toolK from him ; and, without
askiDLT ur)v more t^ueslion'f, no doubt reckoning
lii id (i^rson, earned him wiih thim
|fi k t>''ght. From thence they took him
to VVigioun and from th«ncc to Dutnfries,
Inhere he wiw wime time m the iron*, litrctiuse
he would notan^vter their inlerrof^atories. He
WIS in a little time taken in to Ediiiburgii, and
qtHssliotied upon tlie decJamtlmi lA the MK'ieties,
mod fi'fuiiing to answer, was eondcmutfd, and
^icd mo«t comfortably.
♦» Thoma* ltolT<?rtJMMi had ileil out of the
oouth country, and Uve^ aome time al New-
CMitlc s he wfts ihtra inptiMPitd upon hin re-
«nd John Semple in the parish of GTasaart ;
whose fttaliniouies {ii' ih^y be extant) came ndl '
to the hand* of the publishers of this collection 'H
only it ii certain from their indiclmcuts that!
thry died lor their adherence to the sam^i
truths, at llie GaJlowlee, which was in thai
twilight of ihe etenihg. While they wer#j
singing the llih section of the cxix psalm, psur*
tieularly these words in the 84th ver^e, < HoirJ
fusing to take the English oaths. By soma I
means or other he got out of prij»on, and caiual
to Edinburgh, where, at the general seai-ch4
November last, he wbs taken ; and, whcB']
brought before the council, he was soon en-
snared by their interrogatories, and remittedl
to the Justiciary, where he was condemned wiiM
the rest. By his last speech be appears ttt|
hare lieen a serious pious man.
** Thus we see, none of those persons weraJ
or could be concerned b the societies paper^f
they being in prison and else where at ili«
lime, atid since : 3'et precisely upon their rsfu- 1
sing 10 judge about it, and condemn it, they araj
sentenced, and die, to be a pattern to the soUj
diers ia their more sumroar sentences up an '
down the country, or to satisfy tlie preseo
rage the managers were in from the societia
paper.*'
In tlie Cloud of Witnesses is ^iven a fullerl
account (abstracted, ai is there saifl, out of biT
own Letter^) of the * laierrogaiioas of Gaor]
Jackson,^ as follows;
** At Glasgow aAer he was taken, and ha
been asked some few questions hy them wt
a|>prL'tienJed him, he was brought betbre ih
bishop of Gln?ii£ow, who interrogate him thusj]
— Q. Wlial now, Mr, Jackson ? A. I
never a scholar. — Q. Can you read the bible 1
A. Yes. — Q. Was you at Bothwell-hridge J
A, Yes.— C?. W hat arms had je ? A. A hal*1
bert staff. — Q. Was ye an ofhcer ? A. No, I
was but sixteen years of age. — Q, ^Vho was
your captain ? A. A young man. — Q. How
calknl they him ? J. I am not hound to give
an account to you. — Q. Was you at Bothwe"
rebellion, or not ? A. } allow myself lu no ra*!
bullion against God.-^Q. WheUier was it re*
belliou against the king, or not ? A. I hare
answered that qttestion already. ^ — Q, Would
you gotoitrtgftin? A. The question is hko
yourself, 1 know not. — Q. Will ye say, God
save th« king ? A. It is not in my power to
«iafeor condemn. — Q. Will ye pray lor him f
A, 1 will piiiy for all within the election of
free grace. — Q. Whether is the king within
the ete<'tion or not? A. If you were die man
you profess to be, you %tould not ask sach a
oucstion at me*, ilhelongsonly to God. — Q.
i>o you own tlie authority as it is now esta-
bibhed ? *4. No, but I own all authority, so
far as it is according to the written word of
God, — Q. I>o you own the king, and inferior
magistrates ? A. In so far as they are a terror
to evil-doers, ami a pniise to them that do well*
—4* Are Ihey not that f A, When Uie Loi^
S83] 56 CHARLES 11. Proeeedingt against Setiiple, IVaittand Thornton^ [9M
* maDy are thy senrant's days? when wiH thou
' execute just juilgment oii these wicked men
' that do me |iersccute?' The soUIiers^ made
■uoh a hellish noise, and turned back sci upon
the people that were spectators of the ac-
tion, that the people verily conceived they
should havo been tn>dden down and massacrccl
on the spot, which occasioned all to flee, ao
that none of tlieir Christian friends durst stay
to do the ]ast duty to theai> in dressinf^ their
^ead bodies, hut they were left to the insolent
soldiers' disposal.
^ A Copy of a Lette^i written by JounSemple
in Craig^thom, while in Prison. Directed
to his Mother and Sister, who were tlien
in Prison.
*< Loring 3Iother and Sister ;— This is to let
*■■■■— — —
Jfesus Christ sliall sit judge, they and yoo, and
the like of you, will count for it, whether ye
be or not. — Q. Is the bishop's death murder,
pv uot P ^. If your questions be upon these
matters that | am not concerned with, I will
keep silence. Then the bishop asked him con-
ccruing some papers that were found in the
room where he was apprehended ; he refused
to answer any further ancnt them, haying an-
swered the same question in the guard to
those who took him. IVhereat the bishop
enraged said, Sir, the boots will make yon free.
To which the said George replied, if my mas-
ter think Die worthy of them, I will get them,
and if not, ijt is in his power to preserve me.
-r-Q. Will ye subscribe what ye have said ? A.
No.— Q. Wherefore will ye not ? A, Be-
cause it is an acknowledgment of your unjust
laws. Aficr this hu was traDS|>orted from
Clasgcw to Kramiale on the I»id's day. He
relates io his letters, what sweet joy and con-
solation he had by the way. Aficr his having
gone about the worship of God, in presence of
the soldiers, who at first kept on their hats, but
afterwards ere he bad done, uncovered ; in
came one Bonsay their commander, and said,
prepare you for a bare horse hack to-morrow,
and your heail and feet shall be bound liard
and f:u»t together. George answered, it is not
in your power to do it. iions^y said, I will
let you know it shall be in my )>ower, and of-
fered him the king's health : he refused say-
ing, ] :mi not ilry to drink healths, esf>€ciafly
on ihe Lor<l*s uiifht. To-morrow when they
were set on horseback, Bonsay causeil sound
a trumpet, holding it to George's oar, and said,
sound him to hell; at which the martyr smiled.
So tliLv came to Edinburgh upon the ISCh of
Way, 16^4. Being called hetore a committee
•f the council, he came with his bible in his
hand. The advocate jeeringly said, there^s
liiui an<l his bible ; come away, let us see
-where the tixt is. George answered, 1 was
jiever a seckir out of texte ; ihat is the proper
xrork of a muii^ter. Then the advocate said,
jput up your bible, for we are not for preaching
4ayy«time. Jtemuwsrvd, 1 mi^oCQNQeto
know, that that day whidi I was brought
to the Tolbuoth of Canongate, and we vcrp
put into tlie irons, and tlie shackles put upon
our armrs, and to-roorrow about L-leven o'clock,
I was brought before the GQancil« and ther
shewed mc the paper which was found opal
the crosses and kirk donra, and they asM
if 1 knew it ? I answered, what knaw I whst
is iu that paper? The duke hatriug it in kip
hand and the rest of the council beiie him lad
it to me ; he read some lines of it, and then wi
to the rest, it woukl uke a long time to nii
They ofieied to give it to me to read, and pie>
inised me time to consider it, if 1 would giw
i"y judgment of it. A, I will not have it. Bo-
ther will I be judge of papers. — Q. Own ys
the king's authority, as it is now < — *^*' *^'^*
A, I own all authority, as is agneaUs H
the word of God.— 4{. Will ye own thispa>
■ ' " ^
preach, for I never could ; but. Sir, tbisiilkp
word of God, whereby I am come hcKis W
jud(>;ed, and I charge you, and aoft only yn^
but all of you, that as ye shall answer u ssi
day befcre our Lord Jesus Christ, wbcs W
shall sit and judse betwixt the just and tbs sir
just, that ye judge me by whial is writtcsii
this holy bible ; otherwise remombcr ye^ Mi
ye do it not, I shall be a witness against ya^
To this they returned, that he was oome liki
judged, not to judge. And after a wbils's %
leoce, when lie demanded who were his a»
cusers, the advocate replied, 1 am your s^
cuser ; and interrogate him thus :~-^ If «
you at Bothwel ? it. I have answered that it
my fhst examination. — Q. Put, said the s^
vocate, you must answer it now ? A, h, bd^
criminal by. your law, you must prove ii
— Q. Do you hold these that were thcte m
rebels ? A. 1 allow myself to be amonif ao n*
bels ; but whom call you rebels ? The aip
vocate said, these that are rebels to the kiif:
George answered, ii'they be not rebels to M
the matter is the less.T-Q. Do you approve «
them ? vi* Yes, in as fares they were te
Christ and his cause. — Q. Do you allow youiv
self to rise iu armA against the king ? J. Na
— Q. Wherelbre then did ye rise in anus?
A, I have warrant in the word of God to rat
in arms in delence of tho gospel, and work of
reformation, according to our soleino eume-
meuts, wherein we aresworu to uphold aai
detcnd to the utmost of our poner the workrf
reformation.— Q. What are ye engaged tabs
a^jiamst your king ? A . You lieard not me saj
that, but I said I am for the king and all si^
tliority, as fur as they are for the work of Gsd,
but no furtlicr. — (^.*Do you own the present
authority P j1. I own no unlawful aulliarity.
— Q, Will you take the bond of regldBlisi^
and you shall win your way ? .^« I will hifl
nothmg to do with you or your bonds cither.
Being desired to subscribe what they hid
wrote down $m hii pMifcaahMi-h^irfaM^ »»
«87]
1 JAMES II.
Proceedingi agahui Benkolme,
[gs8
344. Proceedings against Denuolme of Westshiels, and others^
for Treason and Reset of Traitors : 1 James II. a.d. 1685.
[Now first printed from the Records of Justiciary at Edin-
burgh.*]
CtRU JusTiciARii, S. D. N. "Rfgia, tenta in
pretorio Burgi de Edinburgh, df*cimo
sexto die meusis Julii, anno inillesimo
•excentesimo octuagesimo quinto, per no •
bilem et potentem Comitem Georgium
Comitem de Linlithgow, J ustidarium Ge-
neralem, et Honorahiles viros Dominos
Jacobiira Foulis, de Collingtoun, Juiti-
ciarite Clericuin, Johannem Lockhart de
Castlehill, Alezandram Seton de Pitmed-
den, et Patricium L^on de CarBS, Com-
missionarios Juiticiariee S. D. N. Elegis.
Curia legitime affirmata.
The said day anent the criminal action and
Erocess of treason first intended and persewed
efore the estates of parliament, and now insist-
ed in before the Lords Justice Generall, Justice
Clerk and Commissioners of Justiciary, at the
instance of sir George Mackenzie, of Kose-
haugli, his majestie's advocat tor his liighnes
interest, acifninst William Denholme, of VVest-
shiells, James Stewart, son to sir James
8tewart, sometyme provost of Edinburgh, and
Mr. Gilbert Eliot, wryter,in Edinburgh, raak-
and mention that wher be the laws and acts of
parliament of this kingdome, and constant prac-
tice thereof, the cryines of treason, rebellion,
harbouring, recepting, conversing, and inter-
comoning with, or doing favours to, rebells or
traitors, are punishable with forfaultureof Ivfe,
lands and goods ; N evert helesse it is of veritie,
that the saids William Denholme, of Wcst-
shiells, James Stewart, and Mr. Gillicrt Eliot,
shacking off ail fear of God, respect and regard
to his majcstie's aulhoritie and laws, have pre-
sumed to committ and are guilty of the saids
crymes in sua far as the said William Den-
holme did most treasonable outbound to the re-
bellion J 679, and therefter recept and harbour-
ed I on his ground and lands, from the said rc-
• See 1 Fountainhall's Decisions, 366. 2
Wodrow's History of the Suffering of the
Church of Scotland, 298. 493 ; and sir Patrick
Hume's Narrative subjoined to Mr. Rose's Ob-
servations on Mr. Fox's Historical Work. See,
also, the Examinations inserted in the Intro-
duction to the Trials for the Uye- [louse Plot,
Tol 9, p. 357, and the Scots Cases in vol. 10,
of this Collection.
f As to Recept or Reset of Rebels, see in
this Collection, vol. 10, p. 1049.
Wodrow, vol. 2, p. 241, mentions another
disgusting and shocking instance of the extent
IP wbkh tbeprohibition of reset was practised :
hellion, till the last jastioe A^^re, the pcrsiai
vfter blamed, notour and manifcat rebells sai
traitors, viz. Gilbert Grav, in MiiirliaU« Alefl*
ander Gray bis soney Robert Drown thcr, Jtha
Marshall of Killsvtb, James Coupar in Woi-
sheills, John Meek in Hinscl wood, and WilliiB
Vansie, who was a captain to the rebells, sid
sicklyke in the moneths of July, AogusI, sid
September 1682, did treaaonabhe oonrcne, i»
tercomon, correspond with» and do tafoanli
Mr. John Cunninrhame, somtyiaeof Beto(
a forfault and dechured traitor and rcbeili Ml
letters to and receaved answers from Un, ssd
did send money and siipplie to, and mmimd
bills and payed money for, the aaid Midi
traitor severall tymes, and to aeveiall penailb
particularlie payed to Mr. Robert Blatkwwi I
merchant, in Edinburgh, his wjff, ten psal
sterling upon the said traitor his bill and oriff.
And the said James Stewart, beliy thaii
of a traiterous and rebellious fiiAer, be Umdf
no sooner appeired in the worid, then he nali
it his ^preat endeavour to oppose lua uiyiliM
authontie, disturb his gOTemment and 1^ Ul
wryting and practices to aow the seeds mi
bring forth the fraiti of treasons and rebdiDB,
and being severall tvmes delated and Meaad
tor these practices, he fled and absented bJa*
self to £ng1and, Holland, and other placef, ad
ther lurk^ till his majesty issued forth ^
acts of grace and indemnity, and then be l^
turned and sett about his treasonable pradice^
and most perfidiooslie and disloyallie dared id
presumed to wreit and speak and agaiait kii
majesties royall person, dignitie and autboiii/i
and a^inst his laws, and the just prooedorif
his judicatories, particuUrlie did wrsitt id
draw a Representation of the late earie of ilr-
gyle's Case* which paper was designed tohiw
*< In the parish of Saint Mungo," says h^
*' there was a boy not above sixteen yesis cf
age cited to one of the Courts for notheefiif
the church, and bis age made him free of u;
other thing. When he did not compear, oofirt
(iraham sent a party of soldiers to quarter upM
his father, who was regular enough. HmS"
while the father was cited to the oomt sell
meeting, where the comet required aboodtf
him never to reset, converse with, counteusei^
or any way supply his own son."
* Wodrow thus mentions some
of what haul previously befallen
and sir Patrick Hume : .
«* 1675. Two other worthy ^
attacked thisycari thooffa npoa
i89J
and othifs^for High Tnnmh.
A, D. 1686*
been printed, wberein lie diil exlreamlte reflect
upon Hie ]jiirliiiment and teitt, as if the anici
iti(pfrfim the lorfl r-mlrm.* t mse, and »t tins
time they wer»* i . r« for lit>eiiy.
I begin with >! to sir James
^loart formerly ineotionetJ, whotii we shall
»fterviiirdjs ineei with. He vvns ot thifl time
luitict^ for his tatrtiordinary abilities hi fiw,
ihuDc^b there wnn no an^si f©r ooe of tiis
titety and prinriides to act publicty ; but nf^er
.tlic V^roiuiioii be was a hootmr to hts country,
AOd to the i>:own tti the office of king^s ad-
vocate, for tiiitiy yemrs. This gfeiitleniao was
ieftloueetl by the matiag-er» for writing, at least
liaviiiff a share in publishing- the known Paper^
ifitituled, * An Account of HootJand's Gricir-
* anecs, by reason <yf the duke of Lowderdale's
' Ministry, hurutdy tendered to his sacred oia-
*j.-fcly/** [See It at p. 1570 " Thia Account
glilied the party, and fretted them exccefJiiigly,
and yet I do not find that they were able, or
€ver essayed to answer the matters of fad
alleil^ed tiicre against them.
^* Upon this score, and because he was a
known Presbyterian, and Tery useful xo rhese
fieople, letters came down from the court, of
tlie dftie February £7th this year, orderingr,
* James Htiiart, son to ttr James ^uart, late
* provost of Edmbur^h, to be apprehended,
* wherever he was, with all his books and pa*
■rii %vhatsome?er, and made close priijoner
Edinburt;;b, and no communication to be
allowed him with aoy Uviug by trord or
« irrit.'
** These were the illegal and aHjitrary orders
ll^iven at this time about the best of u^eUi with-
Hut any resiKtn, save the will and pleasure of
tDfi^ry courtiers ; so that no}i«dy cimld be sale,
had not kind prOf idence interposeil, as io this
isaae *. Mr. Stuart had some notice giTcn him,
•nd cacaped most narrowly. However, when
Iteirota little out of the' way, upon the lOth
af Marcti, all his cabinets wi^rc siuUed by ordtr
of couiicd, and the magistrates of Ediuburgb
appointed (o search for aim through the; town,
Alid to seiicc all papers or truuki U^lotigin^ to
btm, wherever tWy oould be found ; and be-
cauie they appreltended be itu^ht be hidifijCf
about hi«* brother's house at ('<»llnf^.H. or hii
brotlicfr iu law's, iir John Maxurl of Mcther-
Poltock, orders are eiven to the lord H(j«s and
liis troop to search lor him and Lis pa|ier».
. ** i fikd by a miasive letter dated Murdi t Itli,
lltat a most strict search was made at Ed in*
all
hu
^ 8(uart« for h<8 al-
u
vanceu ; nnd that
Bir, n
ilUain
t u[>rcheiided at
U]>on
h' lid was to be
arn^ -'}r-.-
' ii Ijrui lo inL" iriitl.
h of ^ I arch, the council onlcr
i\
•- ' " ' ■"* '^' ♦♦^y arch-
li.
il re, and
•'^;» *
.^ betak«n
out. V
li 1 knt»w not, but, for
ttiy ihi
>rn, tht;y mado oo dis-
^Ofanfis,
Air.
itiiuari wa« htced to aUtooud
parliament had made ane act inconsistent with
the protectant religion and with itself, and sucli
and retire for some time^ and improved hia
time, during his hiding', in relig;ion and closs
study, so as, through the ble*$in>^ of tiod, he
was prepared thereby to make ihat brii^hl and
extraordinary figure be n Iter ward made in the
world, U is troubles ctmtinued for some years,
and then he ventured to appear again, thuugb
«till in a private way.
*^ The other gentleman attacked this year,
was sir Patrick Hume of Polwart, now th
agkid e;irl of Marchmont, vi^ho since ihc revolu
tion hnlb been honoured lo serve his country [
the hi|;;he&t stations, aj id managed them wit]
that firmness to the resolution- interest, and i
^ardto religion, that his (;|^ray haii-H in the waj
of riyhteousnesis cannot but be a crown to hi
The committee appointed to brinjf in their
opinion anent Mr, J<phn King's aflair, proposed
the garrisoning the country; and it was thought
tliey had a particular eye to tJie house ©f
Cardross in so doing, ^^i^ I'atrick Hume, who
bad made a bold step a^ninst eocroachmciils
upon the ItlMTty of parluimeuts, iis we have
heard, could not away with the setting up of
garrisons in a i^eaceaLle and loyal country, aa
being a sensible tncroHchmcnt upon the li-
berties of the subject ; ami so refui^eii the cou-
tribuiions for support of the garrisons in tlio
shire he wiis concenie^l in I For uhich a seiit^i
coce was parsed against him, and 1m* gave
a bill of suspension lo the lord ('oUiugtl^uii,
and took iustninH^uts, upon hi« rcJusfd, timt Im
had offered it* Hiv Uoberl Sinclair, and some
other gentlemen in the shire of Berwick^ joined
hioi in this matter ; 1 think, at hrst tha mosl
part, but afterwards several fell from it.
** The council, and particularly the bii^hopS|
could not bear any thing that Wked hke
crossing of so darling a project as llie op
prc^Bite garrisons: So, upon the 2d of Sep
teudter, tuey take this matter under iheir <
sideration, and come to this res<dotton. * The
* lords of his majesty*s privy councd, consider-
* ing a trillion given in to them by «ir
* Patrick Hume oi Polwart, and subscribed by
* him) as likewise the UIW of MU^pcusiun pre-
' scnted by him to tlie lord CoUingtoiun which
* is of an insolent nature ; as also, that after
* the lord Lollingtoun had refusifl the saine^
* hetoi>k instniinrois on his otf«r tliereof, and
* that htt had hkewijbc taken tusitrumenis at the
* housea of some tAhvr oi' the couusellcrs, at
' Eduiburgtt ; ^ ' commit hiin topri*
* son, till the k ure lie known.*
** Mean whtic ur cunts came in to th(|
council from all Ci>riit^rH, of the genenil did
satiiftictinn with the appointment vf garriaooiif'
and iIhu few or none of* the cotTniussionerfl of
the excise could be prxiailcd with to meetp
as had been onlercd : Thereupon now order*
arf(*i« (it til iLi' < oittiiil^sivMH r^ (41 meet iu each
fhii- ^<id proride
fort' tiom. _
'' beptemWraid, thacMfuutfU write lolhai
9P1J IJAMES U, frwsmtkmgB
mat Ottlh at o^honcit iBan wonlit t&kc or kee|H
tad d4if«d and pretumed to djmw« hih] wrciti re»-
* e«fil|»Mtting of th€ liird of Polwmit's firing
* in « bill of lUflpeotioQ to the tord Coltingtotio,
< upon A chmrigt giveii t»y tlie cnutictl m the
* ffNiiBikftif»0€ri of excise in Ihf fthiiv of fkr-
* urUdiy CftneerDing the prorisioii of thegorrisons
' of ibfttthire ; and wlieti thecaid lord jueilv
« fffuMd it, that h« took instrunnnils of hit
^ o0<pring it.' Tlie «tn>fi dij the lairdtf of
Lsn^ftodiif Cockhum, and tome other com-
RiissMmcrs of ft'»*v • .. .r.vt>jn a pi^tltion to
the fOOticili ' iii««ent \hm\ the
* eonraiiasaon t; : ,ui and nir It^iWl
«1Mnciarri to present the loreaaid bill of sus*
* pension, and withal gr^ve in i? amants for
* tfeetoaeliref to proride the garrison in ntces-
* ain«t tor their parl%/
** An answer to the coudcII^s letter, of the
dale of September 30th, coroea to theii* hand
Ocstobcr 5tli, wherein hi« majc«ty ' approves of
* their ifnpn!ioning of IMvfart as b<*i!ig a fac-
* tio4JK person, and hat ing done what miiy
* usher in confusion ; and re*]uire« ibem to de'-
* dare him incapahle of all public trust, and
* send him dooe priaoucr to Stirliu^ Castle
* until further onkra/ *'
" Id? 9. By a letter from the kio^dateil
Joly 17th, sir Patrick Hume «f Polvvarthts
liberate. The lettep bear^ * that he had tiern
* tm prisoned for rea-^ns known to hia majejty
* and tending to secure the public peace : And
* now the occafiiona of suspicion and public
* jeatousY being over, he is ordered lo be It-
* berate.^ ''
" By u letter of that same date, Mr. Stuart is
fsstorJd to \m liberty. And the kinjf's letter
February 1675, ^ ordering him to be seized
* and imprisoned \% recalled upon information
* of his tieaeeable behaviour since. He is in*
* demnified from all that can be laid to hra
* charge, reponed to the king*« protection ; and
^ this tetter \n to be recorded, and extracts ol*
* lowed him.' '*
" The earl of Argyle's escape was the oc*
easjon of a g^reat deal of trouble to Mr, btuart,
fliniTe the KeTolutioo sir James 8tuart of
Good trees, formerly mentinued. This great
liwyor was employed in private, {for he oonid
fiot plead in pitblie nithoui taking; the oaths) to
draw up the state of the eari of Argyle's case,
to he sent up to London with the gentleman
the earl dispatched. Three copies were writ
of it by his servants ; and, betbre he sent them
to the earl, he caused them to be read over,
holding one of the copies in his own hand,
ttpori the reading' of which , be made an amend-
ment or two with bisown hand upon the copy
he heCH, and the two serrants amended the
oilier two copies. He sent alt the three to the
€«H, tind desired that copy, with ht^ hand on
the mar^n, micht either be returned or de-
ilrojed ; the other copies were sent up to Lon-
4*ii> and the third was found in the earl's coat
pocket, after he escajjed from the castle. The
ptpcrwas very home and ^laaeand abujidaDtly
wberiQ he nrnrt pif ig^^nil th« mmf m ^m\
henvy in potqt wf arfirtstitrst^
n irhimttisg^ to iIm
^as •son kmMm tB ksMr.taQ
hand, au'l thfs p«p«r eosidBM ti hs hs;
Wbereopon s pwty W9m obbI Ib fas m^^
Ikposo, ibo mmiXwm, My Qmimm, \m k
witlMpii^ iMiiL Mi vmm WK%9m1k
NptMico OM Mr* in€ii||B*Hsfjrt ••• l^A^
Lftofiliftw, wive Bosl ooivbeiaav. lAif
Uioimt it oobiPCttMt ii» olipoai of^«
a fttUe; and Mr, MontpiMty, iAmA Im
Tooth, foond he sttts aot a niiMy m ife
onr^h, and was oiili^vd U^wwbm Is Wiil
hii^ relations, wliefv lie eosnimied iMKk #i
Itlierty, in the year 1687. Fmn the fl^
man lost tiamd i have tbis mmtm\m
when f name Inm, I tniist m^kmmMmm
obltfrations to him, ^ Um oUimi kal«
in allowing' me accsaa to ibe cmmI Ik
and giving me seecfal Tutwtte Mk/^ of ^
icritiejt ot this petiod, wliieb lia loHl6ittli
worthy f»ither, wttocn we shall mesi wiks*
vearortwo. Mr. ^Csswftri wma oMfii,*
forking a white, to rt-tire to tJollMiil, '
eOfMinued until ttie tf^lsmiiofi/*
*'t;poo the sad of April l«saapiioeeotfla{
feiture ta raised befora tb# * -
the undonrritten porma« '1 faataa fiMrtl|
fore me, of the cHtaJoal letisn afoiwiH
of tliree or four slioets, too Ibag lo hs ii
hers or lu the •ppeadix, aod tSmfiNs tid
only give an abstract of the most matfaadr
tieles here. ' Anent crinunal letters rais^J
*- sir George Maekenne of
* jetty's advocate, against «loliii
* Kin loch I calletl captain Burl^gl^
* ael poitioner of Kcttfp, Robcftlia
' ther to sir William HamiltoQ nf Pi i amt i^
* John Hog minister at Kottentani, Mr. iiM
* Fleming there, i^itfa, Mr. Roibml^
* lands, Andrew Rnaael fhctor, Jolia B^
* factor, and James Stitarl ion la sir Jaoo
^ Stuart lord provost of UittNtr^* anbl
' mention, that notwithstmi^^ <»C on^^
' of parliament, ogatiiil trooaon, MMfiMtW
* rismg in arms, vrhich tbey liave l»««»Lee . *^
* whereas by Act 11, 8e«ii, 1. I*iitl, f
* the king's advocate, TrTtrnint4?d bv
* council, may and oul: st s^siaatW
* persoDS in aoseoce ; ^daodastM*
* pearine^, the lord ^i are tu i^rocaed to
*' as if they were present : Ami it is so
^ that the said Joho Bulfoor, and Jolia „^
* with 1I112 deceast Duvid Hackstomi af Itiilid-
Met, and otheT^^ discharged _ _ ,_
' the coach of his grace Jainao aKMsbs^iT
*8i. Aiiflrews, about two miles fVata kiM09
* of St, Andrews, in Magmas- itttilr, whtm IfStdt
* ing-jwith las daughter, most aoctu sly, aad wn*
' sacrile0fiusly invaded him aad his daagk
Mer; and his fiance Inivin^ apeoiad llto^isri
* and coiue tbrtn, and falleo davm oa liStleoiMB
* begging mercy, or time to laoailMDoOd Wb^.
* soul to God, aad to pray far
and othen^fb/rHigh
Mfbrsuid» most treas^mahHe assertiug^vhat \m ma*
•Jestie« subjei'ls wer bound hy ttie covennnt and
rTconression of faith, to oji pose the dviti triacis*
, Irate in ilefenre of relit^ioij, and to debarr mm
' Dm the irnjjerial crown of this reahn if lit iverc
pt a prolestant; ami ther being- in the } liar
l683, act: helUsh and damnable plait amJ con-
A. ». 16S5.
mr
I ' se cruel and inhuinane were thevi that with-
^ \aMl pii^tn^his grpy hairs, or the shrieks of
I • his wcepiuif duujjfhier, or respecting: his cha-
P * meter or office^ most cruelly and furiously
I • gave liini nrianj hluody and mortal wounds in
J * his head and other placet, and kft him dead
* and murdered on the place ; and tlien went
I '* unto the west, and rose in reheUion at B(jth'
J * well-bridg-e^ under the command of llie said
< Robert HamHtoQ. And when, by the dili-
•ifCDceofbis miyesty'a forces, they could no
* longer slny in the nation, they t!i'd to the
* nniteil pnninces of Holland ^ t^hciXf the said
*]Mr. John Hog, Mr. llobert Fkrning', Mr.
^ ♦ Rotiert Laiijjlands, ^^c. converse*] with them,
^ * harboured, supplied, and furnished them ivilh
* * money and uecesaaries, io the years T079,
* 160O,'l6fU,orl682. Andthesaid Messm Hoff^
■« F<emio^, Smith, and Lan^lands, did, in one
.* of the uioiidis of the years foresaid, imploy
* Mr. DouHhl Carcil, ftfr. Richanl Cameron,
•• Mr, John J{:ip, Mr. David Hume, Mr. Jolm
* Kftig-, Mr. J»bn KJd, Mr, John Weir, Mr
•^^riiomas ffog, Mr. Andi-ew Anderson, Mr.
* ^*d»n JImss, Mr. Alexander Wilson, Mr,
* Alexander Bertram, Mr. Francis Irvine, Mr,
John \Vplh>ood, Mr. Thomas Marg^il, niinia-
ri, fled from ihcir native country, for their
hand in the rebellion 1679, and nho were in-
* fercommuned. And the said Me^^srs. Hog,
* Fleming* Smith and Lunglandii, arc arriveil
^ at that hei'^ht of impiety, to own and main-
* tain that treasonable and naerdegious con e*
nant, (which occa»toned so much bloiidi»hed,
td the loss of the lives of so many i^ood sub-
and *vQa the eufifiae of the whole ca-
phe of the rebellious, and unpaialleled,
itid accursed mnrderolour$»overeiji^n€harte>s
* I. to the everlaslin}^- reproach of the Proles-
* lant religion) and, in au impious and iiisu-
* lent manner, did take upon them to debar
* from the Lord*a table such ns owned his ma-
'jefity'!^ authority, or aviated and ^rved him
, in the gt)vernmerit, as enemies to Christ and
* his king°dom ; and consulted and treated for
* admitting the said John Balfour to the table
* of the Lord ; that iluring' the Dutch war, they
* prayed publicly for the success of the forces
* of llie States, ag-ainst their sovereig^n lord the
* king : And the said James Stuart, beini^ the
* son of a father whose disloyal principles and
* practices tended to the de»ti uction of his ma -
« jcsty *Ji authority and ^Ternment, in the time
* of tlie late Retellion : and he no sooner ar-
* rtved to any heiglit of knowledge*, than he
* used all entfeavours to disturb the government
* both in eiHirt^h and state, nod by his vrritiupi
* and practices to sow sedition : And after he
* was fotxt'd to lurk and flee tk« natjoo, wbeo
VOL. XV
spiracy entered into by ihebte earle?i ofMiafteji-
burj\* Essext and Arc^yle,! the Ionia Ilu®ii!M
anil Grwvll, mnjor Holmes, rolontl PJrliavd
Rurubold,^ air John Cuchrun*'', sir Hugh anrl
sir (ieorgfe Canipbellsif f , ilderand younger, of
Cessnock, David Monl^omerie, sorotyyie of
Lan;;shaw, Thomas iStewart, somtyme ai*
Cultuess, brother to the said Jamea Stcvvan,
sir Patrick Hume, sumetyme of Polwort,
Georifc Prinnle, somrtyme of Torwooillic,
Mr. Robert Marline, Mr. Robf*rt Ferguson,} f
and other rebella and traitors, subjects of tijis
* returned after the indemnity, he wrote and
* drew a reprcheuiatiun of tlie late earl of Ar-
* jjT) h-''« case, which paper was dcfiiijned to be
* prinlcdt wherein he extremely redecie<l on
* the late parliament, and teit, appoInte<l to be
* a bulwark to the Prot«sfant raligiftn and his ma-
* jesty*s j^ovcrnment ; aiid drew and wrote rea-
' sons f»f;ainst the said test, (reasonably asserting,
* that subjCLls were bound by the cbvcoant and
* confession of tkith, to oppose the civil raag^-
* trale jndelence of rellg-iou ; and hath assisted,
'supplier], and done favours to the isaid John
* Balfour and Russel, and contijmes in a despe-
* rate state of rebellion and treason. Wherelbre
* these thini^s being" proven, the whole of the
* akive natui'd persons ought to be punished
*'wi»h tiirfeiture of life, and lands, and goods.*
** The advocate produces warrants to pursue,
and the inromous npn sixty ilays, as ordinary
in cases of persons beinjf out of the kingdom :
and at present insiists anjaiost Robert H ami I tun
and Jtdm Balfour. The lords liod the dittay
relevant, and remit it to prohalion before an ait^
size. Witnesses appear, and depne they saw
Robert Hamifton jjeneral at Bothwell brid^^^e,
and Balfour captain of a troop of horse. Ano-
llier tvitness depones, That when Balfour wast
fletiug*, he heard him s?iy he had received Si
shot, the devil eut off the hands that g^avc it.
The assize bring them io guilly of what is li<
belled, and the lords adjndg:e thtm to be ex*
ecutf d and demeaned as iraiiors, when appre*
bended, and their name fame and memory
to be extinct, antl iheir lands to fall to his Ma
jVsty, as in common form. U[>on absf i
nfler citation, John Russel porlionn- of KeUla
Mcsi,rs. John Hog, Langbnds, and Smithes
James Staart, are put to the hom and f
felted."
As to sir James Stuart, the liither, see 1 {
Wodi^wf, pp, 6. 14 J. 280. 316. b'^.
• See bis two Cases, vol 6, p. 1261> ; vol J
a, p. 75€>. 1
t See the Caae of Spelte ftud firaddoOi voL j
9, p. llir.
i See his Case, v51. 8, p. 843.
§ See his Case, voL 9, p. 577*
II See some account of him, toI, 9, p. 359» j
f[ ^c lus Case, p. 873 of this Volame*
*♦ See his Case, vol. 10, p. 990,
+t See their Case, vol, 10, p. ?^19.
It See the Caio of Spreui aod Fennisoti
loKlo, p, 725. "
3^
p
*
995] 1 JAMES II. Pweedingt against TVilUom Denhaimt^ P
kin^tlome anil of England, for killing ftud mur* holtn^, of Westslieills, John W«r, «ri(MK
dentil^, ki least seizing upon the |)ersous of bin « John Hjiy, of Piu'lc, sir WiUiaia SenO, v«i^
lacreU majeiity nod bis royall brother, our late i of Hardea, Andrew FS^e{i«r, of ImM,
grariuiis soverai^fne king' Charles the second,
ond fur raiaeiDg open war and rebellion in both
kjitydomes, and for furalsKingf ruen^ money ,
thi[»s nnd armes, to the lal*» earle of Ar^fe,
for rtiistni^ warr and invading this hia native
countrey, the saids William Denholme of
Westslieills, James Stewart and master Gilbert
Bitot, went over to Holland, and tber most
treaaonablie and industrioublie did neg^otiat,
treat, con^Jl, deryse and contrive the said
horrid rebeltion and invasion, with the natd i
earieof Arg'vle, a forfault and declared traitor
snd rcbell, and did treasortabk' and day lie con-
Terse, corresfiond and intereonunon with hin^,
and with Mr. \V. Veatch, another forfault and
declared traitor, aneut the carrying on of the
•aid rebellion, fiiruished money and did favours
to them, and that notonce hut often upon the
firai, second, third or ane or other of the dayesof
the months of January, February, March, or
ane or other of the nionetlis of ane or other of the
years 1082, 1683, 1684, and 1685 years, and did
mcist treasonublie bear, conceal! aod did not re-
f eall the said horrid plot, conspiraeie, and tntcndit
rebelloin, of the which cr^r'mesof lescmajestje»
C**nversing^j intei-communing- and corrc>pond-
ing" with rebel Is and traitors, hearing", conceal-
ing and not revealing treason, the saids Wil-
liam Detiholmj of Westsbeills, James Stewart
and Mr. GUhert £Uot, arc actoi-s, art and (lart ;
which being found he ane assyse, they ouy^htta
be punished with forfuulture of life, land and
Sfoods, to the terror of others to cammitt the
iLke herefter.
Whicli criminal action and cause being this
day called in pre^ncc of the Lordsi Justice Ge«
Deral»J ustice Clerk, and CommisAJuncrs of Justi-
ciary, compeired sir Gaorge M'Kenzie, fjf Rosie*
haugh, his mtijeslics ndvocat, and protluccdthe
princi|iall lybdl raised before the parliament
ail^ainst the saids William Denholme, of West-
•heil Is, James Htcwart and Mr. Gilljcrt EJiot,
with tlie execuliouB therof, and veriHcationi ut'
the sam9« in face uf parliament, by the heraulds
and persevanis, which were given back to he
keepcd iu the records of pafliametit : The said
lybell coutainiug tsevcrull persons tlir rin alreadie
torl'aulted belbr tJio parliament.
His majesty *s Advocat pmdocedane act of par*
liamettt remitting the process of treason b«f(iro
the parliament against Dcnliohiie of WestsheiUs^
Jamrs Stewarr, sone to sir James Steivurt,
•ometymeprovest of Edinburgh, miister Gilbert
Eliot, *aud others, to the justice court, whereof
the tenor follower :
Atl Edinburgh, the 16'ii day of June, J6B5,
Our sof eraigne lord with consent of ihe C2»tates
of parliament doe herebv remilt to the *;om-
inisBJoncrs of justiciary, tut process uf treason
iutented against the airs of the deceiat JameJ*
earle of I^udoun, sir James Dalrymple, oi
8taiPB, James Stewart, sou to the deocist hir
James Stewart, late protest of Edinburgh,
G«lja Campbdl, of ArdkiitglasSp WitLmoi Dm-
Hume, of Uessindean, Mr. Gi
wryter^ in Edinburg^h, atid Walk*
of Kirkloun, to be discuat )m thi
sununouds jiersewed before tkt
which is heirby decH'^^^ *^ hi; ■
the forsuids persons ; ' ne ti itoM
lK*in suromoMf d h*f;.r :.,. , .^tidca m 1^ ll
instance, ai aatborizes and laMi
the lords of J to prooeeil mfeMB
against them lor the couspitmey, aft mip
therof, concealing' and not rerealing tiit m^
and other cry mes mentioried m tlie vmmm
nouvithstauding they be absent, tnd tktis
of assyservaod w»tir(r<$ses were nolgif<afe^
defenders; Extract funh of the recofili«fp
liament by George viscount of Tttkl, li*
M^Leod and Castle haven, clerk to hisin^^
[parliament councill, registers and rotle.
Sic Subscrikitur^ Tarbet, CI. Ueffm.
His ilfoffteief Advocai prodooed chtfi
ci pall ly bell raised before
the said William DeoboJine, of
James Stewart, and Mr. GUl>eri £Iiot»
execotionfi therof, aod veri6eatiofi« of tke
in face of nrliameni by the heranldiiad f»
sevants, which wer given bihck to bt iMp^^j
tlic records of parliaioent, ite sayd \f\m^
tainiug sev^all persons iberin
bdbr« tha parliament, Hw m ^
declares he insists agmmst Williun
of Westsheiis. James Stewaut, and
Eliot, for their coDreningr mij
with the late earle of Ai^^le, a Ibdiittll mi ^
dared traitor, but prejiidic« to bam M Mi
Qpoti the other articles of lii« dittajf w^h
pleases, or to raise a oe^r l^bcU egmoit ta
when be shall think 6tt,
'fbc defenders being absent^ the Loi^fli^
forme to the forntd act of pmHtwiitcit, tail
elevinth act, first seinoii, oeeotid
king Charles the second, did prooeedliff^
tiidcr and gife their iuterloquitor ntm ^
lybuLI, whfrof the tenor fi>Uows :
iNTEnLOQinroR,
The Lonls Justice General, Justice CHoi
and Ci>mmissioner» of Juatjctaryi haviog on*
sidcretl the 1) bell |iursucd by his ni^eciy^ii^
vouat agaiu&t Peahohn, of 'Westsheittt, JlB9
8tewart, and Mr. Gil l>ert Eliot, withblsiMia^
ties advocates fleclarutiou, wberhj he i '
present vipon that article aueni iLeir
iug, intetcomuniug, aod correspati(
late earle of Argile, a forfault and
tor, they And that article of the lybdl n
to itifer the paine of treasoo, ami rei~^
tame to tbe knowledge of the mmyw^,
AssisA.
John Boyle, of Kilbarne.
Master John Dempster, of PtUivcr.
* See in this Colle«tioa the Case of iheil
of Biicckugb luid Moititioutbi apd
i^^
and othn^for High Treason^
A, a
Sir Wtlluim Binniug", of Valejfield,
Wiilter Heott, of l^lliam.
^nilrifw Hrown, of <lorj:ie BIjIji.
^ Patrick 8mitli »f Meihveo,
Jolid Jobiiitoun, of Cbcbrk* pn>vesl of
^littgOW.
John Camejpei of Cookstoun.
Wilbuni Steitt»otie, Itite bail lie of Edinburgh*
Robert Hiindielnndti^ ni<?rcbiuit lb ere.
Ttiomofl tlaniilloun, tnason. r
Tliumas Mowbray « mercb&at. •
Jsmea IMlock, miTchaiu,
Jiraiv Cranitourif tDcrebiut.
^ Jamea Brodie, itiiAson.
Tbe AtM $e lawfutlm iw«ra« oo ol#jection of
the law ID tiic coQtrair,
Hia Majeslie* A dvocat, for probation, adtlueed
the witncsacii eittr ilcponiog, wbo were all
pureed of mftiice, iii-ejuditT, hatred, ill-^^iH,
ftftd partial I counsel].
John Cachraftf sointynte called tir Jobti
Cocbran, of Uchiltrit^ ogied fourty tiyu years,
tnorryod, purg*-d and sworn, ikepotis tFiat m
Ifae tttotiethi ot Marcb or April Jost, Jame<
lto«wart was at a inei>tjni^' vviih the late carle of
Arsrde la Holbud, mwnx tlte itivadb^ of 8cot-
l4U3d, and that Jaotes Stewart did rjomiilaitr tbat
ArjBple would btij;tT too much in the bii^hlaudf
f>t ^»cctbm4 whtii he came there ; depoos he
knowea VVillmm Denholiue, of VVeatiheilb,
mMkd tbat within thir three monetba he saw him
wevemW tyriiesconfersing with the late earte of
Argylo in ilollatidf and tbat he came alougst
Hrilh the* stttd Ute earle, and thai he was
in arrnea with itim till the re-
t*' ; deponK he saw master
1 ftavf htm in ilulland, within
I'on verse severall tyniea with
'< in his company, and tbat
over in the Bhii» wilb
i\nil and landed with him,
coDtinned with httu and the re-
i^y were dissipat ; and thia ia the
lit: ithall ao»wer to God.
5ic Hutacr itnttir^ Jo. Cocuiiane.
John Cochran, ciiMod tomtyme of Waterayd,
«olemrilie a worn and purged » ng;cd twentie*
two yeur«,or ihcrby, dejmn* he knowes James
Stewart, and imiw him in lioitatid tu the iiionetb
«*■ March or A prill la*t^ with the late earle of
Arg) le, and that ihc depanenl spock to James
fitewurl uncut the iiiitt«hu|; of J!?cotkind ; de-
pone h^ know«i l>fenholm, of WcstJibcitla, and
Mwc bini in Uolluod, within the tyme fore-
tsid, in compaay with the late carle of Argyle,
ftn ' iiig with hiuif and tlnit be cnme t«
^ lj thcin. and wa« and rotitjtjurd in
rJ Gilbert
li-l 1 iiwin iM* iji irves lo be
tb' ^'^ lib the laie Aix}ie»**>
%erHl ! .l.a,.« t!t-.t'!.-> toirsiiid,
•iid lb . in their
imi^i: . . . ,iLbibem
toieotknd and wii ia armes wiib tbem ther ;
mi\t\ dir!
tl.
tli.
Mr. V,
the b[>
U
IriJtii ka
and depoim be beUevei that Mr. Gilbert Kliot
and D^hbolm of Westabedia, whom be coo*
veraetl with ^nd aneiit whom bo dem»oS| Ar#
the name |ierion» imiyted bd'ore this co«tt ;
and this is the truth as be shall answer lo God*
Ute Subicribiturf Jo, Coc«iiAK£,
Mr. Wiliiam BLackadtr^ doctor of mtsdleii
a^rtnl threUy yeara, unmarrietf, purged aii4
avvurne* depoas be know» J»nie8 8te%>art, and
has seen him and the late Ari^yle in a tie rot i me
togt'lbfr in Holknd, within tmr twelve fDoneibs
or therbv \ depons he kno^^es Denhotm, of
WeMUheilSi and tbat within the time ior^aid be
•aw him in Holland with Argyle, conversion
with him, and that be came over in iP ''
same ^hip with Ar^yte, and i^awe him
tnlde \iiUi fiim. Qepooa he koowca Mr.
Gilbert Eliat ami saw him in Holland within
the tyme foisaid with the late Ar^^yle, and
S'lAW bitu at the sea in the ship w itb tlie late
Arg^yle, and th»t it waj^in winter Ea^4 ilint ibey
conversed with the late Ar^^ylein Holland, ana
this is the triieth as be shall answer to God,
Sic SubMcribitur^ William BuiciUDFJt.
David Stewart^ younger, of Cultnees, aged
twenty-six years, unmarryed, purged and
sworne, deppni he has seen ifamet^ Stewart, bts
UDcle, converse teverall tymea with the late
Argyle in Holland, in winter last ; depom; he
sa we Den ho I me, of Westsheills, and Mr, Gil-
bert Eliot, oooverseing with the late earle of
Ar^yle severall tymes in Holland, in winter
latft ; and this is the truth as he sliall answer
to God.
Sic SuhictibUur^ David Stewajit.
Mn Thomat Archer^ pretended preacbefg^
aged thretty-Lwo year?, unmanyed, pur|^
and sworne, depons be knowes Jaoies Stewart,
and saw liim at>out two years a^o with the laic
Aryfyle at Utrecht^ and' that the late Argylu
stayed at James Stewart's bouse; depona
Jamet Stewart and the deponent spock toge*
tber, anent theu' invading of Scoilaml in gene-
rail, hut does not remember the partictdarB ;
depons he knowes William Denboliue, of
WeaUheiUs, and has aeeii bim with Jame*;
Stewart aiul the late Argyle the (iril nigbt
Westalieills came to HolUiud, and tliat Wc^^t-
sheilb came over to Holland with tlie rest, and
bad a buff cfMU, and was with them ut the cattle
of Idandffreig ; depons he knows Mr. Gilbert
Eliot, and taw him with the late Argvie, ackl
that £hot came over with the rest and wa^ in
armes with the rei*elts ; and Ibis is the truth
as be shall answer to God*
Sic Suiftcribiturf Tito« AaciifiR.
His jVlajestie's Advocate for proving tbat I be
late earle of Argyle was a fortault traitor, pro-
duced the hotikn of iidjounml and doom of for-
tiiullure |ironunced agiim»t him, upon the TJri}
of December, l<j« I ,
I) f.ofCuItticsSy
Ml, .; , , , i Sptm^ jfomety tne scrrant to the
late carle of Argyle,
999]
1 JAMES II. Proceedings agabiit WiUiam Denholme^ [1000
Indited and accused, That wher notwith-
standing lie the common lawe, lawes, and acts
of parliament of this kingdom, imrticularlie be
the fyft act tirst session, second act second ses-
sion, first parliament king Charles the second,
and ane hundreth and fourty fourth act, twelt
parliament king James the sixf, and diverse
other lawes and acts of parliament, the rising
in armes against his majesty or his anthoritie,
upon any cause or pretext wliatsomever, the
pfoting, contryring or intending the death or
destruction of the king's most sacred majesty,
or any bodily harm to nim, or the depryving,
depo»ng and suspending of him from the style,
honour, or kinglie name of the imperiali cro\vne
of this realmc, or the OTerturning of the go-
Temment of the monarchie, or the concealing
and not revealingofany of these cry mes, and the
intercomuning, conyersing or corresponding
ivith rebells and traitors, are crymes anu poynts
of high treason, rebellion and lese majestie, and
punishable with forfanlture of lyff, lands and
goods: Nevertheless it is of verity that the
said David Stewart, sone to Thomas Stewart,
sometymcof Cultness,and Mr. William Spcns,
shacking of)' nil fear of God, respect and regard
to his nuijestie's authority ami lawes, have pre-
sumed to commiit, and arc guilty of the saids
<jry mcs, in sua farr as there being in the year
l(>b:), ane hellish and damnable jdott and con-
spiracy entered into by thelateearlosof Shalls-
berry," Essex, ^and Ar^yle, the lords Russdl
and Gray, and sir John Cochran, sir Hugh and
sir George Campbles, somiyme of Cessnock,
David >lontgomery, somtyme of Langshaw,
Tliomas Stewart, sometynie of Cullnes, James
Stexvart, his brother, sir Patrick Home, of
Polwort, George Prinpfle, sonttyme of Tor-
woodlie, Mr. Kohert Martin, Mr.'llobert Fer-
?'ii?on, major Holinss, :ind collonell Kitchard
iuinliohl, an<l other rilirlls and traitors sub-
jects of tills kingflom an'l of Kii^land, for kill-
ino and innnlciing, at It-ast sca7in<c upon the
])crson of his sacred majt'sty and of his royall
I.TOthcr, our lalo gracious soveraigne king
Charles the scconti, and for raising open warr
and rebellion in both kingdonns, and furnish-
ing men, inom y, ships, and armes to the late
curie of Ariiylc for that eflert ; for the dosser
carrying on x\horcof, ihesaids conspirators did
<wnvir>L' and correspond with each others in
liyro;;>lij)liiiks and tionros, and in obscure and
mistnall tcrr.ios, the kuyes whereol'were keept
and known by the said Master William Spens,
and they and the saiil David Stewart, did ne-
gotiat, ij-eat and consult, therancnt did devise,
contrive, know, conceal! arul did not reveall
the same, tliou-^h the said Mr. William Spens
snlTered torture for discovering thereof; but
the said plott being other\^:iycs brouy^ht to
light, and tliey having, upon a remisbion, de-
ciphered bonie of these letters, he no sooner
obtained the said ix'iuission then ho went over
to Holland to tlu» said late carle of Arg^ie, a
fbrfault and declared traitor, and did Irea-
Bonabl^ converse, correspond and iutcrcommon
^ ' * "'^t ami eulered into hit actual! service,
and kcept the said pk>tt on foot, and gave \m
intellegence of the state and desigDe> of tbii
kingdom, and the said earle and other tnitoit
and rebells in Holland did conspire the over-
turning of the government of this realme, umI
accord inglie the said late earle of Ar^vle lod
severall other traitors and rebelb did inva^
this kingdome, with shipa» men, armes and
aronnition, and landed with them in the wot
highlands of Scotland, npon the diy rf
May last fDoctor Blackader and the said *Mr.
William 8|»en8 being sett ashore at Orknev,lt
get intelligence the^ and the said lale earle «f
Argyle and the said David Stewart, and die
relQls and traitors with them, did issue fortk
treasonable declarations, did convocat asd
gather together his maicstie*s subjects to the
number of within the shy res of Ar-
jCyle, Tarbat, Highlands, and Isles thereabout,
m open rebellion against his msyesty and lut
authority, did take in and mantaine fiurts,
strengths and ffarrisons, against him and lis
forces, did robb and plunder the floods asd
houses of his majealie's goods and subject^
rendif ouzed and exercised thrniselves, did acesi
furth, kill and murther, severall of his
tie's good subjects and souldiers, and did
tinue in open and avowed rcbc,*llinn against hii
majesty and hb authority, oomuiilting all sen
of hostility and higli treason, untill. at lesgih
they were'dissipate and defate, and taken pii-
soncrs ; Of the whilk horrid crymes of Ina-
son, reliellion, and lese miyestie, they and fll
ane of them, are actors, art and part, and hiN
concealed and not revealed the somen, which
being found' be ane assyse, they ought to kt
punished with forfaulturc of lyff, lands aad
goods, to the terror of others to commiit the
lyke herefter.
Penexccr.—^w George, Mackenzie^ of Ri«-
liaiigh, his majesty's Advocate.
David Siexart, sone to Thomas Slewai^
somtynte of Coltnes, confesses and acCnav-
led;^es, that he went over to Holland ahont tvt
J r' curs agoe, and was twice in company witblhi
ate Argyle and James Stewart his uncle thcr,
and that he came over in i\Iay lost in the ship
with the late Argyle, from iloUaiid to Scot-
land, and landit in the highlands with the reHa
and was and continued with the rebelktilihe
was taken, and that he had a Kword. fla
ownes the king's authority, and that kiag
James the scunth, who now reip^s, is hblav-
fuli king and soveraigne, comes in will asi
begs his mercy, and beggs the Lords would ba
pleased to recommend him to hib majesties gr^
cious clemency.
Sic Subscribitur^ David Stewabt.
\
His Majcitifx Advocat declares, he i
that article of the dittay agpauist Sir. IVillisa
8[iens, anent his convcrsmg with Argyle ii
manner lybclled, and for his treasonable js^fi-
ing with him and coming alougst with huaii
the ships with men and armes, fbr intadjpg
this kingdome.— The Lords having euuikhiti
1001} and others^ for High Trmion^
if>e \yM\ pereeweJ be his inajeiiti^'a A<lvoeat
Against Da V lit Seewurt and Mr. Willi am Speus,
Vfilh the kiu^f's AiK^icofs dedaralion, they tintl
the *«mi»ti nlcraot as ihe SHtntn is Ijfieilcd
aad resifictcd, ?iz. That David Stewart coii-
verscij w iih ihe late Ar^ylc, si declared traiU»r,
ftiid joyned with him iii retKHiou in manner
inc«t»'ined ill ihe lyheh, anil ihat Mr. WiiJiarn
Kpeiis. roiivvrs<d with the tnie Apgyle, a for-
faulicil imitor, siincc llie sa d Muster WilUnm
8ji€a«gott hiii majestie*s remission, and joyned
and eanic aigng^t with him in ships with rot^n
and aroiefi, relevant, and remittc the same to the
kuowledg^e ol the assyse.
John Doyle, of Kelhum,
'BIr. John Dempster, of PitUver,
'fiir \Vi»l»um Binninff, of Va1e>lield,
Walter ^.oX, of Ijeiham,
Andrew Broun, of Cior^icrayln,
Patrick Smith, of Methvcn,
John Johuatoun, of Clachrie, proroit of
Ijlitgow,
John Carocgiie, of Cooks ton,
WitUam Steivinsone, late bfttUie of ^in-
Lurgh,
ICitliert 8imdlefafid<i, merchant there,
Thumai* Mauiihouji, maaon,
Thomas Mowbray, merchant,
Jamei l*ollock, merchant,
Jatnes Crantiloun, merchant,
Jamea broadie, ma^on.
The Afi!(yse laufnllte sworn, noobjectlon of
llie laiv in the cttutruir, his majestie'a Advocai
far Probatinu^ ruldttced theCopfesaioo of David
^e war t » above w rit ten ,
Mr. Thomas Jnhtr being re-examined,
nurired and aworne, Dcpoas* he knows Mr.
\l ilTiam 8pen8f and sawc htm with the Jute
Arg'vle in lloIlimJ, a Ulle hclbre they came to
8coUandf and that 31 r. S\iciih wu^ ihen Ar^y le's
actual! servant; depons he kiiowej» Da\it|
Site wart yuun^cr, of CuUnes, and saw him in
iJolUind III hm tUiher's hon^e, in lloterdame,
Aod sa^ him with the rest of ihe i^Mh in the
Uigbiaiids in Juno last ; and this in the truth
at be stiaU answer to God.
5tc SuhicrilfUur^ Thomas Alien er*
Mr» WiiUum Bkck^tder, doctor of medicine,
•g^ed thretty year«» unmarryed, ourored and
twom, dcjMjns hii knowes Mr, Wilham Nperis
the puMuullfUnd siiwe htm in com]any with tlie
^t»' Ar^rtl*. aboanl of the ship witfi the rest,
Holland to Scotland, and thiit Mr.
; iitieanie out of the «ihip at Orkney
with the ilcponentf anil was taken ther and
ll>fOfi{jti( iirisenrr with him to P.iiinVuir"^Ii j
fr..- - . .
1i< -d ; Mid LAUiL kkUtiif^tii Hith
h«! hip; depons h«^ saw young
C'uitnr:. ill thi; stitp with Arijyie cominjif from
fioiJand to Scotland ; arul llnl in the truth as
tie iihi|ll anstwer to God.
Sw Subicri^Uurf Willuji BLaCiUPBft*
A, 0. 1685. [1002
David Thinhar^ cbtrargeon^ ngfed twenty-
six yeurs, unmarried, pmqed and iworoej;;
depon*? he knows Mr, William Spens, and sail
him in the ship with the late A rgyle coming '
from Holland to Scotland in May Uat, and
speakin'*' and conversing uith him, and wait-
ing on nirn in the cabbin, and that he knowes
younjLT Culines, and sawe him aboard of the
ship with the bte Argyle, and saw him in the
Highlands with the rest, and that he had a
sword ; and this is tbe tmtli aa he shall answer
to God,
Sic Subscribitur^ David Dupceur.
Fallow es the Verdict,
The Assvse having elected Patrick Smith, of
Meth^^eu, ilreir chancellor, they all in one voice
fiud the lybcll against William Denholm, of
Westshiells, James Stewart son to air Jamea
Stewart, lute Provost of EdiDbuigh, Master
Gilbert £liot» for the treasonable converamg,
corresponding and intercomuning with the
lute earle ot Argyle, a forfault and declared
tmtor, sufTiciently proven. Lykeas finds Ihe
lybell against David Stewart, younger, of
Uultnes, for the treasonable convensinff and cor*
responding uith Ar^yle, and of the treasonable
invading of this kingdoine, and beiny;^ with
Arjryle and the other itMk in ttie IlighUnds
tn May and Jime hst, sufficientlie proven ; and
finds ihe lybcll against Mr. William Speos, for
the li'easonahle conversing, corrc%]H>ndin^ and
JnttTcomuiiing wiih the forsaid late earle of
Argyle, since he obtained his majestie*8 re mis-
sion, and of Jovningand coming alongst with
him in the stiip from Holland, snthcientljT
proven. Written in the parliament house
Edinburgh, this IGih of July, 1085 years, bjfl
me Walter Scott, of Lctham, elected clerk h%
the i^st of the memben^ of the in^ueist.
Sic Subicribitur^ Patrick S»itu of Rit^^
Folio wcs the Doom :
The I.onU Justice General, JusticeCierk and
Commissioners of J ustici ary , having considered
the vcitlirt of u»»iy*c above written, they there-
for l»e the month of John Leslie, dempster of
court, dt^erne and atfjudge the said David
8tewaii| son*! lo Thomas Stewnrt, sometyme of
Irul lues, and Mr, William Hpens, servant In
the late A riffle, to be taken to the marcal
Crocc of Edinburgh, upon Wednesday tiixl| j
being the twinty-two day of July mstani, be^
twixt three ani tyfe a clock in theall«rfi00Q|l
and there to be h:mged on a gibbet till they b^l
dead, and oixlained all thtli f:iiH]v heretag«4^J
titles, otticet, tacks, stedil %\
s\i*uH, giiods, auilgear, wli ; [>ertaintn
at, to be forlault and escheat to our sov^
.^ lont's use, to remaine periHnuatly witl
iiiit htghnea in property, which was prauua
for do mi.
And also h^ 1 the verdict
assysc returnee I i William Den*
hulinr, ol' Wesl^hcills, Jatnrj Stewart, son to
(he deceattt sir James Stewurl, soinetyine
lOOS]
i JAMES 11.
Trial of David Moabn^,
[lOM
proTOctof Edinburgh, and Mr. Gilbert Eliot,
wreitter in £diuburu:h, they therefore be the
mouth ef the said John Lesley, denipster of
conrt, decerned and adjudged the saids William
Denholme, James Stewart, and Mr. Gilbert
Kliot, to be execute to the death, demained
AS traitors, and to undergoe the pains of
ti'ejison and utter punishment appoynted by
t!ie lawes of this realm, whenever tfiey shall
be ap]n'cheuded, at such tymes and places,
and in such manner as the Lords Justice
(jicnenill, Justice Clerk aAl commissioners of
Justiciary shall apiNiynt, and ordains, their
name, fame, memory and honours^ to be
extinct, t)ieir Mood to be tainted, ani thck
armea to be rifen farth and delate om of tht
books of armet/aiia that their posterity ntr
never have place nor be aUe herefterto bntt
or joy se any honours, offices, title
withm this realme in tyme Gomine, and tobnt
forfault amitted and tint all ^od snndiy thai
lands, heretages, gooda aiid g^eir wlialaoBin&
tacks, steddings, roumea, poauadona, tideiiaii
offices whalsomever, to our aoTeraigne M Ift
remaine perpetoalliie with his hk^Boea ia pif*
perty, which was pronounced for mm.
Whereupon his nuyestiea adrocat
took instruments.
345. Trial of David Mowbray, for a Tumult* within Burgh:
2 James II. (of England) a. d. 1686. [Now first printed
from the Records of Justiciary at Edinburgh.]
Curia Justicurit, S.D.N. Regis tenta in
pretorio burgi <le £(hnbur^h, octaTO die
lucnsis Februarii 1686, per nohilem et po-
tentein Comitcni Georgium de Linlith-
|fo\v, Justiciarium Generalem, Domino
Jacobum Foulis de Collingtoune Justi-
ciarium Clericum, Johaunem Lockhart
de Castlehill, Davidem BaJfour de For-
rett, Rog;erum Hoc* de Uarcarss, Alexan-
drum Seattoune de Fittmedden, Pattriciom
Lyone de Carss, Commissionarios Justi-
ciarii dicti 8. D. N. Regis.
Curia legitime affirmata.
Intran,
David Mozcbray, shoemaker.
J E are indytcil and accused for that albeit be
the common law and lawes and practice of this
kingdom, the makeing of seditious conventions
* Fonntainhall thus writes of this Case, and
of the tumult which gare rise to it :
" January 31, and February 1, 168C. There
was a tumult and riot in the town of Edin-
burgh, b«:iiig a convocation and gathering of
the apprentices and rabble, against the avowed
and public meciiiigs for saying of mass, and
and othor popish worship, who disturbed the
chancellor's lady and others at their skailing,
by throwing dirt, and otherwise affronting
thtiiii. This was taken so ill, that some of the
boys bein;; apprehended, the privy council met
this day, and ordained a Baxter lad to be whip-
pel throupfh the Cannongato. While thehang-
niun i:$ i;oiiuf about it, the boys again rose,
beat the hangman, rescued the lad, and so con-
tinued all night making disorder: the council
called in to the assistance of Graham's com-
pany, major White's men in the castle, and
likewise the king's footguards ; and the sol-
diers being drunk, they shot with ball amongst
the boys and killed a womfia anc| a man, and
Uobeit Aldo the postoiatter's apprentice,
and assemblies, off tamnlta and ujiroarii aal At
coDvocatioDs and raiieiiigf off people in anaaii
a tomultuarie and aeditioiia way, iiillMWllfcl
spedall licence of his niajeetie or Ibe ips
trats off the place, ar crymes off ane high wA
hynous nature, and off a dangerous cm»
quence, and ongfat and^ould be flereife fi-
nished with the paine off treaaone, at lania*
patallie, and with the paine of deaA; taie
speciall be the seventieth seven aetfoortnii
parliament king Jamea the Second, it ii riM
that within the borrowea within UiTowaallki
realme, no convocations or ryaein^ off eon-
mons should be made in hindering off tbt eon-
mon law, but at the comandcnient off tbcr kd
officer, and if any does in the contrair, tfcv
goods siiall be coufiscatt to the king, and ihtf
lives in the king's will ; And be the sevenkA
fyilh act off queen Mary, her nynth parin-
ment, it is statute that no maner off pefaoae if
though he was in no confluence at all ;
some called a murder. Then all were em-
manded off the streets, and all ordained to kiif
out bo wets ; and some being apprehended, At
next day a woman and two men wereacooripii;
but to shew how afraid they were of tbe con-
mon people's inclinations, tbey bad thn
guarded all the way betwixt two filea of aai-
^uelteers and pikemen, for fear of bebtfi^
iorced again. One of the reacuera caUedMM*
bray, an embroiderer, waa apprehended, wi
got an indictment for bia life. One vkd^
what the king's advocate would anawer, if Iki
pannel should propone this defencse and cnal*
pation? ' The mass is a meeting declared Mi*
* sonable by law, I was only waaipating saA
( an assembly ; if i( bad been a fani^od aoat
' venticle I would have got tbanka ; trg^ iki
' disturbing thia meeting at kaat will not MBl
* death.' The conrt party gave it ontlka
reatriot,andofbadeumple; aotiinlQiM^
nry said privatelv, be by their dnoofliHI
ouJd ha? a beliefea ft to ha^n bin wtne ta
great
berry
.,0)5]
for Tumuli ^Uhijt BnT]
A, D. 1696-
T(
itsomever eatflite, conditlone, or degree
be off, attempt to doe or raise any hands
[men with pistol Is, cut reriD^i or other ino-
tt bellicall, wiihout licence off her w her
[asfutiello^ Nea{KiiitiiQ insurrection, hcu! he
, Ot 9Gen it. Our bis1i(^n?i and others wiU'uUy
iissembled aa if they had been icfi^oriirvl of tlic
ri^ and catj*e of it. A ilrutnrner i^ delated by
I papkts tbr draw ing his swnrd» and sayinfr,
could Hiid ID \m heart to run that through
im ; which they exponed of the papists, but
\ <^id that he nieaiied the boys. A grenadier
"Wfts rt^mitted to a council of wftr, for saying he
^would n«>l liffht in thaf. ijnarrel atfainst the pro-
ants, for be was st^orn to that rtli^ion. One
littlejohn was examined for speakini^ agiiinst
' papists : but, on a represent.itiou that ha
18 sitoie times mad, he h^us disooissed.
** The treasurer and his faction ag;cfravated
this tumuU ruijfhtily, of purpose to irritate the
chancellor to take some ri;^orous course, and
to put them to extremities j l>ut the chancellor
was adfij^ed to carry moilerately, lest it sliould
matr his designs of ad^incing' : But as 8|>oli-
wood, in his history ad annum 1596, pa^e 432,
lerves from Tacitus, that all such attempts
•n crushed ailvance the sovereigtiiv ; s« it is
be fearetl, that this may further toe popish
li^s without control, and be an arjf uraent
parliament to crave an act, rescind inir uh the
al laws &£^ainst thent, lliat they mav live
urely amoojyfsl us. Sec the 5th act ot par-
liament 156T, against hearing of ma^^. But
1^ acts of parliament on whii^h our judpres
led to punish thifi tumult, were (without
deriug the occasion of it) act 83, 1563 ;
set 1B7, 1593 ; and act 17, 1606.
" February 8, 1686. At criminal court, two
men arc panoellerl for hein^^ accessory to the
late tumult on thf 1st of Februsiry, affainst the
■Towed and publiek meetiniis For $nyiog of
ma&Bf wlicrein some were killed ; and tor res<
CU(I)^ the Baxter lad from ihe han^^nati when
he was to liescourjfcd. The lords found the
dittay rclevaot to infer the pains of death » tho'
they had no arms ; in regard the kintj *s ad? o-
cate adduced two instances where the satnti
was found ; imo, in ihe tuutult ajjainst sir
Watier Set on. 2do, in Liermont^s case in Sep-
tember 1678i when one Hog was killed by the
convent iciers. There was b^ me demur amongf
the loi-ds, whether the libel should be found re-
levant lu infer the pain of dc^th, or only to put
Ihe pannef's life in the kiu^r's uiU &iid* mercy.
Their accession bein§^ proven, the assize re-
turned them gfuiltv, so they were condemned
to be hanged on tlbe 10th of February : But
Hie priry council which sat on the 9th, re-
prieved them to a lontjcr day, that they might
obtain a pardon, fur they thought not fit to irri*
tale the mobilee loo much.
** Feb, 9* At privy council, there h an act
made in reifard of the late tumult, that alt fuas-
tern of families, i speeifilly tradesmen, shall en-
act themselves by a bond for their servants and
prentices, that they ihall not b« present, nor
sijccessorm nndcr the paine of death, to be eic
cut upon the raisers off the aaids bands, ai als _
upon them that conveen and ryse in bands.
And be tlie aughtieth third act off the same
join iu any tumults or uproars, under the pc*
nalties of such tines as the privy council shall
impose. And because it was mfornied> that
some writer lada were also accessory , the
keepers of the sigrnet were called, to intimat«
to the writers to be liable fur their men.
** Feb, ]6, 1686. At privy council, two let-
ters from the kin^ were ri^, ontj aneut the
late tumult, declaruig he resented very warmly
any injury or attempt against his chjiucellor^
whom he would ptotect to the uttermost, and
commanded tliem to malvt strict Bearch into
the authors of it by torture or otherwise ; and
accordioi^ly they named two committees for
examining it^ one of privy counsellors, and the
other of ofiicers of the army ; and because a
landlady near Heriot'a-work had caused poind
the press and other grKxls of one Watson, a
popish printer, for his mail, th»s was made a
combination, and his goods were viulenlly
taken back and t^ron^ht down to the abbay, and
he protected there. It was said^ there 'was a
privy letter fi-om the kiug^ to the chancellor,
checkins^ them for their too open masses, and
recommending to them to Ihs more cauiiout
and private.
*' February U3, 1686. The drummer, me
tioned 1st February current, is this day shot i
the links of Lt^iih by martial law, for saying
he could run his sword throuiih all the papists ;
though he denied these worda to his last ; yet
he d^ared he would not redeem his lilt: by
turning popish. The two witnesses that de-
poned against him were papists, yiz Irvine of
Bonshaiv and .- (who, falUoif
out since, called one another perjuretl ;) thougC
our law t ejects papists from witnessing : but
that is where they are declared and convicted.
** I^iarch 4, 1686. At privy council, the nar-
rative of the late tumult against the mass, being
read in council, is extended, and swelled to a
gre^t bulk, and sent to the king. One part
bore, some had spoke cootumeliously against
our Lady, which twis scoretl out, auJ the Vir-
gin M ar^ pat in. One design was, to load
colonel Douglas as negligent, and to get Clft-
Ter» put in his place."
Amot has giveo a brief report of this Case;
he calls Mowbray a shoemaker agreeably to
the Record, not an embrrjiderer as Fountain-
hall terms him, and noticing FountainhalTa
mention that two persons were tried on Fe-
bniary 8th, 1686, for being concerned in tb«
tumult ; be saya, ** The Records of Justiciarj(
testify, that no person was tried or outlawed on
account of this lumult, at this time, except
Mowbray, nor at any other time that I knoiv
of, except on the 26th of that same montfi,
whcQ Keith was tried atu) convicted.'* 8ee
the next Case.
To his Report he has subjoined some obv
I
I
1007] 2 JAMES II.
parliament of qaeen Mar^r, iDtUnlinfif Anent tbe
stcnshiDg off tumults within bun^ns, it is sta-
tut, that none of bis miyesty's subjects presume
or take upon hand to make any pri?at conven-
Tations on certain Trials for Riots, and he in-
troduces it vrith the following mention of the
law upon the subject:
*' The preamble to one of onr old statutes
emphatically describes the disorders which pre-
Tailed in this country from one of the worst of
political erils, the relaxed arm of the civil ma-
gistrate. * Forsameikle (says the statute) as
* the oversight and negligence of the civil ma-
' gistrates, and judges ordinar within this
< realm, in putting of decreets to execution,
* punishing of malcfactoors and rcbells, and
* utherwise using of their offices, as becammis,
* partelie fbr regard, and ieare of Strang pair-
* ties, and hazard of their own lives; and pairtly
* throw want of sufficient preparation for that
' effect, is the original and principnle cause
* quhair fVa [from which,] the great confusion
* and disurdour of this lande in all estaites pro-
* cecdis.' [Mary, Pari. 9, c. 83 ; Jamea 6,
Pari. 13, c. 184, Pari. 18, c. 17.] Therefore
by this, and other acts of pariiament, it is sta-
tuted, that the raising or assembling within
borouffh, conventions of the people,* without
special licence of the sovereign, or author!^
from the magistrates of the borough ; especi-
ally, if such people should presume to arm
tiierosclves, to display banners; to beat the
drum, or sound the trumpet, or to make use of
other warlike instruments whatever, it is sta-
tuteil, that persons thus offending shall suffer
the pain of death. It is further enacted, that
whoever shall disobey and resist the autliority
of the magistrates of E<linburgh, or their offi-
cers, in the execution of their duty, shall suffer
the like penalty.*'
He also thus mentions a disturbance which
had occurred in Edinburgh a few years before :
*' Upon Christmas-day, A. D. 1680, the ma-
gistrates of Edinburgh,* from that decent re-
spect wliich was due to the duke of York, who
was then in the city, interrupted the students
in their solemu procession of a Pope-burning ;
so that they were fain to burn him post-haste
in an obscure part of the town. On the 11th
of the ensuing month of January, the house of
Priest field, the seat of sir James Dick, lord
provost of Edinburgh, was wilfully set on fire,
and with all the furniture, burnt to the ground,
not without the most pregnant suspicion that it
was set on fire by some students at the Uni-
Tersity."
Of this disorder Laing writes thus:
** The students at the University of Edin-
burgh, bail engaged by an oath to bum the
Pope in effigy at Chnstmas. Notwithstand-
ing the vigilance of the magistrates and the
military, to prevent tliis juvenile insult to the
Jak^'M nUghOf they accompliahed their pur-
Trial of David Motcbrajff
[1008
tions or asseml^iei within iNQrgli, «* take apoa
hand cloath tbemselves widi weapoosnny
tyme heirefler, witboot the spedall licence if
his majestic and magistntefl within bargfa,«hcr
pose with mudi fbrtitiide uid addrcH. The
imprisonment of these youthful patrioti «■
resentedby the populaoe.' The Uue ribboa tf
the covenant, rHeiioe a true blue whif, fitn
tlie favourite colours of the oovenmnt, adcnlHl
it is said, from an injunction to the Jews (l«aa»
hers, XV. 38.) Fountainhall's Mem. MS.] w»
revived by boys and apprentices, withaon>
scription against the pope ; anil the eomt aatf
retorted by wearing red ribbons, with a dcfke
expressive of their abhorrenoe of ftmaliQiB.
Amidst these absurd disputes the provost's bosi
was bufnt to the ground. The aoeidcnt va
ascribed to revenge, and although no discsra;
was made, the University was shut up, and Ik
students wers expelledrfor a time from tb
town. These incidents convinoed the disem-
ing ChnrchOl that the duke was unable, wsh-
out his brother's soppOrt, to maintain hiwdf
in Scotland, much less to assert his ngkd
succession by arms.**
Wodrow's moie cifcunstantial aeesnBt ii tf
folk>ws : ^
'* In the begrinning of this year 1681, Ik
council were much taken up in |i'iosicsri^t
some boys in the college of Edinfiuigb, ftr
their burning of the Pope, on the 85th of D^
cember 1680. This the duke of Yoit odi
not bear, and a great empiiry waa nwde iM
it. The matter of fact, as fhr as I can gather ii
from some missive letters writ at this t&e, «u
thus. Some of the students that day bnM^
up to the head of the Coweate, the effigies ef
the pope in his robes, with bis keys, mitre, «i
triple crown ; and after they haa ezconmnui-
cated him, they carried him dbout in a chair,
of the same form with that wherein be ii
elected at Rome, to the foot of the Black-fri0
>Vynd. The boys knowing the thing bad tsbi
air, and that the soldiers and guards wereresiy
to oppose them in the hi^rh town, gave its*
they were to carry his holiness in procesflosii
I the Grass- market, Uie place of
of criminals ; upon which the guards, linb
expecting such a tridc, went all down towit^
the Grass- market. Meanwhile, the hap
turned up with their procession by the Bbcs-
friars Wynd, towards the high street, thiserf
them going before with kindled torches : wkn
they came to the high street, at the head of tk
wynd, finding they could go no further, the
chair was set down, sentence was passed apM
his holiness, and he condemned to be bonli
and accordingly the torchmen drew near, aii
did their woric, and by the help of guo-powdff
the effigies was blown up. This was aboot tts
of the clock, and as soon as the chair aapeiif'
at the head of the Wynd, Linlithgow, hisies,
and some soldiers^ made an attack upon fhi
boys with sword m hand. They stood tbor
grouad, and warned him to bewamwkOBfei
4
joodj
Jar Twnull wUKiii Burgh,
A. D. 1686.
[101(1
•«ch tamults ami uproar^s chaiicettt t«i be,
lilitlrr Uie poine of draUt ; and be itietteteii-
l#eiiib JAi'i, 9iut;tiieit)tli iiarliammtt otf kia^
James Utc Sizt, all and ^^haisouiever acts ituule
■triftck, f4>r he h^d relations among them, atid
got their btminGss done.
^^ Tti« rise of this appearance the students
made, was tbts, asi ( am informed by one of
them, now a reverend mini^iter of this church,
Several of Uiem happened to f>e l^»^elher in a
taT^t'it. where thrre \\\v% hanging a copper
|i' Li iiit- maniitr of huminj; the
|t< r ph'ri*M!d them si»i thut in
lb iri-i V linn red in u oMtcert to do
il^ name at li. The iniUer came to
iilu! air, aii^^ ':■,., i^carp'e llidputhf who had
been y^xy octire in the projecl, was seized and
put in prison the very day Ix-'fore tlte defii|>Ti
was lo be executed, and a nevere search made
for the efUtirie9^ but in vain. As we have
0e«n« the itcliolam got their IxisinCMa done, but
next dav severat ffcntlemen'ii sonsi were callcfl
l»c^rc tlie coinicil, and particularly examined
tvbelher any Freibyteriau gentlemen^ or mi-
oialerSf did contrive, asitst, or direct them in
burninir ^be pope ; they all declared, ihey did
•oC. The ch^iocellor was dviland favourable
la llie y*>nnEf g'enilt-men. The biftbops e(idca<
f oared t* ensnare (he scholars with questions
ttbout their confomiity, and other captious
headv ; however, no ndvantagewasgotoftbem,
and they were di«raissed (liatday.
** Oidv Blr. Ridpath t h^n^ entering iip«n his
pUilosopIiy, and a youth of pronusing genius.
was very hardly treated, Sir >V iltiaoi Pateison
s rude to htm, and, I am told, lie was beat,
id had hw ln»r torn by ihc cooDcil sertants;
■ndeilbert'^ icil, or their committee^
lie was b«L. naliic country, for no
other caiiae Unn iiis secesiion to this matter,
** About the Aioe time the same t^piric was
1^ ' L t Glatgow, in a different manner.
'J ut ou lav on m, and eoloure^l ri bbotis,
iU4i* o*ut:i uiarks of d-*- * - aa, they said,
lolieniofUidrbeiag y For litis, se-
trerat of ilitii- liA<L*r.. . ; ^ .,_.vularly the pre-
sent t laiuhlc, then a studeiK
there, 'ore the ma»terg and arch-
l»ishot». ADoaodalo defended himi^lf and his
ii;llowS| with bnsknesA imough, and spcakinr to
the bishop, cal1e4l him only Sir. Mr. Nicotson
Ilia regent took him up, and said, William, yoii
do nnt uniien^tntid wb^nn ynu speak to, he is a
greater fieraoii than ytiointlf, Anmindnle very
qii ' ' ' til, 1 know the king htis
i>' him a spirit nal lord, but
I Mij(M» lihrv^iHv iijui the pip«ir of Arbroth's sou
^tid mv rathtf '» ^nti are not to be cMtipared ;
mod ttifdnl, he Iwid thf* vtinity to aay, he had
mora tioliic h]iMHJ iij hvs itinMf than ufl the four-
tcan put t«M^^t,tber. Nothing further lould be
Diade i»f thi».
* * it f IMinburgh, several of the students wt-re
h' btHidci Mr Hidpatb, which irri-
|j»L .4t so far, thftt i lie \ threatened to
bom the prbrusi^s bou&c at PViastfield, wba,
VOL. XI.
WW
be bis majastie and his royal I progenUorS, and
llie esiaii^ oflT the reahnr * - ^-vr--- '
mutts and unla^lull mei
Within burgh, arr«lified &.. ; -,.^. ,,..*., ...,.■ ..t%
they reckoned, should have interposed tn be<4
half of the students, since the lowu of Edin-
burgh are patrons to the college, and yet, it
seems, he had beeu very virulent by his pro-
claniatioiis and otlierwii^e against them : and in
a few dayi: the house of Pneslfield was accord^
ingly burnt ; whereupon the council euiit a pro-
clHinaiion, Janitsry 13, this rear, ofltring two
thousand ruerks and a i^iiki«slon. to tuty who
would discover tlie actors: but I don't tind any
di?«t^very was made ; yea, some wanted not
their jealoutiius, bis hou^e was burnt with ti
view to bring an odium on &ome people whir
had ool the le^st tihare in the buramg.
♦* January 4. The mnslers of the college of
Ediiibuigh present a petition to the council, de«
daring their abhorrence ot the late tumultuary
gathering of their scholat^ and others. Decern*
ber 25 la>.t. The council i-emit it to the corn-
mi tte fur public affiiirs, and so 1 can giv« the
less «1 count of what was done. In the
couu 1 meet with what follows, Ja-
nuary t>, ■ J itt* lonis of privy council consider-
*' ing, tiiat bonds and combmations have been
* entered into by the fitudents of ihecoUrge, nod
* wvenil tumuhs raised thereupon in the city,
' and the government it-self is defatncsd by tbeui,
*' ordain the magistrates of Edinburgh instimtly
' tu c;iusc shut the collegp gittes, and cause tbp
'classes be dissolved tiH further order, and or-
*' daiu lite said magistrates to appeai' before th«
* council, that they may hear what they have
* to offer tor tlie security of tlte city^ aad ihs
* king's peace therein,'
*' Ujion the ^Ist of January, the eooncll emit
another proclamation coticerniog the studenta
in the college, wherein tJiev charge them with
ealritig into boaftt» and comlbinations, * obliging
** titemselves to adhere one to another, m eastt
«oflhem abould be ct^lled in questioo, which,
*■ they say, appeared from the confessions of
^ tbe masters and soiue sitadents: they com-
^ phiin like%vise of their aatefnbUng, Decemlw^r
( S^ lost in a ttNDultuary way, (but not n word
^ orburoing of the pope) and associating them-
* aekefi with prentices, and introducing a new
* way of tutuulluating, by ptilting up blue rib-
* bcuni assigns and cognizances; and that being
' justly ihrcatned for tbese things, tb«y tn&de
^ totnults ui the streets, diMjuietcd the nobihty
* and gentry in tlio streets, otnl tlirrntrK-d tb#
' provoiit with burning his house^ whicli inii
« i'ew^ays was done, Wher* ' n»uncil
*• by an net of this dfty*s dt«t< rderad
* the collcfcfe gates to he shu4, . ' >ke
* furthtrr tnal tl*ereanc?it, tlo now < ilt
* the ^udenls (<• nrlire fiRf-en miles t-
' burt*h, liiiliin twenty tour Iuaji t>v
* ooDie within the said hmits with i>f
* tile counciif tttider the [min at' being troofecd aa
** This matlar codad tit ati Act of Coan«iA
1011]
2 JAMES II.
Trial ofDmidiftmbngf^
[UN
daioed to be pnti toeaceralioneagiiBfli khe eon-
tra? eeneni theroflr in all poyiita, with thia adi-
tioiie, that do peraone or peraons witliin burgh,
off whatsoiueverrank, qualitie, or coudilioiie,
presume or take upon hand, under whatsom-
ever collour or pretext to conrocat or aaaeiuUe
themselves toj^ether at any occaasione, except
they make dew intimatioDe offthe lawfnllcanaa
of ther nieetincf to the proviat and baizlieoff
the briigh, and obtainc ther licence tberto, and
be the said act tlie aaida unlawfull meetings,
' " " " ^p^^— — ^^^1 I ■ ■ ■ II.
February 1, ordering all ibe students to take
the oath of allegiance ; and if the masters ac-
cept of any scholars otherwise, they are ipm
facto to be deposed."
Council's Act about the Collegt of Edinhurgh^
February 1, 1681.
" Forasfnnch as there being a petition pre-
sented to his majesty's privy council, by the
magiittrates and council of Edinburgh, and
principal masters, and regents of the oollege
thereof, desiring, that upon the considerations
therein contained, and upon the oUigements
offered by them, they might be allowed to
make open classes, and reeei?e the scholars,
notwithstanding of the late act and proclama-
tion of council: The lorda of hia mi^csty's
privy coimcil, upon consideration of the fureaaid
petition, and of a report-made by a committee
of their own number, in the said' matter, do al-
low the magistrates of Edmburgh, principal,
masters, and regenta of thecollei^ thereof, to
make open the said college, notwitltftanding of
the late act and proclamatioB ; and do ordain
the said magistrates, before re-entry of the
students, or any other students to be entered for
this year, to take theur Others, tutor, or friend
Mutioner for them, by bond, for their orderly
and (leaceable behaviour in time coming, and
according to the bond, and under the penalties
aAermentionetl, fiz. a nobleman's son, under
tlic penalty of four thousand merks, a barr»n or
chief gentleman, two thoiisand merks, a mer-
chant or burgess's son, one thousand merks,
the son of a tradesman, or fierson of other in-
ierior quality, five hundred merks Scots mo-
ney ; and that the saiil magistrates be answer-
able for the sufficiency of the (*antioner, and
re|M)rt an account of ihcir dilii^ence once
every month, antil the ordinary time of the
rising fif the college. Follows' the tenor of
the bond above mentioned. I < bind
■ and ulm^ me, my heirs and successors, as
caiitionertfind surety, acted
priiy council, for '
and the penons prawBt theraiarc dadawdta
be facticMM and aeditioas umd ordained Isba
punished in ther bodieSy gooda mod ««, with
a)l rigoar, conforme to th« iMvet of tlua mhae.
Lykaa be the lyfth act, first aeaaioB, lint par-
liament king Cbviea the Sooosrf, it is d».
dared. That it is and shaH be higk tmaaoe ta
the aolgecta off ilua ieaknff, or any minbar off
them, more or leaa, open aiij graond or pic-
textwhataomevertoryaohi anaea withoiit his
majestie's speciaU
combinatiooB, or shall he aoceaaorj to any ta-
mults or uolawfid convocatiooa, andv Iha
penalty of ■■ — in caae nf lailia. Coa-
sentingtbir presents be rryiaii ale la the haata
of privy council, that letters of Jieming on six
days and othera, may bo diraot beneiipoB, aaA
eonsiituloB my ivaoamtors, te.
And further, the aaid hirds do ordain tlw f rn-
dpal and regenta o^' tho aaid nottMn,
they receivo any of the atndentoo^ tko ttam
coHf'i'v of Edinlmrgb, tbnt the said
shuli during the whole time and space
h(* shall remain a ' ' '
upper claasea, being the wemt^
magistrand daaacs, into their aaid
chunes, to aee them take the oatli of ^
ance, in presence of tho biahon of Fdinhaiffc,
which IB Bot to hinder the takimp of tko ani
oath by anch aa ahall reecive degmw. Ad
the mid lorda declare that in caae tlia nrinnpd
or regenta ahall re-emeraBT of the aaid rta-
dentB, or rooetve otheca, witlioatmiiw ia At
8oeiirit|rt Mid taking the oath of ■fltgiiutBi, ■
aforesaid, then and in that caae, ttia piiaciial
and regenta shall, ipmfmeU, bn depiM^
theur aaid officee and fonction in the aaid od«
lege, and then- pkeea orduned to be Jeiinsi
vacant, by the magiatrateo of Ediabaifb,
patrons of the college, and tliey allowed n
appoint others to supply the same. Aad tbt
aaid lords do ordain, that before the said atid-
ents re-enter, or new stadenta be receiveil is
the said college, such student a fimt eoMe
under their hands, before the biahop offidb-
burgh, (when tliey take the oath of ftllmiancc)
that they shall keep the church, and waa
upon divine worship, according to law, whiek
the said principal and regenta are berab? sr-
dervd to see done, and not to receive into lbs
said college, any such students entoied or H
be entere«l, without doing of the same, vads
tin; certification aforesaid. And the aaid Ml
do ordain and appoint that ki the visitatioos if
the other universities of the kingdom, theibi«>
said rules for taking the (»ath of allegiaici^
and engagements to keep the church, ae p*
in execution in iheee resfMsctive univrrsiSMi»
in the books of ! and that the principal mastera, and n
student in the ; thereof, return to to his majesty's prirv
that
siudt'nt in ihe college of
Edinburgh and a member of that society, live
orderly and peaceably ; ami that he shall not
bo HfTccssory to the I'^.-arh of the public |)eace,
ncitlicT by his Lpowlcdge, causing, sending,
honndint* nut, nr ratihabition ; and that he
ahall engage himself in no unlawful bonds or .
oil, an account of whnt obedienc^ haa
given to ibeir art, cnjoyuing the atiidenls n
take the oath of allegiance at tlieir lauieatisa:
And the said lords do discliarge any of the
rest of the universities, to recvive aav sooil
students as ha\c lult or shall leave the oallfgc
of Edinburgh, u|H>n the account of their M^
fusal of tlie engugoinenta above
they wiilbeansu'tnible."
I0I3]
Jor Tumuli wkhtn Burgh*
A. D. lem.
[iOH
It interprtncd llicrto^ as in the ftaitblftwes and
mctR off )>Ai liacneDt at inot^ Teitpftfv ta cootamerf.
' NcwM-the!«s?e ft is off vtritie, tbut ibe said
[3>avid Mowbray shacking off all fear oflT God,
fjre^ird and conscience ulT hh dnty^ and al-
^eaflgeance and respect to aulUoritie, has
iireaumed to violat and ointratfeet] the aadds
laws and acta o(f partiarneiiti and to comiBttt
the foreaaiits bynoua cryms therhy prohibit, in
0tia tarr us upon the taat day off Jauuary 16H(3
3rears, a most sedllioua anil numerous cotnmo-
tiatie and rysein^ otT common^^ a^nil unlawful]
convocattone, and a privieaod tumaltuouscon-
Tf^ntion, assi'mlUe, and uproar, h as made and
raised be several I persona within tlio Caafio-
^aitte and his DiAje^tic citie off Ediuburgb,
hein^ the chiefT louo« aoe brugh oif bis ancient
Itimimne, and a pku^ wher for a long tyme his
luajestie and tus pn^dicescors has fx^n gracions-
Ite pleased that hh authoHtte Khttuld be emi>
nenitie represented in the high ood fiu|»rpttme
judicatories off parliament, pvivie cmiiicill, ses-
rtoBC, jiBticA courts atldmimfttie and .others^
nrhicb doe ordinarlie silt and ar keept ther to
tbe ^reat benefite and inbabitants off the said
brugrh upon oceasionc off tlie eonfinence oft' re-
paireia^ ofF tiie oobilitit*, |f eatri^, and people oJf
ail qualities from ;UI tlia cnryAii ofi* this king-
diifiie, and wher (a I leajit sU hi* luajeatle'a p^*
lice near ih« same) bia luujestk^s hi^h chait-
cellurand uffieers off statu, %y ere ami are re-
Elding' flor the tyme, and about three or four a-
Hoek HI the efternonne a mo^t irediikMi^ and
, HHtlouoits emifocatiofie btwI unwarrantable
I wy^emt waa ouiile and eonreene*] tn th^ Can >
nangaite, anil a ^reat many penons o<f the raf^
h\e and raacaKtie of Ihe people, did ryse, eon-
ve«n» CflOTOCTEt and a^emWe tc^yetber^ i^itbotJt
contand oif ihe hearf officer am! commander ofl*
the placp, and wftbont au}' mb^r hiwfrtll war-
rand) armed n itb pisitHb, t^Tord^i dark^^ and
olbcr weapons of^iwire, aad did presnme in a
ntfmi Jmid and rpfeellioo* manrr tf> cnnie and
nppeir in t(*e htc^h and iih»^t pwbfick place
olf tl»« high alreel of!' the Canuo^fattte,
wher for a long iymti thr ««d tnmidt attii up-
■ iifti' 4>itl con tine w with gnsat cryrs and out-
■lleotia 8peecbe«> threttthiin|^ and memvceinrr,
>M4t aU the circumfltaiM?e8 o^ rnsolenct? \r hf eh
mr ineidifnt to |Kipnhir tumnlH urn) turie, in-
vadetS, assatilletl and yett upon aererall off bi«
flTMijestiii^s gf^oil subjvcU, bentt ami wounded
them, roblied atid ruiile4 the cloaks, hotts, pe-
rif icks, and utb^o- abulzbmentR, dragcd eaine
of them throug;h the £ir<M»t^ threwv Kloaes, dust
and other uiaterialls at lUeta, and cou^^uiitted
all ulher acta oiF indi^nitie, viultrnee atid fitrie,
to the bij^h and maiufeet contempt off kia na-
jesli«'s authoritie and lawes^ and not Wiu^ sa-
tisfied thertiv^ith they in a most seditioiK and
did proceed In that bijjht oif tedilione and re-
bellion, that bis excdlencrie biB majcstie*s ije-
nerafJ ofl' his forcea haVeiag apoyot^d the
tftiairds ofl* tbe citie to be assistant to tbe bird
protost and raai;i«1nilefoff the brn^rh, in dissi-
putdni^ and <iueting^ off the s^\d ttimidt and
upniar, and bis exellencie being present bim-
■elf with aeft^rail iHher!i off hi? majt^ie's oHi-
cers, they did reiiat ami withstand, and with
atones did wound severall off bia majestte^i
fiouldiours and other good subjects^ eoittinewed
their insolence and tumults, and advrimied and
Sratheted together in ue re rail other pairls off
the cittie, inraiding and aetteing upon hitr ma«
j«9tic'» sulwects and souWiers and comfiutlinsf
all acts otf furie and oppresaiotie* untiJl ihty
were overpowered and di^sipat by the magta-
Iraies forces ; and in the said uprf>ar, ther .
being screraF! ptisoners taken and apprebemht,
the magiftratea of Edinburgh the nixt day
beini^ ibe first day of February instant being
solemnliu melt in it oourt« and ef'ier ex&tuina-
lion, huTcIng found that Robert Grieve aervitor
to widdow ^unand, BaJtter [Baker] in tba
Cannogaitte, was a aieine actor in the $»id iti-
sifrrectioni*, they ordained htm to be whipt tn
wiamter perscrybil be ther sentence, and bare-
ing ordered the towne officer, with the common
ex^ecutioner, to carry him t<> tbe Cannogaile^
being the place wbeV the tumult first did begin,
ther to iiDt^rgoe bia pnmshment; which
beinty accordtnSy <lone, and the saiil Robert
liriete being brofigbt to the place, antJ tbe
eommon executioner being to doe his dutie»
you the sniil Darid Mowbray, and aererall
others off the ratcafitie nn^ meanest sort of tba
peeple, did off new most rfisloyallie and inda-
riftihic and nnwarrantfuHie, t^oirvocnt and as-
semble yoursehes together in a most ae«iitioua
and funiuUuotis miner, invadtt and *ett upon
the towtie officers and oth«rs assistant to tbetti
in executiona off his majestic'a biwes, and be
t'ort^ amt \»foleiM?e rescued anil look from them
the said llolvcrt Griere^^ and in a hmvailing and
rn^fdent raaner carrj'ed bim downe the streets,
!;ett bim at freedom and liUertie, luid with
great cryea, oulrag;ious upeecbe^, ana menaces,
tbreatned and terrified bis majesii«'8 good sub-
jects ; and the toimu otftcers bavving disyred
>'uu to begone, you answerer! you would not,
but abyde be tbe trades, iu higti and manifest
coateaipt off his maje^tie^a authorttie and lavm,
aoil to tbe effeet you aiid tba rcat oif tbe rabble
might coofirme your disloyaltie and unwar*
raataMe couYocaiione in maner forsaid, you and
man^ others off tbe rascallitie fbrsajd, lo tlie
nuuilieT of fyve hundred persons, or therby, tba
same pvening, about seviue a clock at night,
<lid ia tbe CaDDogaile and chtie off E>kn burgh,
at^sault and invade the dwatlioLf huu»efiof i
tumultuary inaner, eauie up (tie sttcets ol* the i rait loyall suttjects, aearchiug for thefii, ruffled '
Cannogaitte tn a full body, futrcHl wilhia the
Nether Bow off his maju^c*s aucieut utie^ ixh^
saulted the bouses off scveruU oO^ hm maitsiie^a
g'ood subjects, and with bai rs off 0*011 and other
instruments, entleavourc^l to brake open their
«loora ; lyltiu duriog the tyme forsaul, they
ther gimds, Iroke up ther dtior-v and wimlowes,
HOif iherefrer i« >.uli£ (Hid sett upon bis majes-
tie's oftif^rs auf^ sf»uldiours, beau, bruised, and
wottbl many of them beat up nod down tbe
streets in a mitst seditious and tumultuarie
nianner, t^miitteiitg alt acta (Hf bostilitie, op^
1015]
• JAMES II.
(.I'ossione and fiirie, most ilisloyallie anil sedi-
tiuiislic opposed and withstood his majestie's
aiithoritUs iu the persons of the raids inagis-
tnites, officers and souhliours, until! ye were
overpowered and dissipat, in which tumultuous
ronvocatione and asscniblie ther were two off
his majestie's uood subjects killed ; Wherlhrow
you the said Duvid Mowbray is t^uillie off se-
diiif/ne and ofl' a coinpHcation, off reinaincing in
iiVTiOiis crymes, of convocatione and ryseiu^
niV lumults within bruffhs, treasone, mutiny
ai;d cuutraveeuing^ of the tbrsaids lawes and
acts off parliament, at least off ane or other off
them, and was actor, at least present, in the
said tumult and commotione, and committein)^
the (Tymcs lorsuid, and airt and part off the
same, and has incurre<l the paine of death and
loss of lyfe and ino\e:ibies, and the samen
oui^ht to he execute and inflicted upon you the
said David Mowbray to the terror and example
off others to comitt the lyke herefter.
Persewer. — Sir Cieorgc M'Kenzie of Ro-
ahaug-h, his majesties advocat.
His Mujcities Advocat produced ane Act and
Order off Councill for persewin^ of the nersonc
above named, wheroff the tenor followes:
£dinbur)[;h, the second off February, 1686
years. Tlie lords of his majesties privie councill
liavinpf considered tiie examinatione of David
Mowbray, shonmaker, and the depositions off
the- ton lie oHicers. proveint^ that he was active
in tlie tumult yesterday, att the rescuing off
the BiLXier hoy, who was ordureil to he
scourired -y tlie magistrats off Kdinburgh for
acc^ssi'iiie to the tumult on 8undaye» night,
do. > heiiov (,ate order and warrand to his ma-
jeslie:; advocat to process the suid David
Mowbray U't'ote the Lords Commissioners off
Ju&ii'iario fot' ihc said cryuK^ upon Muuday
liixt ; a-; also to proeesse Kubf'ii (jlreive, the
jJaxier uoy, who -.vas rescued yesterday, i'or
th»: sail vc\ me, in onler lo his bein^ declared
lugiiiFc. Kxiractby me,
^'tcSuhfcriUtur/ Wil. Patersox, CI. C'on.
Tlie Lords gave warrand and allowance to
sir Talrick If ume, or sir David Thoircs, or
any other advocat the pannall sliimld re.-juj re,
to appear and plead his defence.
Duvii Moicbrai/j pannall, confesses and de-
clares judieiallie, in presence of the justices
and assysers, tiiat he was present on Monday
last at the convocatione lybelM, and assisted
in rpsniing the Baxter from the towne oflic^rs,
craves God and the kinur pardone for his of-
fence, and come.<% in his ;:iujesties will, and de-
ciairt-N he is hcartiiliesorr;e and poiietenttherfor,
and that he should have tude the least ucces-
f ione therto.
Sic Subscribiiur, David Mowdray,
LiNLrruGow, I. P. D.
His Mujaiies Advocat declaires, he rc-
ttricts the lybcll to that pairt thereoff anent the
f aunali*s aoccssione to the tumult on Munday
Mk the foreuouue In retcuiug the Baxter from
Trial of David Mmabrag. [ 1018
the execntione off juttiop, mod the pnnniU*!
being airt and pairt tbcroff.
The Lonls finds the dittay reUvanl u k is
restricted to inferr the paine of death*
AjMlBA.
Mr. John Dempster, of Pitlirer.
Collondl James Sleinzies.
James Justice, of Easter Cricbton.
John Maxwell, of Overmayns.
James Wire, merchand.
Mr. James Eilies, of Stenoiiaemill.
Robert Campbell, merch&nt.
' Pat. Steil^ vintiner.
Mungo Wood, merchant.
Duncan Mcintosh, mercliant.
Sir I'atrick Nesbit of Deane.
Alexander Cruicksbanks, merchant.'
William Cockbume, merchant.
Thomas Adair, barber.
Michael Allane, merchant.
The Assyse lawfullie sworn ; no oljectioa of
law in the coutrair.
Tii£ Probatioh.
If is Majestiet Advocat for probation addnod
the panoairs own judicial! Cbnfession, aborv
written, which was reoeivcil in presence of llie
Assyse being sworne, together with the wit-
nesses ef)er dei>oning.
George lirPFurlane, ane off the towne ofS-
cersoff Edinburgh, aged tliretlie fire yon,
roaried, purged, and sworne, depones that og
Monday last he being ane off the towne oi-
cers, who was employed by the mog^istrates i*
execute the sentance against IlobertG reive, tbe
Baxter, he sawe the panall, David Mowbny,
prc^ntin the tumult wUea they came to res-
cue the Baxter, and that the deuouent called »
31owhray, and desyred him to oe gone, wbicii
he refused to doe and said that he woukl (air
part with the trads, and efter the Uaxter «»
rcbcucd ir«>m the officers hands, he saw the
pannall fake him by the hand and evij
him down the way in the tumult, depcw
tlie persons present in the tumult were cry«c$
and swearing outrageously cauta Mcientiepaiit ;
and this is the truth as be shall aosav
f o ixod ; depons he hade a stick in his hand.
Sic ^abicribiiury G. M'Faklake, Otficcr*
William Mnyney officer, ac^i*d twentie setea
vears, man-ied, purged and sworn, depons tbil
( :i Munday last, the tyme of the tumult, in the
f-trenoon, he sawe David Mowbray, the panniH,
[iresent in the midst Of the tumult, and the de-
;>onent disyred him to goe home ; to which be
. msivered that he would stay a while and take
i a share with the rest, and thcrefter tuc |ienooe
I present in tlie tumult did rescue the Baxter
from the towne officers, and tlirewe three eff
them to the ground, and this the truth as ke
shall ansM'er to God.
Sic Subscribitur^ >Viluam Maisc.
John Tkontione, towne officer, aged ihreltii
I0I9J
f JAMES n.
Trial qfAlexomief Kekh^
[MMO
thtrto, and that notbing be (km* or ttfempted
by tli€iD in their saids meetingi wbieh may
tend to Chc dvrogatione or ▼iolattona off theaora
«ff (Ku-banient lawes and coastitalioiiet made
for tbe wett and ^vet off tbe ssida burf^ht, de-
clarein^the said onianrf till meetingi and the p«»-
sons present therat, to be factiooa and seditious,
and all proceeding therin to be null and off noare
availl, and tbe eaids persons to be punisbed in
ther bodies, c^ooda and jrear, with all rigour
coufornoe to the lawes off this rcahne ; Lykaa
by the fitlh act first sesaioue first parliament
off king Charles the second, it is declared. Thai
it is and shall be high treasoue to the suhjecta
of this his realmc, or any number of them,
more or lesse, upon any collour or ftretext
wbatsomever to ryse in armes without his ma-
jesties speciall authoritie and approbatione,
first interponed therto as in tbe saids lawes and
acts of parliament at more length is contained :
Nerertnelefise It is of vcriiie that the said Alex-
ander Keith shackcin^ off all fear off God, re-
gaird and conscience off hii duty, alleadgance
and respect to his majestic and his authority,
lirs presumed to violate and coiiterv'eeo the
Saids laws and acts oiT parliament, and to com-
mitt the forsaids hynous crvines thereby pro-
hibit, in sua farr as upon the last day off Ja-
nuary last 16(>6 J cares, a most seditious and
numerous conventione and ryseing' off com-
mons and uiiiawfull convocations, and a
privie tumultuous conventione assctmhlie and
uproar was made and raised within the Can-
no<;ate, and his majesties citie of Edia-
burgh, and about three or four a clock in
the efWrnoon a most seditious and imtymoiis
convocatioue and lui warrantable ryscing was
made and conveoned in the Canno<raite, and a
great many of the rable and ra&caUitie off the
people did ryse, conv^-eu, convoeat and assem-
ble together, without command off the head
ofiiccr, magistrate or commander of the place,
or without any other lawful! warrand, armed
with swords, durks, pistolN, staves, or any
other invasive amies, and did presume, in a
most bold and rebtllious maner, to come and
appear in the high and most publict place of the
high street of the Cunnogaite, wherfbr a long
tyme the said tumult and uproar did continue
with great cryes, ontrsgoous s|»oeche8, threat-
tenings ami menaces, and all the circumstances
off iusolencc which are incident to |K>pular tu-
mults and Curie, in vad it, assaulted and sett upon
severall off his majes'ie's good subjects, beatte
and woundit them, roblicd and rifled titem off
ther cloathes, draged them throw the streets,
threw Ktones at them, and committed ail acts
off indignitie, violence and fnrie in high and
manifest contempt of his majesties autlioritie
and lawes ; And not being satisfied therewith,
they in a most seditious ami tnmultuarj^ maner
came up the streets off Kdinhurglt, in a full
bodie, eiitred within the Nctherbow, his majes"
ties saiil ancient citie, assaulted the houses off
sevcrall off his raafesties good subjects, and
with harrs of iron and other instruments, en-
deavoured to brake open ther duores, and
•ry Tcd to tbit M^ «ff aaAioiie aad rfMine,
that bisexdteicie hit maicstia ypeMnllorVit
fbrcei havcmjip apoyntea Iha giiwia off tbe
citie to be osistaat to the Lofd Prava* ani
magistrates off tbobw^gli, in diflMpatemgaid
^ueyetnig off tbe said tamult and upraar, ■!
bis excelleacie being jiiawt himadf wilb At
Lo«d Provial and oilier maeiatnttf, aad w-
veratt offioeia off hia maieatia^a foreea, diejdU
resist and withstand, aiMlwith alooa and aihif
matoriaMa, and weapons, did wound aafaraH iff
bism^eatie's good aalgecta* cootiaewsd Ikr
insolence and tumults, and advanced and g^
tbered together in aeverall other pairta off ik
Citie, invadeing and netting upon hia m^
tie's subiecti and 80iddiera» and oommittii^dl
acts ofl furie and violence, until! thej ma
overpowered atid disinata bj bit aiysrifli
forces ; Dureing tbe which tumult and npna;
the said Alexander Keitli, fencing mla,
with aeverall others tradsmeu, prentiaca orAi
lyke, to the number off eighteen or tbeibj, U
most unwarrantablie and treaaonablie eoaiwl
and assemble themselves together in aeda
posest be Margrat Angus, on the aoulh wfki
the high street off EUinburBli, at Grayes dai
head, pertvnehig to widitow Ginhroad^ ad
ther most treasouablie diacouraed aad fiU
of the said tnmult and uproar, and the fsam
present therat, and drank aeverall heafda a
the confiuuone off the Papists, a lieahfa lotb
colliginers, and a health to the trades ; and lb
said Alexander Keith avowed and said, tfaitk
and tbe trads lads sbonld be arenged m it
toune guaird, and particnlarlie upon -
Johnstoune, sone tothedeceaat Major Jfli-
stoune, who offred to beat them iff tbey awU
not goe off the streets the tyme of the tnaidt,
consulted, advysed and determined to rjw.
concurr with, and aid any peranns that slwoU
thercfVer ry se in tumults or uproars, witbialis
citie off Edinburgh or suburba theroff, and ptf-
ticularlic the said Alexander Keith did bv^
the forsaid healths, and ther it waa poUiciae
talked (hat ther would be a great tuaialt istk
toune, ami that it was fk for as many anna a
they GouUl, and being of severall bodies «i
incorporations, tbey did all undertake ta sped*
those, and that it was fitt in the first plaorti
rescue two lads that wer taken in thetandt;
and the said Alexamler Keith declared, diH
he would help them iu rescueing of these tv«
lads and raiseing the tumult, and they dki it-
solve that they would goe to the to\»-niff|teii
commandit by captaine Grahame, xmd miiM
them, and take ther armes from them, aadtka
they would gett assistance from the eoanivfi
and would pull downe the papints houses ■*!
stopt ther mcetinf^. ^herthrowe yoo ^
said Alexander Keuh ar g^iltv off sedito
mutinie, conversatione, rysein^ ni tunoll, ad
uproares, within butgb, conventioBs and 9-
semblies, unlawfoll meetinga and lammiliut
and tlie other crymes above apeeiflledi ar«B*
other of them, and was actor at Icaatairtai
pain of the samen, and has incurred the Y'^ I
offtreasone, at least the. paine ^ dcaihi i^ I
mi]
Jbr JSsdkim^ ^c. m Du/glL
k. D. tens,
[I0«
to He exc'cut and inflicted ufion you to the tcrivr
auiJ rxamjile off oUiers to cotnaiitt ibe lylce
Prrjrfn?^r— His Majntu't AdViKnt. Ills
Majefitie's Athocut |»rofhiced »ne ar.l aiiii war*
tand off his inajcstie's pririe coutjcitl for per-
m^wiojyroH' Hip said iilexaader K«ith, tt hereof
llietf'nur follow*:
TUc Lords off lilt tniijestie*9 priTj counciS
doe heirlty g'ive order and trarrand to liis ma-
jcirtie*s advnoal to persew a process at Kis
iit^tanct; hijfor Ihe Frfirih Juslice H " 'V Tns-
tiiC Clerk and remanent Lords C ' rs
oR\»-— — * ii™.,i... e-
byi^u, .... ...., , ,,..jlt,
withio itie toivnt.' to pre-
•o$rao&se ^^iUiess tit any
Citji u^tbimt
Ell ,. ^ . . .UN. CL
S. Coo.
Hit MajeUieU Advocat decl»ireft, dia4 he re-
ttrkiii the lybell to tlie meehtig' at thecidlar,
mud his being present, and ccr»cuii*ein|^ wlUi
his accom|ditifek ul the discuuriie that vva« tb^r^
eonceriiiiiiT (he designeoff ryseiug Lq aruieSi
ftud the falling upon capiaiDe Gvam'ii i^ualrds,
tmi\ aproveioj^ on the tumult in maner men-
li<»»iHl iu the dittay, and that the satiie iuferre
Ibe lots of I v'e and moveables, nlletmrlie.
The L'vi.I Jiisiice Gauerall, Jusiire Clak,
sod Co»i - rit\Iu*ticiapy, h:iTt in^ con-
■idcreil _'.[ with liu miiHslie'^. AdroctL^
re- 'bey hnd l itnd aiii and
|i5ii . IIS its* re^ii .vant, and re-
m\tA the aamen to the kuowledge of ane
^Mfyae*
A«S1S4.
toCIaverhouie,
^3fr. Dai^id nmlmmpbrfiiliei
ninaaL
-Li>. ,
Ir. Ji*hu Furvi*, "■
Indrew Fraser, off U
TilUam Rnile, of Halijrfijve,
Forbes, of liallogie,
fajor James Wood^
/Me,
"^ aizile,
nitrcbanti
BIr. George Jolhe, cnerctiant.
The Aff^yac lawful! ie avmrpc^ no dijtolioD off
ibfl iaw ia ihe caotrair.
^ , udiierd
Uj' t to say :
J /'/j Krrr* ^erriior to Patrick Drv«ilailJ,
uit.ih iti r'ilijiljiiri'h Ktred tinri*uti« year^,
am^t d«fofia that
J .uiimrv Tost, b<uu|{-
S St 111 tunioltt
:0f u ts#«, tkQ4
Dgtii oftUAi', 4i» iht num*
ifier
her of sereotcio or a^ghteito^ or tbtrby* urhc
it waa bublicly talked amongst tWni, that Ihofl
would be ."I great tuDuUt ia itie toune^ And 4ho|]
it wns fitt tor even' persooe to ^eit oa numvT
arsnes aa they cotiTd, and they beit^ of aeverafl \
bodies and incorporaLiona^ they did all under^J
take to apeake to thoae off ther o«f ne tncorpo* ]
rationii, and that it waa fitt in the first ptaoo t^ ^
rescue two liuts that wer taken prt«(>nera ; de-
|)ons that the pannall, Alexaiider Keith, waa
present at the said meeting, and that the healths <k
off the severall tr^ulsand euiliginers wasdruiik«1
en^ and the pan nail began the heailiia, and i
he wouSil doe his ende<ivour in fetcueciig {
lads and raiscing the tnrnuU, and that it
resolved that they would goe to Grnha
guard and nuiiiiit?r tlivtn, and take ther aniMvl
from ilteiii, and that they would gett aiiBiatAOOdkl
from the counti'ey, and \«outtt pull dowoe the I
PapiHtii houticN, and siopt ther meetingi. Caum i
Kieniuz be was pt^arnt, and heard aad aawe^
H hat he has rkpone^l, and this ia the tmth ai
he iihall answer to God ; depoos he cannot
wreilt.
Sic SuhHrihitur^ LiNLtmoowr^ I. P. D,
John Pullmg^ lervilor to John 6iinptotu»|l
gunsmith, biir^^es off E^Unborgbt ag«*d tiyo*]
teine years or therby, unmari^, pitrgied and]
pv^' ^'epons that on Sundayes night, thftJ
iff the tumult, he was present at th« |
u ^ ,1 Margrat Angud cellar, and that tha '
pannall, Ale-xander Keieh, was ther presfot, i
and that it was diicoui^d amongst them, thai
there %vottld be a great tumuli in the tofrne,
and that it was iitt iht every pecDooe to Imve
armes, and that evry man shontd speake to his
neighbours to proryde annes, and tltnt two lada
being fal she taken prisoners in the tumult &«.
thuy uDoadgod, it wa^ fitt they should not bal
suHVxed to be into tlmt ronfliiione, whrTUponJ
RjfvefttU healthfii n^i* be;;une aud dnmken, visi, I
a hf'ahh to the tradt, a health to the collivriners, \
mmi tt hpaHh to the confantone oA' «li Paptstf^i
^ , . , I *[...,, Mi^xKodtr Keith, the pannall, begaoo j
hmo ; depooei it was tesolted Id goe'J
1 aiea l^uairJl^ and tok(» ther armm from
them« Cauna ii Untta tie wna present, and this is
tlie truth as he shall nn$\vnr to God.
S^^: $t4 b$c ribiiu r , J o n !n \*\i ULlifO .
J-l,vUTHttOW^ L P. D*
Gill^cri Hay^ Student tn the coBedg^ off
r ?», agednyntrtm yoars or Iherby, un-
( iiirgt'd and itworti^, dOjionK he was
pt -f-titjtj V 5 cellar* iirid saw ihi
pannallyA' . tlicr, and tbattbof j
wot scvirait minn pn iijv^ and OflKfif olT
Uioeliilp ; depona Xhw w«r — »iiiB '
dnmken, rt:' *- *^- *^,Am oolltghim, and coo*^
fuvion to 1 I »oiio be w«s not pire* J
(^Tif ..nil . . uki^tliig, hut he heanll
I was a shame ^al tradi lofle^l
d n^ tube put in prttonej ttiitJ
is Ibeiroih h% Uv sbnll am^wer to titid. ^^
Lmuntoofr, L K D*
1023]
C JAMES 11. Proceedings against the Duke ofMomnouik, [1024
Gabrif.ll Wiltone^ seiritor to the laird off
Blackball, agfed twentie six yeares, unmaried,
purg^ and sworae, depons be was present at
the meeting tbe Sunday's niffht lybelled, and
tbat the pannall, Alexander Keith, was ther,
and this is the truth as be shall answer to
God, and that he beard a health drunk to the
trades.
Sic Subscribitur^ Gabriel Wilsone.
The said GabrieU Wiltone farder depons,
that at the said meeting', he heard one say that
ther wer many well-wishers to the trads, to
whom the pannall, Alexander Keith, said, they
needed not to fear tbat ; depons he heard one
say to the pannall, were I as weell iencetl as
ye, I would not fear to (ig-ht wi'.h captaine
Grahame and all his men ; and that the same
man sayed, that they should be better prepared
for ca^itaine Graliame and bis company a^inst
the nixt night; and that Alexander Keith
should have been with them all the tyme, and
that one off them said be hade two pistolls, and
that he should have them against the nixt nij^bt
reailie, and tbat tbe pannall, Alcxandrr Keith,
was present at the tyme, and this is tl»e truth
as he shall answer to God ; depons it was
Kerr, tbe smith, that spoke so.
Sic Subscribilur^ Gabriell Wilsone.
LlNLH-HGOW, I. P. D.
His MajeMie'a Advoeai protesU for ane As-
sy se of Error.*
The whole Assyse, all in one Toice, be the
mouth of WiUiam Rait^« chanceHoar, ffiadi
the pannall, Alexander Keith, guihy and cul-
pable off being preaent mt^he setlitious aiseni-
blie or meeting mentioned in h» dittay , ami off
his joyneing with hia accomplioes in his law-
ful! f resolutiones and order to m tumult, and
ar airt and part off the samen seditious mat-
ing, in respect they find tbe aame safficieotlie
proline by the witnenes deiiositions.
Sic Subscribiturf Wm. KArrE, ChanedUMr.
EAer o|iening and reading^ off the w^k
Verdict of Assyse,
The Lords Justice Generall, Justice Clerk,
and Commissioners of Justiciary, betheomsh
off John lieslie, dempster aV court, dectmi^
tbe said Alexander Keith, to be taken to Ar
Marcat Croce^ff Edinburgh, npon Fridaj iW
fyAh day of March nixt to c»ine, betwixt iw
and four o'clock in the eflemoone, and ihcrw
be lianeed on a gibbet ther untUI he be dnd,
and all his moveable goods and gear Is br
escheat and inbrongiit to his niajesrie's sr-
Which was pronounced lor dooine.
*See p. 75, of this volume.
f So m Uie Original.
0
347. ProceetHngs against James sometime Duke of Buccleugb
(and MoxMouTii), Sir James Dalrywple of Stair, Axdriv
Fletcueu of Saltoiin, and others, for High Treason andB6
bcllion:* 1 & 2 James II. (of England) a. d. 16S5, 168&
[Now first printed from the Records of Justiciary in Edinburgh ]
CtaiA Ji'STiciARiA, 8. I>. N. Regis tenta in i
Pretorio Btirgi de Edinburgh, vi^^inti !
prinio die inensis Decembris, J(3H5, per ;
nobilem et potentcin Comitem Cieorg'iiim
Comiicm do Linlilbj^ow, ti liouorabiles
?iros Jacobum Foulis de Collintoune, I
Justiciarii Clcricom, Joanein Lockliurt
de Castlebili, Davidem Balluiir de FoiTet, i
Itogerum llo^jf cle Harcarss, Alexanderuin |
Scuttonne lie PitmiHlden, Patriciuni L^'one
do Carss, Cuiumissioiiarios Justiciaris >
dictiS. D.N.Regis. I
Curia legittinic afHrmata. I
i^IlE said day anent tbe criminall letters '
raisit at tbe instance oft' sir George M< Kenzie of
* Tbe lolluvving passages in FtHiutainball
reloto to this Case, and tu ibe Proceedings
against tbe perbons who, in Scotland, cu-
operatetl with Monmouth :
" April 28, 1605. The Privy Council made ,
an act lor putting tbe whole kingdom in a nos- '
tare of deience against tlie enemies of the iuug
» I
Rosebangh, our soveraicpe lord*s ailrocat, k
bis bigbnes interest, against the deoetst Jioa
Scot, sometyme duke off Bucklengh, and Ami
dutches oft* Buckleugb, his relict, llea7 v/^
James Scots ther children, and sir James Dir
rymple off Stairs, and Andrew Fletcher off Sii*
toune, for tbe crymes off biffh treasone ao4 R-
hellion, and others at length mentioned io Aa
dittay ; makeand menlione, Tliat wher bete
common lawe and laws and acts of nariiaisal
of this bis majesties kingilume ana coofU^
practice tberof ; particularlie be the third «&
first parliament, and tbe threttietk seveatbKt
second parliament, of king Jaoies tbe first, u'
be tbe fburteinth act sixt [larliament and ftuiv
nynth act twelt parliament, kin^ James tb
and gofemment. The occasioo of it m&
some skippei-s liad come from Mootrase tf'
Borrowstounness, and deponed thst they Wiif
lately at Rotterdam, they hcsrd a leusH"
Scots ships being freighted for Soottand, Mil
with arms and ammuDition, and Uwt ibaSDii
ministers thera prayed for the gooA aucei^
lOflfi]
0n4Qih€H^for High Tn
A.V. 1686.
[1026
ieoood, Djntic levi^Qt acl ncfetsih {i4t'Iidm(»iit,
lliflg J«ii)tfif ilie tj^tU), lA : ' ' ' r riie
foun «<:t tttftvi |i»rli; (he
msttt ojid fvli ii<;t tir«i ft^vM'Hi ijjM ^i^uixiuuut,
*bfir niivv ifiii[:ili:i\ I'/J in itif <tiiiwj' ml i^tnl
Til ,e;
loi'J ■■ ,■ .! ^ , ,.,.«
tioiir jinv«[) lu tlirjr U1I8 in ,.«t
«fforip woulil attempt mu* _ mg
here. Hon»c coticlmled a U* b%; a' lui^ukv,
fniiiifl^ fruin thi# ^jutid. ihtti the Dutch com-
monly hilt fclMui^er lM»tiorits to ciirrv arms and
p«iwdf'r» \v\ncU they privilv swiid t'u Jkr^nry,
Vnd 4iflt to the Turks 4it ii* good rite, Ijut'it
pmvtfd nu inintakc!*
" May 7, 1635 At V - f m V ^ft ttie
?afis«lii aiMJ Jeuarar of A nr Ijoimi
cit«d oil the noiii* of Ar- , ;.. .-. -.n.^; «< sca,aQit
desit^niug^ to l«nit ; there vortifiesivd atwve
WO id liitfui, uud ttie €oun«i| retiiined alxmt
16 i»rthe t(rinit«M uk {ded^&i ; ujid in t^i^anl
th^rvsx. Mt th«^Mi cHuid not find Iow^Iaim) nor
t»urgf«£ cauticu) Jur iheir ()ea4J*^Hhlt*llri^K« they
riftiiitted thetu lioine tu iiiy lord Athole^ti de-
pule, to lake Micli CJiuliwo of tbtm «s ibi-y
oouhl find.
"May U» tmy The Pri*y Owjucil, od
ibe neMr* ^f Montuouth, .lrgvl«, Gmvt >Vc he-
jpftats' ' ' K-d
•llUiel u>
aial uirU Arni^^i, ou 24 houm aJvrrtistmfnt,
HfheiK'Vei' cttiied ; and thi^ niiUtta ivf4^ui)«ois
fvere ord^imfd to neiiilt^tvou^ on tho iiHh of
|i»V ; Whidi, Ijecaiix*; it vtiip iti« very day
ivhereoii the English parhainttit ^as tu mI
iU*vvii» 8<>itw< ciiujec^turif^ tins (irejinrulion wsk
ilJ hut a itham io hoa«t tJit'iu ; but it j»r<>v«Hl
i>tli«TA i»e ; For, on tliv I4tii of' May, au ex-
B»'«M caiii« trorn iht* hn(h(»p ut* Orkm-y, at
Ky-kwall, tUut Ar^ylu hud (nuched iheit* irith
III rot shipiii which Jiut all in |fre«t cuutfterua-
tion.
*♦ Tlie WW9 of Artie's Wiuj^ on tti€ oo«»t,
tlHftved our i»late«<rueii to «<'fid tur the pHsoaers
lyift;f at G!;i% • -rl athtr wrxieru pfaces,
Vf'hcre it w^:, 1 hv would bud» (rt>* lie
4]»d »t nuiivi.,,,, . '^Mil ou the trth u|'
Alaj^ ihtif t'anit* i ' tneu titid wonieo
privoiiLi s. wluMVi'tL : , ii (1 lV»r ojivcutirtes,
&' am either to hr ddivetid to Pit-
lui ' ^y to the pliiot4Ati(itiK iriAiit(tI<a,
or I ' I I'l ■ . hiiMnot^ir ( ;
tl>>: 1.11.:^ '- X . i. ,,■.,.,, I- i.xin th«: 4'(lH ■
s" i < I royal prij^oM like tlie Boxi) tQ Uf ki |tt
vi'-: ilirre.
•' The cotiotettof Aj '
secured in thi? ea«tk
Jaioea* " '1-
ifty, ho iiy
bf*r — •«
111
kin^ Cbarles thi* secood, the erymes of treason i
and reMlion, and tike rymng and joyning in]
Urmes ajfainst Iils titajeiiiie aud hi* iiuthofily^'f
and the aboitteing, u^istsiing, recejitin^^ inter* '
*' On ilie Ihlh ofM.iv, ^''^ f' - "vtiiled loa-
uitL'>tto, and *k'cUratK»ii «4 m>», crtui^ ,
to tlif Priiv C'omKit, \vii umiMis h^
had ^viit to his vns^aU and iK-ople, to come in
arid H^i^t hint. And accordingly sir Dunaui
Carn|*Udl of Auchifihrt'rk, with -^00 int-n, went
to him^ tmder the prvtcuee he was hound b/
hi« charier to asiiitlintn ; which canuut rddi^is
hint a^anist the kiog, nor defend iiioi fur trea-
son* And on the )pih, uut only the hi^riiors
above lOO/. Hctm vahmtitm, (as wati ordere^f by
thepr ' • i( ot Ihe lllh of May) hut aU
heritor ; within it^ ai*e cnminiinded t»
go oiu ...^.i L..C kin&f's^timdardandroyiil ani\|^
oil horse or fot»t as liiey *'an ; and the smd be-
iiioi>t under 16 or p&sv 60, t))ouich exeemed in
periion, yet are aJlowed lo send out oof vvell ,
uppotnitd and armed.
** June 3, l(J8o. The it^af^uis of Atbole^
eomrunnderof the hit^hUind ft^rce* atlnverary,
a^aiu^t Ar^yie, hy wtuTMUt fiom the kin|;S
council^ etiiiiied u jiroclaritatjoti olfmtia: a^n iu-
drmnity i** all th«« cimimon soUliLTti who h:id
jfuUiHl with Arg'vk*, pr^viiUd they laid down
ilieir Arinu, and liciiertiid his service; but thia
did uot extend to ihe beiitors and gtiitry willi
biiu<
" June 0i 1685. The two firltioiiers taken
i^ Q [..... v.> \t HHi.iiifcJijeiice, and Mr.
Bhici ur^n; and the tiejd
day, L , , , . _ via* a great fray and
fchr i:i -li, on the apprehi^Uiiiou that
Aj*ar>J' reed in le^ive ibe sea by the
kui^^V tnt*ii f>l w«r, u bo Mere come up, be ba<i
lande^i in Coweli, and aimed to snrprj^e Stirl-
ii»g f wiifteupon tht' militia regiment of Ediu-
buri^h wag iuyuntty appuittted to tuareh ftUiijf
to f^tirling.
** June 9, 168$. The dtike of Monnnoutb ii^
li\ ■ " ' sof £diu«
<ni ^iM> ! it of bisjU
tieason' I tor to um
retnist^ion i. ..-,*. ... . ,. «■ ,^. -., U^eindieVp
1683 ; and the ite ^ti' HuccU^u^h it wastlion^bt
could not be forfeited for Urn fAuh, his lady
and LbiUIren ist uidtn^ in the ri|fbt ol it^ nnJ he
bad only a Ulerent out uf it* — Monuioulh'a
M,'^ tn Kngliiid wta not at tbia tltue cotuir
"" iiy order of the I T
of tb<* H^rv rrn^s h
^r^^v
Jime 1 \tw% came to Edinburtfby
•* ■' ^* y\<^ %Tns T'*'^ •' •" '"'»ncr,
to bavp I .in4
ti ■ ■ -^ A'^Ui lu ca^i.vt
to K4iiiiVui]gb Caatiti.
1027]
2 JAMES II. Proceedings against the Duke ofMonmouth^ [1038
Kiicli rc'l»«lls. suiiptyeiii;;; thcin v^itli moue}'
arinrs, proTisiono, help, red oi* r<»uiiciil, or
g^iveing- tlicrri any releiflV pr comfort, and the
coinoninfif, and kccpins^ corrcspundrnce with \ usurping^ the style, honour and digfnitie of the
' " ... ■-. impcrsall crow lie of this bis maj»ties realme,
are most detestable, hvnous, horriil, and abo-
roinahle crymes of rebellion, treasoue and lese
peel's, because he ceasetl to be one : but he is
not yet forfeit in Scotland. Mr. Tiioroas Gor-
don,' criminal clerk, alledgeil that part of his as-
size who \\ ere getitleonen behoved to be barons,
hoKlini;' of the kin^^ in cupitc^ and their lauds
erected into a barony ; anil, on this head, be
refused Mr. James Klics of Stanhopemilis: but
on the -ith of January he was admitted one of
the assizers, seeing^ fiis lanifs wore kirk bodi
holdeii of the kini^. Tbcy rt-soWed then, if
they could y^et no more at' Stair, at least to de-
nounce him fuplive, by \i hicii they would ett
his escheat during liis life ; but sir John Dif-
rym|>le, his son, by his policy prevented this.
* '* December 30, 1685. Five remissioM
came down fi-ora the kiii^, to be past in exche-
quer, viz. for sir John Cochrane and his suo,
tor Mr. Bruce, and tho German, (to be wit-
nesses ajj^inst Salton,) and to HIT William Scot
yount^er of Harden, u liu had given security ftr
3,500/. sterling of fine imposed ou him.
*' January 4, 1686. At Criminal C^mt,
the king's ad?o(\itc insisted a^uiiis»t AndrFV
Fletcher of 8atton, iFho was on the 21stof l>e^
cemijer continueil to this day. The libel set
forth his beinp: in the conspiracy with Jerrii-
wood, 5c c. and coming over to Kn gland with
31 on mo nth. The king^s advocate caused mi
his warrant to insist, with the remit from the
parliament of these processes to the justicfi ;
and then declared he restricted the dittay tn hii
in\ nding England. Mr. Bruce was first M n
a witness, and then Antony Busse the Ucf-
nuui : The first deponed on certain knowletli^'e ;
Tlie second only descrilx d S«iItou, ami that he
hoard he was a Scotsman of a gtMHl estate
Tlii-ir remissions wei-e lony of coming to tbe
court, because Enterkin refused to seal thm
till lie xvas paid, (llie chancellor ba^ingdii-
chnrgod to pass any tliiuGr uratis) but this wit
in the kinjr's service.* The king's advocate stono-
ed t.\cvt'tiii)j;ly, hciiiuse he behoitnl to shew
llu'v were ri'mitKd ;ind free, and under no
impression, awe, nor tear, to domicile for iLf
kin;,'; yet they comii*g bt-fore the wi!nrt«»
had (lone witli deponing, it were a slciccf
groun<l u hereon to quariel the ftirfcituie, st«*
ing men unremitted may hu* ^^ itn»sses in trra-
son ; but the eurl of DnniUirton donater to tbii
forfrilure might look to that. Then uas read
a declaration of one Mr. William IVilliaDtft
the duke of Moninouth*s servunt, King is
Newgate, taken by kir Andrew Foster, aid
iK-uring iliatSalton came over tn Lyme with
:>lonuiouth, and was very familiar with hits,
and uas to have been a' lieutenant colonel «f
horse, hut was forced to flee by his killing
Dare the goldsmith. This was only used u
an admitiicle. Tlie king's ailvocate iMvisf
spoke to the inquest; they inclosed. Tiiief
or four of theui thought, thai there wassalj
one probative witoess, and tbattbe slnogcrdf
»* August 21, 1605. At Criminal Court,
messieurs Charles and John C/ampbells, sons
to the late .Argyle, i:nd lord Neill, Campbell s
son, are pannellcd, and tbrl'eited on their ouu
confessions, tliat tliey weic m-esent with Ar-
gyle in this rebellion : Notwithstanding where-
of,'the king is so iiivourahle to them, that he
spares iheiV life, and ordains them only to be
banished, on their bond never to return again,
under the pain of death. Mr. Charles afhrms,
sir Ev:in l..-am('ron of Lochioll, was keeping
secret corrtspomlence with Argyle his father.
** Si'pJemher 'J4, 1685. By a special war-
rant from the kiuL", the heirs of the late duke
of Monmiiuth, with sir James Dalrymple of
Stair, (on sir John Cochran's delation) and An-
drew Fletcher of Salton, are cite<l on 00 days
to the Criminal Court for treason, at the
market- ci'Oas of Edinburgh, pier and shore of
Leiih.
** l>ec«Mid)er 2 1 , 163."). At Criminal Court ;
this day having been fixed for the trial and for-
feiture'of the duke of Monmouih, (to which
his heirs were cite<l) and of sir James Dalrym-
ple of Stair, and Andrew Fletcher of »Sidton :
They demurred as to Monmouth, because,
though the probation was vdrar enough, yet it
nii.i^ht afterwards be pretended to be a nullity
and informality, that his heirs were cited on 60
days, and they were not r,t lilwrly to appear,
being either in the Tower of London, or other-
wise under restraint.
** As for SSlair, they wantetl one of their wit-
nesse>, viz. sir John Cochrane, who was not
come home ; and, as for Sulion, ihev i)rMji:;]it
his two witnesses to the court, (the same they
had br(Mi:rIit atfainst 'Mo:im.)Utii^ vi/.. Ci;;:iuiu
Bre.co and >lonsitur Ihu^e the Dr.niilenburger :
but they could not get an assiz** ; for <»f all the
4.'> there were hut 13 pr^^eut, so tliey were
fined for ahsenre, the nob'.eujen in .*)(iO nierks,
and the gentlemen in 100 merks, with this de-
eviration, that those who should appear the 4th
of January, to which the: diet was continued,
and alledge a reasonal»le excuse for their ab-
sence, should he liherate. and that the aetamer-
cintini: such alvsents should not be booke«l till
the next meeting, that there inii;hi he room for
craving to be renoncd by bill.-. — Their beini»"
out ol' the cduntiy (tis s<Mt!C of \\n- assizers
were) was alleiiged liy tiie king's advocile not
-to he a sniiieient ej:soig!ii'\ , iict only if they
weiitaway alter the citation, hut even ihou;^!!
bj'li^re ; hecausH I wili get one (if not holden
as couli-ss^d, \et at K«ast) dec* rued for 100,OuO
inerks, on :i ( i-:>.tioii at tlie pier and shoie of
Leilli on ()(> d:i\s. Hut the <lisparity lies here,
that ill civil causes, th<'y may leave procura-
tors to answer in their defence ; hut they can-
not leave one to be an assizer in their room.
Some thought Monmouth's heirs (he being
Slow forfeit and dead) needed not an assize of
10»]
mid others f^ for High Treawn,
A. D. 1685.
[lOSO
nii\j«"stie, ami AreinihiHbuMe wilii liirtimllurcol' ; renbue, b^' wrtilling't 5po«kiti^% or anv otlio^
Ijflr, Umfs and ^fomls ; itnil tic tlie htomI uel | iiiunntr of wny to etidrfivour xUts HltrniliuucL
.^«»v»^t »<^.:..» ^r^i — !...«*..* I....- *^»---«— jsusptitiaioue, or fliver!iiime oflT ibe riifht ofsnc*
fi^itioD, or dclwirreinj; tlje next luutull tuc^
rcs^orj aud be ihe Mveiuli act of ftn^ jiarltu^
meni^ kinif James the sef iiit!», It Is sri^iuti' anu
declared, ihul the roncenling nud not rt vpnlling
rd' •it)|dii'H jjivcn tu or dcmaiidil fur traitors Ibr-
(ityited ihr ireasone auninst hiM iiifljestK^fs per««
sorie or g-overonjrnt, i'* irtifone, and they i*rip 1
be jud;*:<?d irci'ordiuijh ; and be ilie t-tp%etuh
act tirst »cssJone hcriiiid |*:»rfltinit'nt km«i
Charles the st-cnnd, foi fault ure> uie a|iitoyiii<
to iifoceed la ubt»crice, anti l>e tl^ fiixtie nvui
net sixl [inrhnnirtit, Um;; .lameN the fv(t. it i
Q}>po)'iiied» fuuclutled, and deU^crid ihut iha
aire may be toHnulu'd lor trettji(»ri ccmmiined
second se?»>iii>n iir*i parbumcnt, kiu;» Charles
the (kHOtrl, it is dedmed hi^^li trea^one to
ploTi, CiJiiU-ive* or iiilend ileath or diMlructiune
to lib iii!utf7.tit% or to put Hoy reiitiairit tip<»ti
tilt royalliiersone, or to drjirivef depose or hti^-
peod hi in Irouj the »tyl«r» honour, or kindly
name of tlie impLrsul) imiivh off ihiM his re^UtiM%
or from the exertiiw* o(f hia royuil otivernment,
#r to leavie warr or tuke up artne^ uc^aitist hts
iDajeHtle, or any <!«itinmssiijniit by hi»Ti, or to
intyse uny «trau^ei"s or othiTH to mvade any of
bit rnnjcsiies doruini^mn, or to vvriit, print, or
gpeakc any thiMjj tUni tony express nr declare
furth thi'r treitsjomtble ioit nli^ins, :rtiil in purtinh-
abte «iih torfaiiliure of l^fe, lands and ^muh ;
lod be the ft€cuttd art third pnilinmetit, kuig > by hi^prvdi ce^sor^con forme to Ihe common la wCj
Chailej^ tjie second i it is der lured hit;b treason
in mt^y oflT hia majeiiiies Kidijecis ol' ihiij hln
|HJkied alleoai-ly on bear-iiinyt ttid mig'bt beuai'
taken ; yet it'wos caiTied by plurahly, that he
wai proten ^uihy : Hn she tteutence of for-
feilune vv;ift pronounced aijaluil him witlt all
the formahtici; of sound of trumpet^ teaming
bis armi, reversing them on the cross, Vc.
•* The SecA't Comniiitee had a lont*- de-
liberation, if they should proceed to the hirteii-
tor of Moumouih. The scruple wns, bis heirs
when cited were prisoners. The kiu|^'s ad*
rooatc contended tiu* was nothtng-, sreing l[ie
crime uos notour, and be was execiited lor it
in Knt^latid ; and it was n^t safe to let his
children at liberty, because it might prore per-
nicious to the government^ if they ^vere alier-
wanhi made iiJter of as the head ot u faction and
rebellion ; and by the 135th act of pari. 366 1,
ibey could never Ijc j>erfnittcd to impugn the
forlcitme till they t-ither acknowleJi;i^l llip
cruue, or got a reujiKsion, The criminal court
Oct concurring i*)th him in this judgment^ the
trial was delayed till the next day> and then
continued till the ftflh of February next ; aud
midio tempore^ they were to consider if they
irould devire to have the childrca etot down
iiither to the castle of Eilinhurgh.
'* January 53, lC3f5. A tfilt of ihf^ foHWture
of Andrew tlcttUer of Snlton wat passed in fa-
\our>» of tUc earl of Dumbarton * bifhein and
assignee*.
*» Feb, 14, laar. sir Jolm Dalrvmple, now
kiag'9 advocate, anired. He was lately twice
iu prison as a malefactor, aud in very bad cir-
curaalanctM vith ihe govemuteni, ' He has
Ifol a precept from the kinsf fivt J,'?fX)/.
tterliug, whereof fjiX)/. was bis fine which
Qiiernsbury and Clsifeii* enacted from him
three years ajfo ; and the other lOOl. sicrlinvf
lor bis charges in this last journey, and for the
lorn ot* his employment und absence. He
bnuKt also home with him an ample and com*
oirebetiinvf* remissiou of all crimcJi to h\n
lathirr, my lord 8lafr« to htf mother* lu!t
bmhren and nislerA, and particulurly ti»r their
feset, and converse ^Mth traitom, and to bin
littk) luti, wbo accidentally shot bis brother'*
jjood equitie and reflsone. Nevertheless it is <
veritie, That the "itiid James Si'ot sooictymtl
duke oH' BuckleiiLHi imd Monmomh,*' !cir Jumei'
• Of Tr als for Treason afur deaths Blr.
Laing snys:
** Alihou;(h Log-an and bis oervam were al
rraily deid, his memory was n-till exjmmed 1
peo«eciitton, and his innoeeni offapriuy re erv<
ibr puuibhn^ent. Accordinir to a legal max in
that no pLTSiui can br con<lcttmed in uHsenc
his bones v^ ere' du^ up, and in the succeed tii
t>arliament produced und arraigned at the baf^
J IS letters were al'iO produced « and as the h:md«
wrttinnr ivas autbeniieated by the most
BpcctiiTde wiiuis?»r*5, his estate* were COP
caied, his name abolished, imd bis issue at*
til in ted. The stmlence was not less illegal
than odious, for trial alter death wa^ limitc^l by
statute^ to those whose treuxon was notoiioui
during their lives. J>Jor was the setrtence ue
utruous, tdl, in cooacrjuence of the urgent \h
8Uttsian« of Dunbar, the lords of ariicles ac-i
know ltd ged, with tears of joy, their entire coo-i
viction of the Iruib of a conspiracy formerly^
doubtful, and still so obscured*
Of Trials in absence be says, (when rektin
the persecution of 1667 :)
** It was an established maxim, adopted
from the Roman law, and even in «[uc^tioii$ of
IreMon coulirrnrd by statute, that none could
be conditmned when alntent, or deprived by
outlawry of a lei^al trial on tbeir appearance iu
court. A salutary maxim, necessary to pre-
vent the indiscrinnnate proscription ut' ud verse
[»arties, bad been «»o flrtuly entHblidieii, that
when trial after death i^us introduced by statute*
the bones of the dceeaHeil, to preserve thtf
iv»rms, if not the spirit of justice, were presented
at the bar; antl whtn decters td' b»r*aultur«
were pronmmeed iu |iiir1iameiii, ni^^nittbt the ab-
sent, no sentence wa» passed till they were
ofotluced ami 1 1 curd in their own tiefcDce.
But the gentlemen, wbo>^e eMutes the govern-
meat was desirous to coutWate, remamed'coii*
cealed or were preserve* I by tJi^jht ; and th«
anthority of the court of semoii waa re(|uii^d
for their vantictioii. Tbt aliicers of state,
2 JAMES 11. Proceedings againU Ike Duke ofitwrntrnth^ [19Si
1085 yemrx, or ane or other off the daTa of aM
or other off the mooeths, off aae or other off thi
1031]
Balrymple off Suir, and Andrew Fletcher, off
tfohoune, fthackinfl^ off all fear off God, respect
and regaird to his majestie and his authoritie
and bMtf>s, and bate prL'!»amed to c»roiDitt,and
arc guirty of the saids crymes, in suafarr as in
the year 10^)3, they did enter into ane damna-
ble plott and conspiracy with the deceast earles
of SJbafUibury. Essex, Argyle, lord Russin,and
others, tor killing and murdering at least for
S€;azing tip^>n rher latu gracious soveraigne,
and his present majesty, and for raiseiogonpen
warr and rcljellion in 'U>th kingdoms, and for
contriljiiteinif money fur the same both by
strangers and natives, in which cnnspiraric his
Tniijpsti<'s offircrs off state and garim^ns wrre to
be M^izcd, and for that effect, thpy did not
only most treasonaldie keep sererall consulta-
tions and mettmgs with the conspirators in
England, and vtitli the lord Mckill, sir John
saids years, andaooofdiofflv tbey <M
furnish and outieck the said late earle of ilr|:il^
with three severall thmafull of mcB, anMi^
and amonition for infading tbia kinylttmc, wte
accordingly did upon the day of
last, land the saids men and amies in flie iliyi*
of Argyle and Westhighlanda, -and did learir
warr, seaze upon our ma^pzinea, aumooed oor
garrisons, and continued la oppm refceBion Ifll
he was «lefate : particularly the aaid air JaflMt
Dalrympleof Staires, did opon the Aral, iefQfli»
tliird or aoe or other off the ^ys otf ianaafy,
Febrnary, Mareh, April, or mky laaf, or ttf
or other of them, most
I to the said rebellion, in sna fiare as he did sim
; ane bond off ane tboosaod fHrand aier'in, \em
i or more, at the disyre of the nid. fnt earf d
Corhiun. and others there, but in farder pro- | Anryk;, the bond wing seet to bini be Mr.-
secuiifm of the saiil execrable conspiracie, they i William Spence the earl's serrani, and which
did i^oe over to Ilollund and Flanders, and ther soume contained in the said bond was to beiai*
continued the said treasonable consultations ; ployed for buy eingarmes,amuiiitione, and othv
Willi ilie^iiid late earie of .Ar;f\le, lord Melvill, 1 urovi»ione and furniture to the aaid rebrfhiil
sir J'ihn Cochran, John Cochran of Water- i least it was a snplie given to the said late carle rf
•vde, (liM sone, Wiiliam Dbiiliolme, of West- ! Arjj^yle himself, whowasaforfaahanddedartd
sheills, Thomas Ktrivart, otf Cultnes, and ' traitor, and was given by the iAterposjtiooeaf the
otliir: forfault tind decl aired traitors and rebels ' said Mr. William Spensc, who was fcnowealB
in Holland, and di'l fretfucntly and commonly . be the carle's servant, and confeased bis hmf
intercoinmifii, con\er!se and keep corres|»on4f- \ imployeil bv the earle, and who was for Utt
ence \uili ilicm, ihtranent, within severall = self t<»rtureJfor hiaaoeessioneto thea^ pM;
towncs oif the Low Countries, uiion tlie first,
second, third, or ane or other of the dayi-s of
the inonrths of January, February, March, and
remanent moneths t>rtlie years 1683, 1084,
havin^f privately tampered uitli the judges,
presciiiod a spries of questions to the crjnrt : \ Bucckleugh, and Monmouth, and Andfre
and did conceal I and not revest Ik supplies givca
to or demandit be the said late earle Of AmK
a Ibrfiiult traitor ; and accordini? aa tbcyMi
plf»tted and contrived, the naid late earfe ot i^
gyle having raised rebellion^ in tbvf kingdoftl
as said is, the said James 8oot, laie duke rf
whrict!ii> trnason is notorious, if trial be coni-
prtdit aVUT drath, why not in absence 1-* if for- |
feitiuYs i;i ubsLMK'c can he pronounctd by the I
icgislitiiic, uliy not hy the court of justiciary,
to \vI:oin, wijatc'.cr is* just in parlinuiciit, must \
he tq :;i!jy cwm! ;)( r< ut i* an obsequious court, in '
opposil: -II to tiiK e&tal'lisli(*d lans of the renlni, ■
4li(l not hr^iUitc, on !^uch iallncious de<lueli(«iis,
to d('!iv( r a solemn Oj.iniou, th:it tiie justiciary i
court i:ii;^I-.t pnjcecd, in the absence of tiie uc-
ou^L'!, to the; trial and condeumaiiou of such i
conhwnaci(Mi>< traitors as refused to appenr."
FountainliiiU cbscrviug upon the sentence '
pnssrrd DtM'cuihoi* '^>2, 1(381, against the earl of
/kr;;ylc, in hi-* alwrnce, says : |
**^V«>.'/i, The at I of parliament allowing for-
f«ilnn.s ill aliscnce, is <njly in the case of per-
duillion, uiid rlsiu;^ in arms a<raiuKt the king
suffering ais a traitor. The Declaration (wliek
by not(»ur niiclhoii ; >4hich was not the sjiccies appears to have been prepared hy Fei|pH8B)
Fletcher, of Saltoune, the lord Gray, and
verall others their accomplices, did apon tkc
day of June last, most treasonablie r^fsril
armes and op|)en rebellion against his maicslk
and his authoritie within his maiesties kiig-
doine (if £ng1and, and with men, ships, armn
and .anuinitione, lundit within the tonne «f
Lyiie, and ilid emitte and issue finib ooH
trca:s'>iiablc declarations and proclamaiiMf,*
I
* Collins (vol. 5, p. 48, edition of I7M))ttJ^
that Monmouth at Taunton puUiahed thrte
Proclamations, one settibg a sum of monej §■
king James's head, the second declariagthi
parliament of EngUmd a seditioiw AseiaUy»
and the third cooiinanding the (hike of AlWr>
marie to lay down his arms under the peniAv if
of my lonl Arg\ llVs crime ; but they will j^et
what tlicy have dane against him raritie<l in the
first pari ninrnt that meets ; and ihejud^es are
not sccuic without it. Likcas, he could not he
estecuicd altogether aI)S(.ut, seeirg he was pre-
sent^ at the debate, interlocutor, closing the as-
size, and reading the verdict, and only escaped
before sentence pronuunced* : yet some quibbled
tliat a citation should have preceded to hear
acutctice pronounced.'* «
issued by Monmouth (at Lyme, as f appA-
hend u|)on his landing) was as fhllowa:
The DECLARATION of Jamio, Dak#
Monmouth, and the Noblemca,
men, and others, now in anna
I>efence and Vindioation of the
ant Religion, and the \jnH^ lliglMi»
Privileges of Enghind.
* As goremiDenC wu origlad^'iHMfei
ims]
ami Mhtr»,f>r High TfiiUM.
A. D. K5M.
[itm
»firf tii»n*ti<M wfi uml 4owft tit** cnmrtHe, robbing
\]. ^..•■, ,,.' •■ .. ,,T T... ,„.,, ,■,.-, ^(3
r» r oar
rifiiji^ to the niimticr ot • iiiousrinrts id
tij f?f^.i »r.H this or that ftirm of it chostD
uri'l A to by men, for the |jeare,
KAji 1 se<nihty of tlie ^ovemcil, and
« not tor 1h<^ jirivBte inlerfst, and per^tvotl
* gr^atnrti*, ^t those that rote; t«^ that flr<*Tern-
meiit IrtUi al«a)< brn I the bert,
vc^r 1* tmufi' anil prefogativ^s
iliti lie then*, not tinly to (ire-
f ibc iJttiplc frtjm violence anff opprrt-
I, 6ilC Iti prortjoii- their ppii'pentv ; anJ
yet, ' ' to Wlon^ to tl^<^m by
» ihf i.tmion, that might
ennhi'- iM* lit ('• irrjrjii: nncl tjppte'^fi ihfiti.
AnH It hiiih h^'iMt tlie gWy of tlngUn«i»
above most M^' .- m^, ihnt ther prince had
wa» oece»^arf,
in the di«-
I li RtoncI ffti
by the funthi mental
off T I M, audlhf!'* Ihe«*id fAf^ <lftle«^ €#
Bii InI mo*t treAsonsMre i/nsrp tft#
style, bonoifr (iQd kinglt* oanit od' the itbfi€^
* nod f'n^'*'*'^ ""*"-'" *h** fT»«tf'*'«*r ^'C
*biiTy i
» prot**itL , -
* pntrloti ot our reii^oit :i i
' theif livtf« ; hr-s hiring ex*-
F.f<
aM iirtnislHi
dther for tbr
* fHK>plef or for Iiih oivr,
' tihntf^ of the office \
flmited and restmrncd
* Iprm* of tb^ CT)nsti!ntinfi» that without a
* riftfttion of his own «wiih, ax well as tire
•fii!t« awf rn^;i<»Trp< of thi^ ^orernmf^t, he
eneh ham:^ ic j»i:;i«*,m-
* ed in eii*»* tb hat acconl-
'ing-to Hj
* the pr^r
ft vih^^. .
• ftblr imil prt^t, antt the pr^fngairves utttlcti
• otithf? pntiet* were in onfrr in thr Mthject?.
• prt»teutn>n and safHy, ! %
• Wtnw tuKjecf to p».Tver
~ it hath bern the tate ctf tht _ »*e!'tj'
foettt to he otii^n ehanir^t, ■!\ i ! from
what it waj in th« "
« ttmon. <H>d we
^ to AaVt Ihiff all the iK^'tmntruK »it nn' ^'vnc' n
ffrent have of lute hfjfn hrnkeo, end nothinj,'-
|H^ ■ "'* npied f<n (urnmjjf. nur hmfli^i
m* .0 in sdnwiliite lyranoy : Fur
jfu< M < M fV,,. ii.M.vtwti.ijt of nffarrii
wi f^ la-^t pust,
lb; uri uml li'
ifdg»d
1am of
J pirMtntititm (tjrainst
pmrfT. rttrr rehjfion
miiiiV I;
• mtin <tki% dev
• (j*>p<Ty atir!
• llHth been all alur ti
^^<HinfUW»K, aT*il mn .,
'dill .1
Mh.
^i\ik L . .;.j,,.L.,^ ™^ '... .- , .„.. . ._-., , , .J, id
A WWi lV|0^HQlllDO^Al0(ttlUftil^lNypVlllJrwt|
.011
ililr
. out tt
inin* to
* into
* Ijreatt
* ther h
» asiiii^nnate the late eafi of K^sex, aiirl ciDil*
* in^ (ho§e others to be cbnHewlSm^ly ^«t o#^
* in hopes to ct^ceal tt ; his adili^ifni*" :tnd pro-
^ curing the prorogation And diiivohiriort of par-
* liamentt, m or&r to nrfrent their bioKiiJrf
' into \m a-imca, at>d ilrat he might eactM
* (h of the nation; luch can ima^M
'n bfack and horrid tn iis^lf, or so
* riiriiuii^ .\iiil d^structire to religion atrd the
* kingdnm which vte may not estpcct ftom httft,
i Tf... v-.v t) rant tea which be hath exer-
*ci ije tnatched the crown from his
* bi ^Md» do leave none under a potsiW-
* lity of ftate^rini^f lliemsches with hopes of
'satety either in thrir consciencea, neriorts.
'or estates; For in d^ftftnct of all the httri
* and Rtatincs of the reftho» made Hii* ibe »ecti-
» rity of tho* reformed l^atciJtiiDl relig^ion, he
* not orily b^nfim hi!4 rei*;jti with a hare-facetl
I iA ihe Romish rchpon, btif
udes of (»r rests and JetuitJS,
lA* mnkeic it tivnson to come
u»ni ; and hnth imjiowcred
i} t^xrKvt' idolatries; And be^id^ hii
\m\y present at the wurthip of lh4
y.,: v,-,iii luihiiriv i^vtTsted at thi
tit<oil. Kd*
in liitr^jW?fr]gf
* tipon ti»e hivfji which ctTncern otn* pn>|j^ti4'Sj
* seeing in two proclatnation4, whereof tfie
* one retpjirrs the coHe«*ttny of the *'imtOm^*
* and the other the cootiiinni|f that pnrT of \hi
* eXriise whieh wai lo rtpiic at the late kiJttf'4
« d**rjth, he hnth violentiv, and against iill ihA
r the lund, l»roken to upon wur estates!.
I r is it uny e^itenoation of hit 1} rarTnTj
' ;m iHie in count en an erd in it by un ^'OitVr'ff^Qtu-
* tjiil (»[iinioii of *t*ven or eiirht !iul>OTned tXnA
* toritvrorn judg'iii ; but ratfifr deelinif^|^ th«
* fifrentnci* and extent of ttie conspiracy
*" ny^\ir\nl our nprhtJi ; and that there \% no roirant
* lefV tor our rrlref^ bnt by tbrce c*f arrttt :
* For, advancing tho^ to the bench thai
* were the itcaAdal of the bar i ami f?on-
* fitiiutln^^ thouc *cfy men to declare ttie hiw^
* who are acco^eit and hraflded m parttameiit
* for perTrrTtnt: them, wr were preciutled all
* Iw^pr* '**r-h«ll : And
* by p talae tfttirfl«»
* new iI1<l;;;iI i linrrcns and laher cofVnpl
* mean^, he doth at once deprive uit (X afl
'^ AjMr " hifcc*mf where our ancettori
^ n . n a \\ ; and hope.** to rendtf ttkai
^ wim li iii.-m Ml heihr ■ — -* '- f--.^^r-^ ag-niost
* tyranny, and the co: irllh#r«
* tiet, tlie metit* of s;....._.u..^ ...: ovf kwt.
' nod of esttttiHf blnif df h\M nMstmrnttg^ m^
1035]
2 JAMES II. Proceedings against the Duke of Monmouth^ [1036
riall crowns of Scotland, Eno^land, France and
Ireland, and caused Himself to be proclaimed
king, and did take upon him to be king, and
was saluted by the people as king, and they
*con6rming our thraldom. So that unless
* we could be contente<l to si^e the reibrroed
* Protestant relipon, and such as profess it ex-
* tirpatt;d, Popish superstition and idolatry es-
* tablislied, the laws of the land traiiipled under
* foot, the liberties and rights of the English
* people subverted, and all that is sacred aud
* civil, or of reganl amongst w.^tn of virtue or
' piety, violated ; and unless we could be will-
* mg to be slaves as well as Pa])ists, and forget
* the example of our 'noble and generous an-
* cestors wno conveyed our privileges to us at
* the expence of their blood and treasure ; and
* withal, be unmindful of our duty to God,
* our country aud posteiity ; deaf to the cries
* and groans of our oppressed friends, and be
' satisfied not only to see them and our selves
* imprisoned, robbed and murdered, but the
* Protestant interest throughout the whole
* world, betrayed to France and llome ; we
* are bound as men and Christians, and tbat in
' discharge of our duty to God and our coun-
* try and i'or the satisfaction of tbe Protestant
'naVious round about us, to betake ourselves
' to aj'uis ; which we take heaven and earth
< to witness, we should not have done, had not
*■ the malice of our enemies deprived us of all
* other means of redress ; aud were not the
* miseries that we already feel, and those
* which do further threaten us, worse than the
< calamities of war. And it is uot for any
« personal injuries, or private di-^coiitents, nor
« in pursuance oi'any corrupt interest, that we
' take our swords in our hiiuds ; hut for viu-
* dicaiinj^ our religion, laws ;i:ul rij^hls, and rcs-
' cuing our co^intr}' from ruiu and destruction,
« and for the piX'serving oursflvts, wi\es
' and children, from bondage and idolatry.
* Wherefore, bi"loro CJod, an^ois and men, we
< stand acfjuitiod from, and do charge upon
*our eneuiiv's, all the slaughter and devasta-
■*■ tions tiiat unavoidably accompany intestine
* war.
* Now, tfiorcfore, we do hereby S(dcnmly de-
* clare and )M-oclaim war against James Dnke o\^
< York as a murderer, and anassa<tsin uf innocent
' men, a traitor to the nation, and a tyrant over
* the people : and we would have none tiiul ap-
* pear undt r his banner to flatter themselves with
' expectation of forgiveness, it being our firm
' resolution to prosecute him, and bis adhe-
* runts, \tithout giving way to treaties and ae-
* commodalions, until we have brought him
' and them to undergo what the rules of the
* constitution, and the statutes of the realm,
' as well as the laws of nature, scripture, and
^ nations, adjudge to be punishment due to the
' enemies of God, mankind, their country, ami
' all things that are honourable, virtuous, and
' good.
' 4i'd though we cannot avoid being sensible
' thai too maoy have, from cowardice, cove-
kissed his hands and cryed God blisse tbe king,
and he was called sir, and his maiestie, mud was
praved for as kin^^, and commaDdit as king,
and payed the armie, and toiltlied childmi of
* tousuess and ambition, co-operated lo tbt
* subverting of our religion, and enslaving tbeir
' coimtry ; yet we would bave none, irain a
* despair of finding mercy, persevere in tbeir
* crimes, nor continue tbe ruin of tbe kingdoni:
< for we exclude none from tbe benefit of re-
*• pentance, that will join with ua in retrievisf
< that they have been accessary to the Ion of;
* nor do we design revenge u|ion any, bottk
* obstinate, and such as shall be found at dii»
*• juncture yielding aid and assistance to tbe aid
* James Duke of York.
* And that we may hotb govern oundvesis
*• the pursuit of this glorious cause whereiDse
* are engaged, and ^ve encuurai^ement to ill
*' that shall assist us m so righteous and mob*
* sary an undertaking, we do in tbe presence tf
' the Loiil, who knoweth the secrets of lU
*■ hearts, and is the uvencrer of deceit and &]i-
* hood, proclaim and publish what we aim alt
' and for the obtaining whereof, we baTeboA
* determined to venture, and are ready tohf
* down our lives. And though we are notooni
* into the field to introduce anarcby andeoflli-
* sion, or for laying aside any part of tbciU
*• English government, yet our purposes sodn-
* solutions are, to reduce things to that tempot*
* ment and balance, that future ruleri may K-
' main able to do all the good that can beolbcr
* desired or expected from them ; and tlot it
* mav not be in their power to invade tbe ngliS»
* and infringe the liberties of the people.
' And whereas our religion, the raostTth-
* able thing we lay claim unto, bath beenshiUo
*■ by unjust law s, undermined by Popish cou-
* sels, and is now in danger to he subverted, vc
*• are therefore resolved to spend our blood fix
< prrserviug it to ourselves and posterity: off
* will we lay down our arms till we seeitetn^
* lished and secure<l beyond all probabilitj flf
* being supplante<l and overthrown, andud
* ull the penal laws against all proteiBtf
' dissenters be repealed, and legal proviMi
' made against their being disturbed by leisM
*■ of I heir consciences, and for their CDJoyiaC
* an equal liberty with other protestanis.
* And that the meekness and purity of tff
' principles, and the moderulion and rightciMl'
' nes:^ of our end, may appear unto sUflMii
* we do declare, that we will not make w
* upon or destroy any tor their religWD, bt*
< false and erroneous soever : so tbat the fccy
< papists, provided they withdraw fron d*
*• tents of our cnemif^, and be not found goillT
' of conspiring our destruction, or abcClurt ■
* them that seek it, have nothing to fear or t^
* prebend from us, except what may hioikr
* tbeir altering our laws, aud endangering <*
' persons in the profession of the rcfiNmcd deo*
*• trine and exercise of our Christian wonhifL
< Our resolution in tbe next place is* ^
< maiutatn all the just rji^fattf and pnffilm»'(
■ 8
ligns« wrest an the kwg,
coii^tilutinjj LNji ...|-. -«..il mencenary
leir rooms, on |)urpf>flc to stretch Iht*
»ml the reiLtttm iiniJ ittt«ntion of them ;
clar? that for \tw whtch is not ; we
ev witli Kiicncc (iftss over the meolion-
; nor stioirjd we have peace iu our*
c dtd not etuleavour lo prevent the
I iff in time to come : for by reason
s hciDg advanct'd to the bench, and
ihcir phic<*!s mi\y durante bentjyUicito^
"rsons liave bvcn condemned in ejtor-
ie« for no crimes, or for rery imall
uv fiUSutc^ nmdc for the safely of tbo
raVticularly the Hubeas Corpus act,
I wirkeilly eluded » t<> ttit? oppression
inoi-ent aoi) loyal men. The Popish
liat weie impeached in parhament for
icHiiih cotispiricy, huvc, to the Kub-
e riji^hts of the houne of Iont«, l>eeti
mid tct Jri:e. The imnosing a
d fiherifTs \i\mvk thu city ot London
ajjd violence, liave been jiiatiiied,
i who in discharge of their duty op-
Ulr^ally prosecuted, And nrhitrarily
, Liindon, and other cities an^ cor-
!, httve l»«cn roblted of their charters,
iglit. ■ ■ - - ' ,!
1. Sidney condcmniMl to die | *
h>vii( nnd ex< i
lord Uussel, in
hi rrferenec to which, if alJ had been
ih wait sworn against him, yet there
iog which acconhng to law conld
ihetihifl hft\ Upi>ri the cnnKideralionii
we fnrtlier Jechire, that wc will
tnkeu fbr the future^ ibr the dcbir^
Bi acandalv^^^^^^^^^^^B
accortlingly, we do invite and encourage all
honest burgesaes and freemen to re- assume
tiie rig'hts and prifileg^s, which by virtue of
the said old charters, belonged to their several
and respective corporations ; and to deliver
themselves from those fate parasites, and in-
struments of tyranny set up to oppress thtm.
* ^^oreove^, for the restoriDff the kin^^dom
to itji primitive condition oT freedom and
safely, we will have the corporation and mi-
litia acts repealed: and all outlawries of
treason ag'ainst any person whatsoever, upon
the late pretended 'protcstant plot^ reversed ;
and also, all other outlawries, banish menti,
warrant!^, judgments, imprisonments, and
injurious proceedintpi a^inst any other per-
sons, upon any of the |»enal statutes made
against protectant diiisenters, inade null and
toid. And we will hai/e new laws enacted
for placing the etecLiiin cd'shenAs in the free^
hulders of the sevcml counties, for settling
the militia in the several shires, and for pre-
venting all military standing forces, except
what tthall be rais^^d and kept up by autho-
rity nnd consent of parliament.
* iind whereas several gentlemen, and other*
who have been worthy and zealous a&serton
of the profestunt interest, and laws of tb«
kiuifdotii, are now in custody in divers plaoei
wiitiin the realm, upon tnost nryu^ accusa-
tions, pretences, proceedings and judgments ;
xxiAix hereby further declare tlieir said impri-
iila tu be illegal ; and that in ca^ any
Mcc shall be offered to them, or any of
them, we will revenge it to the utmost upon
such of our enemieit as shall fall into our
hands*
* And wheivte the laM Jnniei Duke of
York, in order to the expediting the idola-
trous and blnody dcsurns of the napisls, the
t JAMES II. Proceedings itgawl thDyk^ ofManmoM. [}04B
^^ day of July last, and the said late duke
ipkefl pnaou^r, attainted by his m^estie's Sugr-
* can^e to an untimely end. we will prosecute
^ the vaid James duke oi' York, till we have
< ViTought him to sufler what the law adjudged
« to |>e the punishment of so execrahle a fact
' iod in a more particular manner, his
* grace the duke of Monmouth, beinf^ sensihle
* of the barbarous and horrid parricide com-
* miU^d upon his father, doth resol? e to pursue
* the said James duke of York, as a mortal
< and blootl V enemy ; and will endearour, as
* Wf 11 with his own hand, as by the assistance
* «tf his friends, and the law, to have justice
* eisfcuted upon him.
* And the said James, duke of Slonmouth,
* the now bead and captain general of the
f protestant forces of this kingdom, assembled
* for the end aforesaid, from the generousness
* of hia own nature, and the love he bears to
* these nations, whose welfare and settlement
* he infinitely prefers to whatsoever concerns
* himself, doth not at present insist upon his
* title, but leaves the determination thereof to
*■ the wisdom i justice and authority of a par-
* liament legally chosen, and acting with nree-
* doro ; anil in the mean time doth profess and
< declare, by all that is sacred, that he will, in
* conjunction with the people of England, em-
< ploy all the abilities bestowed upon him by
* God and nature, for tlie re-establishmrat and
* preservation of the protestant reformed reli-
' gion in tliese kingdoms, and for restoring the
* aui<iectsof the same to a free exercise thereof
* in opposition to popery, anfi the consequences
* of It, tyranny and slavery. To the obtaining
* of which end, he doth hereby promise and
* ohlij^e himself to the people of £ngland, to
^ consent unto, and promote the psssing into
< htw9 all the metbods aforesaid ; that it may
^ never more be in the power of any single
* person on the throne to deprive their subjcctsi
* of their rights, and to subvert the funds-
* meutal laws of the government designed for
^ their preservation.
' And whereas the nobility and gentry, and
^ commons of Scotland, are now in arms upon
* the like motives and inducements that we
^ art', and in prosecution of ends agreeable with
* ours, we do therefore approve the justice of
* their cause, commend their zeal and courage,
* expecting their, anil promising our assistance,
* for carrying on Uiat glorious work we are
* jointly engaged in ; being obliged, avoiding
* tedinusness, to omit the recounting many op-
*. presaions un«ler which that kingdom hath
« groaned, and the giving a deduction of the
* several steps that have been taken for intro-
< ducing of i>oper^ and tyranny. We think
* fit therefore to signitie both to our country-
' men and foreigners, that we intend a larger
* tsaliinotiy and reiuonatrance of the griev.
* aoees, pemecutiooa, cruelties and tvrannKs
* wt have of lata lain under; and therein a
^ Mora foU and partieular aceounft of the ua-
* fwHilail mkmwt ctf tka daht nf Yodk. Aad
lisb parliaineni* for the wtSd
ecuted at TowerhUI, upon
rebcUm, asA ai«
the day if
< we make our appeal unto God. sad aB pia-
* testant kings, pnnoea, atates mud people, esa-
< ceming the justice of our oaimo, nod the nt-
* cessity we are reduced uBto, of horing ««
< recourse to arms. Aod ao wo do
< require and adjure all siooo
* true Englishmen, to be aaaiating te H
< against the enemies of the gomlf rightt if
< the nation, and libertiea of -irnlrorf ; as vs
< are confident of obtainiDg tho utnaeat aid sad
* succour which they can yiM as with tk*
* prayers, penooa and ealateay for the dethna-
« m^ the said tyrant, dec. Nor do we dsdk
< bemg justified, eountenaoocd, aad aavaldlf
< all protestant kmea, prinooa. and caoHaai-
« wealths, who either regard the geapd 4
* Jesus Christ, or their own intefvat M
< above all, our dependaace and traat is spn
< the Lord of Hesta, in whose aaotie vr ft
< forth, and to whom we commit oar oaBK,an
« refer the decision hiStwixt ua and ear cnnia
« in the day of battle. Now let iis play At
< men for our people, and for the cities of «r
< God ; and the Lord do that whkh mmmk
( good unto him.'
* Bishop Burnet (Own Times, toI. 1, y
641,) says, <* The alarm of the duke of Mil-
mouth's landing was brought to London, wkm
upon the general report and beKef of the tfttt|,
an Act ofAttainder passed both Houses ia m
day, some small opposition beinfl[ made }n fc
earl of Anglesey, because the cTidence dii st
seem clear enough for so severe a aentfacr,
which was grounded on the notoriety of the
thing." Mr. Rose, in his " Paper re^MCtii;
the degree of reliance which should be pbcvd
on Bisliop Burnet's StatcracQis of Fads tfi
Circumstances," (Observatlans on Hr. Fof i
Historical Work, Appendix, No. 6.) has ii-
serted this among the *■ Mis-staieroentsh dM
Bishop's History, contradicted hy Records," ■
support of his charge against ISiimet of vsit
of veracity ; and he says, '* It is so &r froa
being true, that the legislature adopted tkc
measure against the duke of Monmoutb,*!
general report, and that it was m>UDded so Ac
notoriety of the thing, that thekiDg on tbe 156
of June communicated to .the two Homo,!
Letter from Alford the mayor of Lyme, giv^
a jiarticular account of the duke's Uadiit
there, and taking posseision of the town."
Mr. Serjeant Hey wood, in his '* Defenee d
the Veracity of Bishop Burnet in his SM*
meats of Facts and Circumstances," (Vindte-
tion of ]Vf r. Fox's Historical Work, A wafc
No. 5.) justifies the account given by At
Bishop:
(' Burnet," says be, " mi|rtit eoMHiv sv
cording to aome new syaiom of ommIhIi^
soning, though heaisM ataaiaa ai^fht noftH^
adraittad in histacy, a Milar wamk la iha liK
and hy him had bmsa haih Jlnnisi of ^ ''
OMjF ha noMMd i
104 1 J
Jitr High Treoion*
A. I). I68(J*
riMjj
Fk'icher, t^ff SutimiuOf ilit) ooiiiu oirer wiU) the
Utiit late il'ike olV J'^Ioiiiiiouth^ fiDtl Inndit \%itli
him, ftrwl rocJe np aod down the conn trie willi
oi' the facts inpntinncd in th»t l(>lteri in order
to cnminiite and rvun uttftirit au individtmL
»t1.
th ote
ih ^ : •«»,
«n<) tlwit HI iiiti absence whiu he wri»te iHiylit
to be if»*u(i.Ml as tio e*i<lenc^ at all. l*ut upon
refen in^' t« the Jem run Is, the Bishop's account
cf 111 it «rt will be i'annd pt*ffectl^ corrects
Vv *-»>', <he 13lh ur J*in*», 10rt5» the
iir MiV bafh of the Hviiises of l*arHa-
Iij' ' / , vnr of lAfue, i^iv-
in, (I's hMulint; ilifir**-
aiiti .11 T^iKKiMi-'ii tii4. % ■■- 'h;iX two inesi-
«m(fi'f&, wild bpou-^ht i: I ad beeu eva-
minf^d >"-"• ' ^ ii at tio ...,.;., li table. The
Ciimni- 'd (he messprjiferSj who Ics-
tJfit'ii * i} tlic tiiattrr/ but tlie LDrdu
did not. Itiilh UotJS««< ai^recd to address the
Idng', and the address of the Lords that]ke4l
hnri for iin|mrtinj|- Ihtr inlelli^ence. The letter
<jf the mayor iiuifhl he snfticietii to auOiorize
An Jtddre&ii, but not a hifl of attainder, a sort of
prcri>i^AtiTc trial , ni which the le^laturc* by
mil cxi Inordinary interference, removes the con -
aideraiioti of nii offence from tlie conitnoii tri-
1>iH ■ ■ i;vkes it u)>on itself The Com*
ni' i_ voUmI the address, ordered * bill
to iir tJKMijiit in for the attoiuder of tlie duke
of illormiinHh, williout any furilier cxaminii.
tiou c»f witor*»»ejs. On IVIonday the 15th, the
bill wa« rtfad tbre« timei, and passed, and lieol
up to (he L^)rd«, where it was alto read threu
times on the same day, without the produc-
tion of any evidence, and pawed ; and on the
next day/Tiie*dBy the 16th of June, it receiv-
ed the royal anftent. These rirciimftaoces
inunt haf e been weij known to Mr, liose, and
from hi« having^ omitted to mentiim the cxn-
tntnation of the two meaM'ri lu- Com-
luons^ we presume that as tl > ions are
not pr^**erved in ' ' iks they
do not fttfeetthe ' to rest
bis objH'don u()ou tm - ' tttT
" * be
-^P*!
■ roci-ied-
• (I iULli
Idm, and was in fiprriit esieenti with him
Lyme for two or three duves, and conti
nued in oncii rcbi'Uion wiih him, iifl havii ^
killofl one Uaer, one English goldsmith, ^Iti
on ly . He cunotftirtt 1 1
StUevit, to hnv" *"'^' I
and tbeoiilv
Inf^ to be tti-
the bit! a fen (louis lati^r lb
Jo ihu Vh'v of tbe KUbjrCt, ^
brfort* itUiHJfKl lo, ttiiit the leltiT wn* uo more
than hrar*say, and not udmisiibte at ntl in rvi.
''deni'4, we leari^, that m (ttct, o^ a foundntiou
l^r UiR act of •ttiutid»'r, thai Wti4?f s^nt» iif>ver
itNid. It was mei-rUt to u^^ • iu
tile ad'li-esy of the I^ords, ti^' it.
abop iiiii defccnuvd it. TLc Bishop d<»ti not
itnnd single nnd nnrorrohorated in his opinio
of the uiiumt r in which this buniifess xna cnrifl
In. h.-i f... *t..> ,.,,t fff Lonsdale, *»ho was
ns member of the House
-, It is memoir** [hs tu llti^j
see Heywood*s Vindication, p. 530,] 'M^iih
an expression, which she^s that he conceived
the ciiiu's^e lo be well founded us tar as the
House of Commons wns concerned; Mhey,'
s;ivs he, ' passed a bill of oltainder rtgainst (li
* uukeof Monmouth, without exainiuinijf wit
* tiesseH, iti one ilay,' and he could not be mr»
taken about this fact. Hurnet i^ays, that *
earl of Ani ' nosed this bill in the Lorda
because It 'ha evideni?c not suHicien
toauthaii/< -^i* - vi.ie a Morence. This lead
to a fiuspiiion that the Bi&hop was p^rfecll^
aware of wliat Mr, Rose triuniph^ in produe
lOiT, namely t the letter of the uiayor^ for a i
ble lord did oppose the bill on account of a de
feet in the e%-ideoce, and the advocates for I
probably rtt«orted tc» the notoriety of the facti,
fks the best justificHtton of the measure. It is
evident that the eail of Lonsdak conititlers the
examination of the two messengcra by th
Comtnont, to have had no reUtion whatever I
the bill, and it is ulno mauifcttt that the esveo^
tial requisites of ju&tii^e were not attenfled i
uo Jipti-itle charge wa:i made tjie fouodntiou (
the iittainder, uo ciidcnre was re<)uirtHl ctf ih
jifuilt of ilie culprit, no witiiex^.- id
prc^ve it. We may therefore 1 Itn
to disclose any oth^r gron'*'
pn>rt»edini»fs of either Ho: , arte
or defeadeii, but tbui wtji> i , /u Lk
cause sugiyfested by bishop iinv^ei, namelj)
the g'enerai report and lielief, the notoriety >
the thing, It triav be readily colder ived, ih
the tiKMle, in which tlii«4\ct wa^ ptimed, occ
aiontil much conveisattou at the time, mon
especially if what sir Kdwnrd 8eymour&aid i
a dtbittc on Mir John Fenwiek'n bill [See llM
case in this Collection, a, d. 109(1,] ir true
thut this bill a<;ainf«t (he duke of Aloiiiivoudi
was the tir»t bill <jf attainder wbitli had ev€
uriirinated in tbe Houite of Comuion^i where
witnesies eould not be«'.\i«ftHned U|Rm oath/*
tlf tbia icnportaut fubis»^e, I have not vea-
lured to ttiippreas any part, althoui^b it mu
be cotifeeiii9a, that the tenor uf it i« too polen
cal lor Bbafract htntory.
What ia entertnl in the Lords' Journal, aa tb*
Letter from the mayor of Lyme, ia as folioM
'HonUon] iUk Jvnt, 1085
near Viol Ntghi,
**^ May it pleaae yon? sacred itiaicftty ;
*» Tlii* ivciuitif hctvvmrt 7 and B of Ihe clock*
there en me in a ^reiit thip into Ibe road uf
• f hewing rtuy <'»doun, tht^ oHT tide of
iiusren by m» on tbe khore ; she
)iu^4i II vt' i^r>*ut boat* full uf man, wkich they^
eipnedcd U bind the «obp and so landed Ibeoi <
ax
I t(ir
tbi
WW}
» JAMES IL ProctecRnfft ageitisi ih$ Dmke pfMonmoiah^ [Bit
I %MS [ykwjkyes with tli^in ip lli« eaid reVtinina, i fl^ iiiU kiii«:<i'>(
[ Be WAS forced ta liee tct the Iri^uils tu ^vlittd I the tirNt, sero'i'
t'ifaey i»nie, aimJ make liis escayit; AdiI the saiil niiitielUb ol .^
' ^r Jtamcs D»lr>ii]|ilD,ot' Stiiires, il«d, beiui'e he t-«niaiienL uiuii . n
lllitf mitward ftf lli«tA\»it: Thty i»rat CM'er
ptfi^clifik; ftnd i^resi^uUy were in th« town at
Vteast three bundneil ineii, die thike of* Moiir
, mouth HI I lie h«aii of tb(«iu ^ so that the^y be^
[ came masters of ilt« Iowd, I pre^^eully, \ft.i
I l^ou log: thftt [ shouhl l)e th« ftr^t aeiie4, fei«k
I my hurse, and eaiiie vitib »pcetl |i> iAms Iqwhv
ind gHve notice to all tii« country &» I csihit* ;
[ and neni my servant^ that tiotkce shuuUi fw
gitreo to Sumernct unci D<*r*«ii4hir€8 ; ami 1
o|>« to be at ExHcr, to tri*e an accotitit c»*' it
\tQ the duke of .Ubcruiarle, within two hour^.
'^ With the greM. ship, there k a ketch ol*
I ibfiia one hiin<lrfd iiio^ »»«* a tly boati which
1 jufi^fe tt> W nlMMit livo haudretl ttiti^ ; neiUier
[(jkf them had lumltr] my men when [ ctriie
[ thence ; but we lem to b« full of nwii.
*' I find thi.s [ \ iillltie co^intry^ to be
Jtcjry ready li» iit^ke ft»«wt«4*ked U> th«ir arms,
I i|:aini»t the rebek. In the uior niuj;^ at Chiik»cke
] ill ftur bay, thty l»nci»d t#o niea ; wltkh t
underslunnfing-f 8«iil by ail Mrays to apprehend
them. \V lietU^r they are* ralu^n^ 1 koww not :
^ to I humbty bet^eec^i yonr majesty tf> pardon
[ tUia i)i»tracted rdiition, net doubting: bnt liicy
h/ava fUnmlered me, I anu yuur majesty's
' moal huuaMe and idiediffit servant and fiidijecl,
*' GRE«gav Alford, Major.**
SHoiily aflei'Wiirds mM passed by the €otn*
MSB* the ** llih tW the better Preservation of
|JU0 Miyeity^srerstinuwJ Government;'' ^rhioh
ttdiiicit a clanve ctmcernin^ Monmuuth. The
[•se^Uiit givpn by tiuniet of \\m Bill, has been
mnch di'jeu&fed tiy Halph, Mr. Fox, Mr. liioae^
^ SihI just now hy Sir. Serjeant Hey wood, from
whom i iraniicritte the fuilowiiig pWticular re-
l^on of tU orig-in ami pro|^re8« :
**SiDiCethe pubticatiou of lord LonsdaVe^aMe-
[ a>oir, we are enabted to make ont the hMtorj
Nil' the pniceeilini^ on thia BiH, with a cnMi'
i liarahte deifiv^ oi prvcinion. From tke Jour-
klo^ it app<»rji that on the Idlhof June, 1685^
\ ib« account ot Monmouth's landingr wirs cotn-
ttiiic«t«d to the Hou«« nrf Commons, and it
m refereil to the same committee^ which iisd
Ml i|>p<ii»44pd to draw np on address^ to pnr-
ifm and hrioii m a Btll^ fof prniirfiiiiioo ni' hb*
^esty'A royat persftn und irnvernm^nt. ;oid
n> a BilMAuihenii
i month. On the IrVn i
[ |o the committee^ to add a t:\ait9u ilc« iariai^ it
ihjtgh lrciia«>n| for any pen»ou to naaei t thc^ 1^-
[iiniaey oi' the dnke ol^ Honfuoutb, or hU title^
[•r pretettce to tlie crown. On the I9ih, it
laread a first and Benond time,
knitted t^ a ctmimittee of the whole f I
I dari
d,
ll^f
HI* preMiifie,
Fox,'ji4p|t«tt
i^ol' ill
rd , or acir or oiltrf «f tks
•hruarj ,Mm«^ ani ika
ooMunitictt
Sefjeaiil J^laynard, Mfu Sloiieil^r ClrMn^
(Finch), sir Chrisi4»plier Miti|pmy% air J4>a
Lowtheif (aikrwards tsaH 9f' I niadih, aad aa-
tbor of tlie IVlaiucMr), Mr N^irtli^ air Ti— iii
Ulcrea, sir Riel»arii Trmtde, Jllr. Eliianclt, llr«
Ti|||Hiif|, and UiHitor Bnylj;',, »ad fHey «t mif
ibfeo 9l them were imfiowerf^lv l» pra^ara mi
bring in n dain»e, w be j^«U<> t i ' Biil« Hm
none 8h<»uld move In eitbcit i PaHs*
m«ii4, ihr alfr, f the %nccf^0ttm «C ^
crown lu thi ncr. On llie $7ilt iha
ehiu^e ^^ilsi ie|Mirii^«l i^^Mn the ooimiMilit, mi
oi'tWrcd to h« upon the taldtf ; atHi km lliftite*
noun of the «ame day, air U4wmr4 Hm%ei%i^
]mrted the Bill Irotii ib«coaimi|aeie«f'ilit«Ma
floyse, with some anientkiwilw tx» In 9i4i^
and a proviso lo be adde«l, wUi«h w.bh apiii
to, and tlie provi^ ordei^ed t4« paake paftal^
Bill. Thit provitto now CDAlsra flit i%k^
clause ot* the ci>py «d' the li^iU On iW Mbil
June, Uie L&frvtiased Bilt, aft^r aia
had beon uiftde at ttic tahW^ v¥w |
i\Ht title of; * An Act for th« betlw |
* of hia naajesty^a |ters<>n, ^
and orderetl to l»e carried up tw iSmt I^fi%
ivhicU waa done the next day « It waa fir«l •
lif«t time in the tjorda, en ihm 3041a tif Joai^
and ordered to be read a aeemtil tine ^ i#
morrow ; it doe» bot appeat te^ Im^t^ htjta itii
a second timei and on the ^txl of July, I
Hotiaes adjoui ned to the 4tik Ai^ic. bj &tekn|^ |
urdera, and the Bill waa heard vl' om Mnat.**
Mr. Foi, I bdiefe, first caiiaeH tiHe M IP
be putdtshed, fi'om the Papers of ibe Hb«t # |
CommoD8« It is as follows :
** A Bill for the Preserralion of iIm Pcrtea^
Oovemmettt of his Gnrioiis li^«ii
King Jamea the Second.
'* Whereas tin pud eni, 9eaiidak)iiA,iA4iiiiBM
speeches an«l pamtietts hare oH^ (by ib^o^
rience^) pnjdnced iiistirf«cli«Q mmI- ivMiM
u tthin this kitigibni^ inmI yafDmafti|iilt>B
sacred peri«on of the kil^ and dia btat af tf^
Fernmenis bolii ia eht»rch mmI Mal«« mom sm^
bhithH iu this realm i wbich amfaaiimw «►
chief, seldofn heard vi in otker kiin^aijii
now more frcqtientlv tincrli-irvl ii» U^lnaf^M^
tiian forn>erly. A ' tlbeA wJiWirfiH^
pearef) very tutely ^-^rkftrms aaaaMni^
tioci ami lielhslk pi«ii, datkrvt'd iif«i tei
affaimst our lair merrif^T) ntnl bEwayed aaiuiWiai
kiti|^ Charles !ld. areat htttibv a«l
nndoulHed soeot^i »«t|pmCMi«a avnp*
ralffoe, kinf|r Jumt^i; 2i\, (whwcn Hod lai^fpe^
served ; atid wheirait it in itill pWnt tbal iba
* ' ' Limniible |il««ita ar
f im by ib« attttvi7 i
yrt da^
leaa^oA
n-aUMPl
f ut«y the Ltirda. aad
liba
biofeiima : Walbs
1015] mtd ^jihtn^Jbr H%h Trtamm.
MSI, I6ef« 10113s, or •■€ nrvHipr ^ llMKby*
^' aiie or otAiiT ol' tlic nsui}*; timnechs, lYC!e|it
#wl iMrliAar on lii« ifroiimf, rr>erBtetJ nicttti
«b4 di«ty 4V«iii n!4iflK f>tid 4ni«ors, {>«titac««
A.B, i6m.
no«
hwlie from Jolin Dick, in Bi^tibaiw, Q<)inti«ik
J>idc Ibcr, WUttftm M*Oiiqiiie in Dn»iiii4iii|^
fmtme^ Hiigb, Juhn, otiil IV ill mm i^mr
ttivTi J4iiiie9 Cttriic«rt Uier, UuitittHti M^Ail
■•HiJitiliit, liDviti^ <1uly ooneideretl ihe pre-
■niNv ; nad re[iiniit»ring lAua jti Hk^ Miiriv<en4b
2mpof the niffa <>*' <Jf»t»o EHxaWtli» («1 rv«-
§tm was nude for the fipesefrac'on tif liei*
iTmj'iics |>prKUfi, ami tlist in iht UiirtepmH yrw
•■d iflorioQs tueiMory,) aiiot|i«r hi^ht j^nod mid
|MvffiimMe Ihw, vtbs tiiad»for llie Mitiety of h'tn
Wm$t*ni*m peraoA ami f^m-CTTifneot, a|piirrat
imuMNiaklc and scflitioim pamic«s and at-
Imqiii^ Ooeitkoai Imadily beseech yoNr mu«l
OPilmt Kiajrvirc Uuii it may be eruK'teti, and
il ca^ictH by i\w kiai^B moat exceHetit tna^
tic, by and Witli itw ndvice «i»d coB8«iit «<"
! Lcird4 H]kii Await and T^m|ioraU and Com'
main tb is (I'esent paHiBmcrni m^s^^mbied^and
hf llMf aii4boriiy of tiw mine. That if any |)er-
mam m- p#T9rifli«$ ^bMtarMpvfr, aNtr tbe first dwy
•C July, in tb«« year id' our Lorti 1^85, during
ih^ trntrnwrnW life ot^ r>ur moi^t fprticiou« sovmigiie
fofd Cb« biMff, (irhtim Almi^lity OmI |»fR«rT«
Mid bleas witb a loriif aad priisp^ixius reiitfrt,)
ahaU, witliin the rpatriH or t«itbriMtT i7ompa*<N,
ftnaK^in^^ iarent^ dinise, or intend drarh, of de-
airtij tKNi, <5r any bwhly harmt! liMiding tu the
d«atb i>r ({etIructiiMi, tiiaitn, tir wouiidin^^ \m-^
priaotiuieuttf, ar restmint of the pcrst^xi of the
•ame our saveruiirnc lord the kiof^', or to de-
pri%'e or Ae^ume hiiti I nun the sttle, hujuiur and
Jcint^ty name of the imj^eriall cnmne of thift
r^uhur, or uf any other hi«» mayVuii dnminions
or countries , <ir to levy warr ai^ainst hts iiia-
jeatiif trithin this fcali«p» ov Kjthuut : or mcne
or ulirr any lurrei|(iier or niruinjers with force
to invade this reatme, or any other It is mujes*
Ilea domiuiona'' or cotiiitriea l»ein^ uuder Ini
majesties oWyMnce : And such ccimpa'iaiiig'a,
iniatcfiiacVn«, i nvetit ions, dev ten, ar intetitiona,
0f any <d' iheni, khati exjtreaa, iitlvr or deebiv,
lijr any |Kmtifiir» wntiMif, preuebiiiif, or maH-
4!toiia arw) adf laad tf*cakiii|;, boni; te|^liy ctm-
▼icted thereof, ii|ion the oathn of two lawful
mod credible witue<(ae«» upon tryal, or <niir
wis« c«iri«'irte<l ur attaintrd by iliie rourst
lair^ then evrrv fiiiHt |ifi^ou or fN^^ons, mt *i^
■fereaaid offend ini;, sbull he de^Miicil, and de-
dartd, and ;i*inui'rr<l tn [m* n traitar tir tiaytor«,
ftad aliah km **( dnaib, aad alao lom}
.•Ml ffirleil ai^ <>i \ii\gU Treaami.
** And be it tun her enactr*! by the authority
llbivaaidt thai W any prraun or periona at any
Um9, afW the lirvt \Uy uf July afiiretaidi f^balt
hf any prmtui^, \*faiiiu, |ireachiii|if. or other
mahci^iiis or adftsmi ajieakiiif;, declare or ajs.
mtpn that Jamec late duke cif BH on mouth ta
|h« ' im of our l»t** bh'iMeil *ovi»-
f*'t ri4^ tbe M»4vmd, or that the
aaio ^iiuic-^ iiMih n tyth or Ktiod claim to the
ifllfttHal crowiif ui thia realm, or ot any
illiir his ma>'li» domimmi* and vomu
IDM^ that ik«a attry luck jintatt ar |>tf-
Bofis an <»/rendin^', and n|^ '■ ti- ^^ -**-- rrf t^ra
buful and cnMi*l>k ^i irval*
or oihertii«e coovitittd i. :,.--..4 .jy dtt#
CoArae in law ; then everv aooh pcri^An or f>eN
aona fd>aH Ix-e deemed declared nnd a<ljiid|f«d
to be a tray tor or traytora, and shaft vt^tPer
paioes <yt^ death, and aiaa lute a ffi»i teit at ia
case a^ High l^reaaoD.
** An«l be it further etincfted by the autfiDnQ
nfiinewiid, tliatif any peiisou or pen*oos at a '
time aiter the Brat day ot July, in the year c^c
Lord !t*8i. durii * I' ' halhna"
nttitlyauflad^iA* n^^pnarli
inj( i»r other speuiMii»^, rxjfTi-sN, juiKioh^ utter, c
declare any ivw^ita, wenit nci*e, or o»her thing or
thinC"^ '" '"'vf** or ifUir Ufi the iK^ufde lu hatred
or di- .'' person of liis ma]*«e or th©
f^ibl.. 1 1 ^ innitient, then every such (H'T^oh
and perum's bein^ thrnof legally convicted,
aba II he dr»»ahM to have or etijoy, iind if
hereby dtsaWed and maife incfipable of havingf,
boldiii«f^ enjoy itiif, tir e?ft'rn*itig', any jdacei
otficet or prorwotton, ^ ' ul, civiC or i
litary, or any other c . a in churi^h an
atate, and shall liken ibe be tiuhle to auch fui^ '
ther ond other p*mt!»hmeniK as by the common
law and utatulea ol this realm may be inHtciol
iti auch CHf:e«.
^*- Pri»vide«t always, and be ii de44are<f, thai i
the ofisertiit|^ and ivmintainiu^ by any viriiingj||
piintinfi^, lireiiehiii^, or any othtfr speaking
ll>e diK'inne, di^'ipline, di%i»e worship
((OfernmH <*f theehurt'h of En^latnl, aa it 1
now hy lav* established, a^iitist popery, or an J
other difffrent or dix^enting opirir«in*(| h nn
intended and shall not i»e intiTpi* twi or en
tdnifd to be any odence iv^thiu ihtf ^vortls
meaiviii^ ot thit* art.
•* Providni alwnyi, that no person be pras6<l
enied upon ihi^ art^for any ot the offencif^ itll
thin act nirnlKHifcIt iiiilease the tub rutHrioilj
thereof be *(ivt*n npun onth, lidbre anrr^ejustic
of thepHi<**% ami taken iu wntioif Kitliiii torti
"' n'K at\er iIk ' ^en,nrlr
t're<l,afid > ^*k>i nl ih
; -•??% hii li* 1- w, ^.,, , t -^^HN, midfi
! li maniKl ; or by nr»lrr of tli
L ,...^. ,. .. . if hj» irtftteHtte, ht?i heir* or *iue
crmtcinii. (Iirrrtf-d uuto the aitoiticy ctueiaf fo^l
the time b**io^, or i»onie oth«T id tl>e ctuuic el|4
learned to hit. majextie, hi» heirs or muc ce^scirtll
for the time liemir, *"*•* nhul any peraou iifj
pervona by vertue of ilii* prt*H-ut aet, ineuf
aoy of the irenallieft hf re n iM-biie nietir*onedj
un1e9>^ he or thry In* prtKrcotrd Mithiti J*if
roonlh^ tieJtt jitt^r the <iHVoi*r «i>tiMtiiit< d« tin4
iofhctiMl lltereiipofi
aucli prH)(ernlion, u
to the ton!
** l*rovji
no persiou «*i y^
niohtlia nf^
nin i'f^ntryfu
Mini ■J' ,
: Ik' it enaeied^ thi
A Imt nrdt(if4l,arnt
«d, or eoo^mnddy conviciei) or •iNimMlorj
9 J A M ES 1 1. Proceedings against the Duke ofMommoMik, [KMB
>ii. .. /.H«« SI*I<ure, in Chnlraerstoiine,
t -i.'.ij^* ^luiu'. in Craifpuall, John M^Neiah,
... %K'.i.>t\-\. WultcT liunter, John ami David
\% i.ixi^. u\ IKihnelingtoune, and John Hunter
111 % i.iNMHliinaviie8; And lykewayfs did trt»a-
«,>ii.i!U««> rtH*i'|>t and harbour .Mr. Alex. J^nnox,
^li . Alexander llosse, Mr. Alexander Pede-
MMu. Hiiil Mr. Alexander Hamiltoune, \8^ant
l»r« aclu'i-K, in his house of Carscleugh, perinit-
irmii tlkoui to preach ther, and lyketvayes
harlxiiirf^d and intertaiue<l James Gordone,
^(iun;rf**', oft' Craidiicy, William Gordon, of
i liiivfiinn, AlLxaiuler ltuuter,off Cullquhassen,
ffave Craichlfi y a |>asse key off all hi.i rOunies,
Hcnt iiieatt aiiil drink by some of his children
and Kf rva:its to iiie house of Kdwanl Lowrie,
ill llirliaini, tor the use of the said C-raichlev,
and lykewnyes did );|falher collections for t^e
rcliells, and sirflcred the said Mr. Alexander
Lennox and other rebells, preachers, to baptize
children in his house, and lykcwayes did most
any of the treasons or offences aforesaid, unless
llie same offender or ofi'enders be thereof ac-
cu%vt\ by the teslirnony and deposition of two
lawful and cre<lible witnesses, upon oath, which
witncsKes, at the time of the said oflender or
offenders arraignment, shall be brou(rht in per-,
sou More him or them, face to face, and shall
oi»eniv avow and maintain u)ion oath what
they have to say against him or them concern-
inff the treason or offences conteyned in the
saitl indictment, unless the party or parties ar-
rai«i^ed shall wUlingly without violence confess
ilie same.
i( Provided always, and be it enacted, tliat
this act, or any thing therein conteyned, shall
not extend to ileprive either of the Houses of
Patliam(>rt, or any of their meudiers, of their
just ancient frciMliHU and privilcdge of debating
any niatlers or business which shall l)e pro-
pounded or debated in either of the saiil Houses,
or at any ronfeirenres or committees of both,
or citber of the said Houses of Parliament, or
touching the repeal or alterac^un of any old, or
prcparit!^- any new laws, or the redressing of
any pv.blic grievance. But that the said mem-
berri of ei her uf the said [louses and the as-
sistants of the House of Peers and every of
them shall have the same freedom of speech,
and all other priviledges whatsoever, as they
liad brfore the raakiuif iif this act : any thing
in ibis act to the contrary thereof iu any wise
notwithstanding.
•* Provided alwayes, and bee it further enact-
etU that if any peer of this realme, or member
«f tiie [loMse of Commons shall mo%e or pro-
yn^i'. in either House of ParliamH the disheri-
si'in of the rightfull and true heir of the crow n,
or to alter or change the descent or succession
<if I lie crown in the right line; such oHVuce
ftbiiil be dtemed and adjudged Hitfh Treason,
and twry person being iudicted anu convictetl
fil'rHirh treason, shall lie procee<1ed against, and
•hull ••uiti-r aiid furfeitc, as in other cases of
lli^li Treason mcnc'oned in this act.
II Pi^i'id«U always, and ba it ordained and
treasonablie harbour, ieoe|itv e
tercortion with and doe ImToim to Htj, if te-
rieallao, -^ M'Downll, of Fraiick, faw
faulted and declared iraitors, and the otber paw
sons above-named, in mnd about his onva bMse,
and else where, did consult and advjse iksi
for selling and disposeing upon ther eststesia^
fortuns in our pre]iidi«se,did draw prtekiossai
representations tor tbeoiy and did utheia qf
favour and assist them. Whcrthrow thcaii
James Scot, late duke of fiackleagfh and Hms-
mouth, sir James Dairy m pie, off Soores, iii
Andrew Fletcher, of Saltoune, have Kiisitii
and are guiHie of the crymes abowe neniiisd^
or ane or other of them, and are acton liitarf
part of the samen, which beinK found b at
Assyse, the deceast duke of BmSEclengbstfll
to be forfaulted in his lands, heretagcs, liin%
offices, goods, and gear whatsonnevcr, asi ha
name, fame, memory and bonouvs, and tb
other persons above named, they ought M hi
enacted, that no peer of this realm shiB h
tryed for any offence agrainst thbadbsth^
his peers : and if his majestie shall gitst hs
pardon to any peer of this realm or eammtm
convicted of any offence ai|^inst ihia sctdk
such pardon (granted, the peer or csb>
moner so pardoned shall be restored is sH it-
tents and purposes, as if he had ntrcr tafl
convicted : an^ thing in this law to the CA-
trary in any wise notwithstanding."
Mr. Fox had said: << Periiaps i
mig^bt think it more discreet, to leave socfei
production in obscurity, lest it should cvcrh
made use of as a precedent ; but whoever y^
ruses with attention some of our moders sti'
tutes, will perceive, that though not addtod
as a precedent, on account, perhaps, of the
inauspicious reign in which it made iti if*
|iearance, it has but too oflen been usedvi
model. ^'
In justification of this last position, vkck
had heen questioned by Mr. Iio»e, BIr. So^
jeant Hey wood (Vindication p. 238) basahi-
bited a com|Mrison of part of the Bill with fat
of the statute 30 Geo. 3, c. 7.
The Act of Attainder was as follows:
An Act to Attaint James Ihike of Momocn
of High'TrcoMon,
" Whereas James duke of M<mmooth htf ii
" an hostile manner invaded this kingdoamt*'
*< is now in o|)eo rebellion, leTying war agsitft
*< the king, contrary to the duty of his till"
<< iriance ; Be it enacted by the king's W0L
** excellent majesty, bv and «iith the siriM
*< and consent of the lord» spiritual and um^
^< poral, and commons iu tlii« pariiarocat as*
*' sembled, and by the authority of the ssa^
«' That the said Jainm duke of Mennssril
<' stand and be convicted and attainted of hfb-
^' treason, and that he sutler |Mina of daSikb
" and incur all forfeitures as a traitor oOBvirtBi
" and attainted of high-i
vs wurnin^ by sou ad of
0pmi priKramauoti, i*itli displayed
usieiiig ottic-r bdleinikities necessary at
»t croce of Kdinburglj, Ptrr and
Leilh» as hiring out of the kingdome
nie ; and tyke vraye* jirtKlucf'd execn-
mbi the refun antf (itildrcn of the satd
James I^ol, some tymediiUe of Buc-
!i, sir James Dairy mple^ ofl'Staires, and
Fletcher^ ul i\\ti\r dialling; houses
hts kin^dome, and marcat croce eWer
f iz. apaiost the reltct and children off
3iid Jamev Hcoi at the castle of Dalkeith,
H4irket croce of Dalkeiib, Jedburgh and
Rj^ainst Andrew Fletcher offSalloune,*
I
letcher of Salloun had. In 1681 » upon
Itainderof Arj^y le, retired to the continent,
ed in Monnionlb's eicpedllton ahhoti&^K
^proved of iL At the RevoUitionhe
tl with the prince of Orange. He vigo-
0|ipt(9«M) thf union l»etweeu England and
id, II nd on oc'CtiL>>ion of the attempt upon
T Iwing^dom in 1708 he whs for a time
imI : See -I Liiini^^s History.
dier," »tt>s Mr. L'4ini^, "was appa-
iUe enrly pnpil of Burnet ; hut hi^ vir-
'■^ *imhniietJ hy raatui-esltnly, f'lreiijn
ntioci, anil exile. When he wiih-
the oppreanive i^ovemment <>} the
\ ork| heeng'aifed as a volimteer tu the
fariau warn ; and, rather than desert hia
J, fmbarkitj in Monmouth's unhuppy
ion, tif uhirh he disanprovetJ. At ihti
n he returned Willi the (irince of
whoMf !icr^ice lie declined when that
as ad%anced luthe throne. From the
f the ancients, and the ohxrrvation of
governmentK^ he liml indjibed the
iHt of a is^fuuifie teiMiLIti im. DiuTtMii^d
Dou^Has, Robert Hal), James Berrie, indwe,
lers in Edinhurgh, his wiin€«ses, and bein^
soleraalie sworne, made faith upon the trtitR
and vericie uf the «*,\eeution9 in all points.
Wa rra n t for p u r suing*
His MajeitUt Advocate produced ane act of
his majestie's pririe councill for persewing* th«
Aires of the fate duke off Montaouth, and
tenacioua of his dimity, and scrupulous in tlie
obaerrance of erery point of honour, bi» «pfril
was proverbially brave as the aword he wore.
[The same expression is used without commu*
njcation by Lockbart and Macky ; but the last
h peculiarly happy in bis character of Fletcher.
* He is a gentleman steady io his principles, of
* nice honour — ^bnwe h.h the swonl be wears,
* and bold a^ a hon — would lose liis lite readily
^ to serve bis country, and wouhl not do a base
* thiu^ to save it-'] Hn* schemts were otlea
eccentric and impracticable ; hut his ^eniui
waa actuated by a sublime enthusi4«m, and ea«
riehed bv aii extensive converse with books and
men* Ui% eloqmjnoe i% characlerixed by a
ner%ou9and concise simplicity^ always dij^ni*
tied» often sublime \ and his sjieecheji in par-
lijiiiient lua^ be clanseil amongf the best and
purest siiecimeus of oratory whic h the au't
Sroduoed. [It appears from' sir John Clerk'a
, lemoir§» that Fletcher was not rvjwri at ex-
tern pi»niry replies. His Ri>eech(Df to be dia*
tuu'lty uFiderstiMtd, must ht^ read hJMcincally,
as lliey rcier to the diHSemii clau'^rs o( the ad of
^lerurily and tiuiiuitions on the erowfi. In this
view, his Convei>aiion ontiovtrnments, written
to vindicate the proceedingn of ihis session^
ttjipeani Uj me h* be «jne of the best ^pecimena
of dialoifne wnfmtf in modern time^.] Hia
ffveopinionx wmv confined to no sfri in n Ijgio
nmp citti<ttt in ill* dale T*l»a l^^.
1051] f JAMES U,
' fjeHsAieri^flr<ouiie, for thf crvmoi lybdted
£'b«f«Qt ibe |e»dur litllowes:) Jidiubiiriph 30
y of In\y 1685 1 iW tonk ik liU iiii^e»lie'«
I pnvie rtMAQcllI d<ie bfreby |n?r ordor ami war-
rAtid to his moi««lic*s AHvocat, to pr»cci %ud
nene^v btfore the Lonk CommuKiioDCis of
JiMUciiiry tlie .4ir«» of itie bte duke of M<in-
muuih, aiid Andreiv FleicWr* of Sailmirir, for
tbetrlajte rebellion and itivusione, and tbf> ntber
Cryrries to be h belli^, i%itb priwet' to tbe saidt
; lords lo e^caiuine witnefi^ies itrevuiUBlie if nerd
beU oootiirmf; lo bis un^estJe'K letter.
Extracted by nte,
SkSubgcrihitur, WiL. Pati^raoke^CL B.Coo.
Tbt Lordii Justice Gencrill, Justice Clerk
§ii4 Comnii^Hit^rs of Jiistieiaryi tor eeverall
good reitfoos and confeuleratiuni moireiii(|^tlietn«
' continue the pri>ee$a aod try a 11 of t'ortaulture
•j^iiisl tlie forenntned peTM»us till ibe fourlb of
I Jiituiaty next to coiue, and ordaiupfk tbe any-
fei-K to atiend, ilk under the |>aiie ofdOU inerks,
pud ordoiueji tbe HJthesset* a{jfaiaat tlie iaite
duke of Moamoulb uud 8;kluiui)e to be tietaaied
|}iriKtitier«, and tbe witnesMW air&itiat Staires to
^tiendf aod reconmietidfi to \m mi\jeslie'» cash
kvef)er to aliineui them i|i tbe iiiii&n time at the
tale oN vijttean ^lenee per dieiti for dk horsmati,
•ltd eight |ieui'e j»er diem tor ilk toottnuti, and
dfiiilate tbe^ will take their tarder expem;«fi U»
ftgoKidd-atioa at tbe«veat of the process.
4th day 0f Junuary^ 168^.
The nict day anent our !Wiverai)*ne Lopr!*s
#riniinaH letters off treason, raised at the in
■tanceof sir George ]V**Kenz»e,of Roiehaogb,
hb mtijei^tie^s Adiorat for his bitrhnet interest
fcgamsi Andrew FJetcher, of t§alioune, and the
laite duke of Bucckleiij^b and Monmouth,
And for Jaiue!i Dalrytnple^ of Stairp^^ for I be
Cryitie^ off htgh trcasion and rebellion, lybelled
t|g'iin«t thern ui in preccdenie die.
The Lords for severmll cauat^ moFinif them
' coatintiod tbe dyet a^inst air James Dalrvcn-
y\^ off tkaii<«S| Uil ih6 first Mtiuday of iprij
Hilt.
Tbe Lords continue tbe try all oft the fate
iuke of Monmouth till to morrow, nnd ordaines
til the as?*yspi"5 to attend, ilk pers<me under tbe
Kne id" 5'>0 merkf, Andn-w Fletcher, off
Itoune, hrifii^ otten lynies called and not
Cvnnpeimnd to iinderlye the law tor the
eryiti«*& abore written, was declared ftiaritive^
and h)« majeiiiies Adt otutr deelaretl ho inaistrfl
miniin*it bmi ffor hts fbrtaottnre; nod ibelybefl
beiay publickly read, tbe Lordjj,ei»ntbnoe to the
«AeveDib art of tbe tirst seH^ioo secHuid parba*
* ment of king^ Charle»the»ft>ind, did proceed to
confiitler and yitt ther Interloqiutor tipon tbe
^bell.
His MiijfMtks Jdtmrmtt detlaires he nvtrictt
Ibo lybHI aK^iuHl FM^ '*» *- ..frs*lioiitn., ii» ibn
irtK'ft! ot tif^iMiii 31 'Oiiorird in
llie lvb«*(l aneut bi
Procemihigt ^ffAml ihe Duke qfM^mmotdi^ [109
Tbe L«t^ Juftire CaCMCsH, imiuihtk
and Oomintasiooera nf Jmmkcmnm ffioda tbt If*
bell as it is restricteil by bia majraSAeVAdtmii
to Fletcher of 8alioiin«, liia uivadtn^ ul Ite
kin^dome of £og1anil« rrlevsfil^, suit aciBiEa
tbe aame to ibe kiii»wle(lg« ^mmm
.1
The Marquis of Douglas
The F^rleofTMarr
The Earle off VVintoune
1*be Earle off Lainlerdaillt
Tlie Eiirlc off Panmutre
The Earle of L$alcarra»
The EaHe of Calendar
Tbe L*ird Liviti|>^toaiie
Tbe Lord Hinelair
Tbe LordTurphicbea
Tbe Lord Elibaftk
Mr. Jiini^<« Elies, of Steuiemiloei
James Htunervell, of t*r'f'?i
8ir John Clerk, of r\ c
8Jr John Daliuuboy, -i Li._i ilk.
Tbe Afisyse burhiUie awiMit, bo 4
ibe La we ill ibe conttmrie,
nis hfujrttie^t Advocate for Prnhatioti*
diic^l the uiine8»>ea ellerdepon-
taine Robert Hruce nnd cupi.
Biu^e, lately iit the Duke ol' Jt^ratabti^^
service.
His Mujntui*t Adju^eafe produe<e«l ttfm»
siooes under the threat ieall in their tav««ireM
their being eiigidged rn the ssiid rebelUaUt*
* As to the ttdmicsibib ty of ihe tmntmmj tf
accomplices in geneml, Mr. Uume aaya ;
** Umier tbe head of int4*reat i« tlia iMI
of the Irialf we are naiurally left %m wa^mme^
eerniot; tbe Kttuatjou of a JSifC^ui Crimmtt^ wd
how far lie m a receivable wittiest m^&nM l>
associates who are under tnaL Th« *
to ^iicb a otie^ as it b:is g«»oenilly beeti i
re»ta on twt» M»%eral ifroiirMU ; fti^ai of Hit «•
fainy of tbe witDeM, ii<:curdiii«;;f 1*1 tbe ilifT
which he is to tell of^ hiruBrll ; anil lli*t«<ltf
intereat to loail aod convict bia «MBocialii| U
order tbe more to liKbien btN own abarv ieibi
foul de<Hl, and the better to retaamm^nil him*
sell to the favour of tbe pff9aentiBr« at wb^ii
mercy he in icome nieaviire m. Hub tN
jud|t*K qI former timcn, aeconti»|f lo Mw^
Vfoiie, part (, tit 36, no to, timM» cottsfiv*
aiiong bad been of sufficient wrif In, %m dbllP'
mine them a3fain»t rereivintc « Sodtti Crt*ieb
except in tbe trial id tiich crimia mm couMmI
othervk'iKe lie proved at nil. Afid In aaipMrtif
what I^lackermie bii« caid, il lAa^ be«ll»||*li
thai in the liebate on thi« Itead iu tUv lei^ m
MaflleotI tif Aitiitt for treason, Ft4i. 9^^ fCfi,
tbe pw>>B«"Mi<vr MMfcifiM III allow^ ibat <
be Ibe 1
Engkiul niib tiie ihibe ot liitocku^k
igdume of I bnTtng'
r Hpeet lo Ihoev %i teairt« ^
riMjr
cHmt 10 <|iiQKtioa, bate
been c!hjhr|^ witli
0nd Hthertjjbr High TremsfJm A. D. I6i^.
liim in %\mt fViip ; Df^Kms, lie knoirm rsptame
Anilimiy Du !!««•« a B*TinilehtirgtT, am) sn^ him
til the nhtff w^th Muniiuiouth ami !%hotit»p, zlbiI
MMfr him eoofrersr with thew Htrnttiarfi^ ; anif
lbi» is the trvth ob he shaH aD^nrr la Qtfnl.
Ros£fi7 Brvcb. LiiiLmroow, L F. O.
Captiitfie JUbert Bmrei kwtly caplaioe Ji*
tkr «li*ke of Brai]ilrbrti|;{'h-s sei-^ii!^, agctl thret-
ir m% yenr* or therby, unifiarrieit, \mT^v\ of
Bmlice, firejiidiDe^ p:irtiail cinirH^ill, ill wtH^ <5cc.
Uid solemn fie sM^orne, he kiii^we Aoilr?^
Pktcbcr, r)f iNilloiioe, anil that he saw him
Stome tiwcT iii (he shipf front fJutlafitl, uith tlic
l^te fluke of Mnnnniuulh, ibe lyme lyhclkil ;
llid that he laiid^l with hiiu in Euiimtitl autl
l^as in hi^ com^aiiVt ^i^^ harl horse ami arnies,
p.nd tb&t tJte day nff the randeviatixe that itas
tol|lpoyuteil hy tlie laite M«)DiiiDoiith,Mter he
IliQdiHl ill En trial id, as ISukuuiic \va!j ^oeing
I1i«^r he yited oue Daer, aue Eii|£^ish ^uhi-
pniilh, aod thereafter fled ; ilepDn^i, he kinmes
6kiiU<>tiue vraa verie intituatH i^iih the duke nf
imnmouih ; DeponSf that ^houoc t t\rr the
laughter of Duer Aed to the lihip in which the
liMke t*f MoQuiuulh came, and depons, be &^w
isin^ othera. Rtfei-ence may he made
Isolo the thai of ihe R4»lieTtsou8, March ^tb,
i4S7 1, tor caiiting down *4 lumseu ; where, after
arf{iiJiient m some Jen^ih, iH^fween iiir iohD
ishet and sir George !U:ickeazic» jnd|<rnieiil
as ^iven siistaiiiins^ thi^ ubjecliiin : where*
ijjan, tww witne^s€s haviiij^ heeii iuteiro^ated
\rt iimine touching their own |mrticipiitiun i$f
' le crime, and having acknow Itdired that they
present and aaaiijting' on tLe neca«icin,
leir examioalioii waei here cut short, anil the
ixe straii^htway fonad a verdict for tbe pan-
leb. But tlie crime, in this iuHtance, wm
loe of a very public uiitare, the riotou!^ demol-
lahinsc of a house, with res|iect to which there
euld be no penury ol" unsiisp4'ctfHl fkilOPSBes ;
d there \i as reason also to Wtieve, thiii the
^annels, two of whom were hoys under four-
teen years of a^e^ and acUng under tlie in-
flucDce of tlieir father, were mure excusable
than the x^ry persona their anociates, who
irere now cat red as witflesaes agaifwt tliejn.
1*haA judpiient, Iberedbre, waa tti nowise de-
cisive of llie law, nor indeetl am I satisfie^l by
ny thin^ which has fatlen under my own ob-
•ef^vattun, that any «urb rub e%er yarned so
fkTxn a fiHitin^ in our practice, aa IViackenxia
liaa alleged. Certain it iM, that ao<m after
Mackenzie's own timCf a delit»eitae judgfinent
Ifiteii tlie other way. This Wiig in the
tiial of Samuel Smith, July 3*1 and 4tb^ 169d,
fur lireakintj; into the Iioum; of Pennyciiick : a
^precetkfit wliich ia the more reinaVkable on
thl« nccoiirtt, that Faa and Wibuu, the two
Socii^ were not free from i^ili^r reaaona of au&-
picion; and thai Hinith waa convicted and jsuf-
lered death ou the testimony of thc?^ two per-
sons alonCf w hose depoiiitiuna torm llic entire
jirfKif in the ease.
^* But on \hi% head I khall not enlarge, be*
Cat]»e, whatever scru^de^ may once have been
entertained, these have been re^iohed in the
opioion and prat tic^of later times. It is now
Ar||(ii^. rf<:pectinff hitn who is challensifed aa
#cci«rf rrrmmiff tlfat llMHijfb nrit so cre?ht«Me a
iSHTnes^ as <^tw who is Hub*© to iw> such impn-
yetstiU ba cmmot be ii»ra ititminous
Captain Anthmty Bvjrtr,.1sftlj s eaf»taine m
the duke of Brandi'bruglks service, ag^F IhreCLrc
years or iherby, unmarrreflf pnrged off mulice,
prejudice, *ill will, partiafl coimcill, and so-
lemn lies worne, de|ions be carne orerltoni Ho|-
Un^^ the lynoe lybeliei:* in the ship^ %fTth thi
laiie duke of MonnrKHith, xvher he did Ree a
Ifentfeman who was caUeil Flelchpf of Sattoun,
who was a little man and had a brown peri-
viek, of a lean face, pL»cki narked, antl that he
saw him converse with the laite duke of Mou-
mokflh and n itb captain Bruce, the other vril*
injure with relation fo this, than to any other
trial ; urn! that in all other Inals he is a lawf\il
witness, not btrvinjf had any mark of infumj"
impressed on him by the sentence of a court
oliaw. And as to any bias which may ahsii
from fear of the prosecatur; this too is ob*
Tiated^ if it be hekl, which is now the esta«
bn»he<l opinion, and was positively delivered
on the bench, in the nutrd trial of Smith and
Brorhe, that by the very act of calling* him as a
witness, the prosecutor dischaqg^s all title to
challenge htm for the future, with relatron to
the crime in hand.
•♦ By Hfat. 91 Geori^e Sf, c, S4, No. ?l, it
was declareii, that m all triah in Scotland for
thetr of cattle, it shtyuld not be a gooif objection
to any of the proaeruturs witnesses, that he
was s^ftins crmtinit, nnd that such witnesa
shmid T\i*t he liitWe to prosecntion on account
of his accesBwn to such oflcncc.
*• 1 Imovf not whether the construction whicli
It now applied m all case^r to the act of div
prOdecftKir, callitig^ fitdi witnesses, was su^f*
geated at first by this statute which obviated
ill that wny the objection of tu€ivt criminu,
See the debate in tlie ca^c of fllacrtoiiaM and
Jfltnieaon, in Aut^ust 1770, win eft bemg- ex-
ptdined to the witness beffire he deponea, he ia
m a state of absohite fi'eedom as to the story ha
shaH fell. For thme reasons, in tba c^irse of
this century, urn! eapecially m the latter part
of it, the objection tk' tochts criminu has been
frei|nently ovcrrulerl, s^o t'reqoeotly inrleed, tbaC
it is now only moved, in oHer to obtam, if (h6
cireamstanees make it reasonable, a reserva-
tion of the <Tedibility ai' rlir witness, as liabla
to be affected, in sofi>e rases, by ihe account
which he may jfite of his own misdeeds.^*
Contmeniarie«' respecting' Trial tor Crimes^
vol. 2, p. n3.
Mr, Ifmittt also notices that " In iom<
of the late trials tor sethtioti, though a crime iit
nowise of an c»rruU nature, in teuht in tbttsa
parttculnr tn<>tancef, (for the mischief ikialked
abroad for a w Irile in open day) the evidence
rif Altrbievm, »ud other aasociAteiS in Cbt Cdftt
spiracy, was tikeo wttiiont feaerre.** *
1055] 8 JAMES IL
mm whQotdimn]y termed [bim] Mr. Fletcher,
off<ouiie, and lojd the depOD^nl tbiit he wus
aScoU i^entletDan off a i^ood eslate^ Dq^oushe
Mwe i\]r. Fletcher, of HaJtorrne, !tiu it th« table
with the duke off Monmouth, and mw him
rjdbg on horaekkfk wiLb liini^ and a pTsti^lI in
h'm band, lo llie eamp, eikr ihev haile landii in
En^lattd ; de|>ouA thai the ^aid Mr Fli?tciier
off Sal:one« had some tynie a luzie, anddepons
that the said Mr< Fletcher baveing killeil a man,
which is noiorlie kno^eo^ he therefter fled to
the sbipc in whieb Monmouth came; deponn
the jiersotie that F Letcher, off Saltoune, killed.
Wag called Tbumas llaer, of Tantoune, CuuMa
scientie he was present and couversed with
Monnmouth and Mr. Fletcher ; depuufi he mw
Fletcher flee to the shipe; and ihi!^ is llie truth
as he shall answer to God. Antuony fSuvcE.
LiNLiTUGow, I. P. D. Com.
His Alajestie's Advocat for farder prolm-
tione, pro<luoed the De|Khiition orWiltiuuiVVil'
liams, laitc servant to tlie laite duke of Mon-
mouth, taken by sir Andrew Forrester, atNew-
gaittc, the IBth day of November, 1685, wher-
off the tenor followes : Newgrate the 18th of
November, 1685. William Wilbatns, late
servant to the laite duke of AIoomouth« de-
elares that he does not reinemkir tu have seen
Fletcher off Saltoutie, untill about a
year ayoeat Brujtells, wher be saw him often
mZ diner with the laite duke off Monruouth
that sofjtie efler the dei^ease of his late mojt^^tie
he carry ed a letter from the snn\ Laitc duke
(who was then incognito at Aiiititerdaxiie,} tu the
said Mr. FLotdicr the a at Bnixells, but does
not know what were the contents of that let-
ter ; that some fewe dayes befoj- the said late
duke'ii last eniharquctn|| lor England, lie saw
the said Mr, F Letcher ti ith thi? said Laite duke,
at his lodging' in 3Ir. Dare^s house, in Amster-
dame, >vber the^r two und ficverall others, who
were conuertied in the late rebellion, bad pri-
vate conven^atione ; that some fewc days eller
he (in waiteing on the said laite duke) m com-
pany witli the ^aid Mr FlelcLier and betwixt
30 and 4^> luvre, emhargtied m Amsterdame iu
a close lighter, or some sjuch weshell which in
7 or 3 diives i^aryed ihcm to the Texell, wher
the ship lay which carry ed the most of them
and a good many more to Lyme, in England
that during the voyagpe frtiin Holland to Knff-
land, be was coostautly couvcrsiu^ with the
said Mr. FLetcher^aQd so knowes him perfectly
well, as he did ever since the first tymc he saw
him at Bruxclls ; that he sawe him landint)^
with the said late duke at Lyme, and sevcrall
tymes tbcrcileron sboar, particularly at dinner
with the said late duke the same day iLmt be
Slie said Mr. Fletcher) sbott the same Mr.
are, which was done in the allernoon, but
that he was not then present ; that be under-
stood iff the said accident of killine Mr. Dare
had not bap^ieaed, llie said Mr. Fletcher was
to have been a Ijev tenant colonell off horse
amimi^fst the rebells.
This ezamiBatione hareiog been twice read
9
Prvuedingt againit ike DukeofMonrnoM^ [MBG
to Mr. yVijh'eiiw, was by liiiB owwd to be
true iu all the oovteots th Jreol , «ik1 b rrad; ts"
deliver it upon oath wiieneTer Im mijcsM^
I ao doing:, Tul f
It upon oath wii
serrice shall require hk i
attested by
Togfether with ane Actof Parli i •
ting him to be wersewed befor tl. .
tbecrymesof high treast^a Ivhetud i^gji^iAi
him, wbieh t$ record it upon i\ie siit^uib i£
July 1a.«i, whereof the tenor foUowtsi \
Aix Edinburgh, the sisteauth day fpff Juw,
1685t our soverai^ae Jord^ wiih conceal if
the estates ciff (larhaotent, doe heirbj rtaiiWtli
the Conimissioners of ^ustjoan^', the fmm
of trea^wne intended Sj^iusi th« aires of tk
deeeast Jatncs eaHe or Loudoun, &ir Jqaa
Dairy mple, of Staires^ James Stewart imi It
the deceist sir James ^It^wart^ laite pftifialif
£dinburgh, CoUine Camipbelt, of Ammii^^
William Deiihohne, nfi Wtist^hetjU, Job
Weir, of — -, Joliii Oray, of Pjcd,
sir William S!>ciH, yjunger, otTFarden^ AiKirf
Fletcher, off Halioune, ■ ^ BuiAt^j <£
Hassindeane, Gilbert Elliot, ivrvfter, in Edo^
burgh, aniL Walter Lt^ckKurt, of feLirktoimc, b
be discust he them itpon the suntonds p<
sewed he Ibre the parhiimt^Ht, w bieb is bffiiif
declared, to be as valid as jtf tLie tur^idi p^
sons and ilk ane of them hade been iiimurf
before the justices in the firat inetaoee ; arf
doe hetrby authorise and im power the LoHitf
Justiciary to |»rooeed toforfaukareagaimtlksB
for the eonspiracie, airt and p^Lrt tbeit^i €■•
Cf^aLEiug and not revealhng of ^e aame, mI
other crymes mentioned in the aaid ■iiniMif
iidtwiiliijtattding' they he abeent, and thai bk
off the assysers and ^vitrtcsi^e^i were not giva
to the defenders. Kxtrmcted furlti of the r^
corda of parliament by George viscouM ^
Tarbett, lord M'Leod, ami CastillbaTCD.
clerk to his majesUe's parliament, ooiuiciU,!^
gisters and rolls.
Sic Subscribilur^ Tardet, CI. Rcgiriir.
Verdict.
The I^rds ordaines the Aasyae to
and returne ther Verdict, who ac:oordinglj re-
moved altogether I'urth of the court to the tf-
sy«e house, wbcr baveing: reasoueil and volel
ti|]ou the poynt^ and articles of the lybell si'
probatione above written and lbere«»t£bv^
and ryply advised, they re-entered afmtit
court,*and returned thcr Verdict in presence iff
i\ le ^u1 s lo rd s, w he reo ff tl le teao r toHowes :^
The Assyse be plaraliiie of voices, \»y i in : ,
off the earle of LauderdailJ, finds .\ : : '
Fletcher^ offSaltouue, guittie otf ioiu^iii^ :
the kin£;^dome of England, in nrtne*, ioc f^-
pany nit!i the laite duke of Mrnimoiiih, tLr
tymc lybelledjin respect tlie same ia safficicail|
proven.
Sic Subscribitur, LairtiiutiiAajs
Efler opening and reading off tlw Vi»-
diet off Asyse, the Lords JuaticaGaDenil, Jv-
tice Cleiic, and ComroiasioDeiB off Jii ~
therfor he the mouth off John lilia, i
1037]
mdothert,Jvr High Treoion.
A.U. 1666.
fiose
o^ c<»uri, decernef] aod ailjnd^fcd the ua'ui An-
dri^w Fletcher oir Sultoutie, to Ij« eitecut tn the
dvHtli, dcit)Hin<^t as u traitor^ riud to un*kTi{ullie
l^ftiucH nt iri'tisorv^ aitd uff^'f puiiishcneiit n^*
iioyntPfi l>y the Iftwes ofTtbis rttiluie when tver
^ shdtl he apprehended, at such a tyme, place
1 in titKrh A ni:iiii)4^r as the aaidK lordti shatl
jPI^Vitt^ and unbiiraa hi$ name, fame, memo*
ry ami htmcnirs to be extinct, his Mood to be
t4iint«d^ aud his armes to b« riven 1'iirth utid
lie out off the books of armes, so that his
rritie may ii«'ver have place, nor be able
eOer to bniike or joyse any honours^
oflfK'tfs, titles or digrtitietnithin (bis reiilmt; in
tyiiic c-oioein^, and to have furfaiilt and tint i&il
and iundrie hia lands, heretag^es, tacks, sread-
roomii, possessions, title:}, offices, ^ooils,
I ict-ar whatsomever pertalnlnj^ to hiitii to our
veroiv^MC hird to rcmaiae per^ietoallie ivitb
him ht^-hues io property, whicu ivas praouaced
lor doom.
Stkday of January^ 1686.
The diet continued a*fainjrt the late duke of
tlaccleu^h till the thii-d Munday of February,
151 A diiy of Ftbrwtfy, 1606. Lybeil against
the iat€ Duk4of Buccintgh.
The »aid day atient the cnmioall cause and
action offtrtr r— r -r *-r t Ht -undin^* nt the
in<»tatice of ^ ^<*, of Hose-
hauQh, biii H...J. ..i ^^:.^.k.,i j.>; hia hi^rbacs
mtcrest, against the decea^t Jumes Scot, some-
tvmediikeol* B*ii'klriu/lj und of Monmouth,
Alitia diUcbt'S ♦>( [ i bis relict, J&cneji
•rid Heury Scolfc, ! , ^imi and nearrfit of
Itine, for tber jntcn-cst, M»katid tucnliotie,
TbiH wher» nntwitbstaudinf;^ be the cnmuum
Ian, Uwc« and acts of parUumeiit of this hia
majcai^'s kin^dome, and conaiant practiite
th« " lie be the third act fir^t pai*-
illy I e seventh act lecond narlia-
mthi on K.jii;^r Jumcji the tirst, and ue the
Iburtetuth act riixteioth parUanicut and fourtieth
By nth act ttirelt parliament ktn^ James the
second, nyntietb seventh act seventh parlia-
ot off tinpf Jameti ihc fvfth, and hundred
fourtie fourt net I weft pArliament king
nca the wxt, and fyiih act titst se^-sion ttt^i
|iarliament )6n^ Charles the second, the
^rymcs of trijasoneand rebel liou, and th# rysfing
t.iM' inarmeii iifaiust hia majestie and
J^^ H, and the aboittintr, assbti&tf, re-
pliu|^« intercomonin^ and keeping corres-
pdence with sfuch rehelU, ^uph^io^ thera
with iiHin«y, armes, p t of
OOiincill, or ;>iviuy: tbeii rt,
Snd Lb« uturpin^ the S4 i ^r (Il^;Ilitie
^' the imperial n-fmi; liii mfyeatiisa
ftf^r --f fno«it d*rttHk«i --' I. .......
Idccryroca off
hii .^„ ....»j<:5ti«> and ave j^w ^. v, -, *..,
fktiltuTt! rd lyfe, Uoi and good«. Aitd be
llieaftcoiid aci urtMHMi liMttOfif Aral ptrliani«ut»
Ulg Cbarks the aceoml. It h declajri^l hi(^
treason to ptou, ountrtf e or intend *death, or
dr t<^lia»ti]it|i!stb'«iiyle,kiti9lMD»iii«
or honour of the imperuiU croi?n off thia htf
tnajestie^s real me, or front the exercise of bfs
royall jfovernnient, or Io Wat ie vt»rr or tnke
up anne^ ui^iiist his Kiajf^atje or unie eommis-
sionat by him, or tn intysc any .strangers or
otbcrtf to invade any of his dominiuoa, w to
wreitt or speak uity tbin|; thnt may express
or declaire Htich trt^asonable iuteutiou^, and i%
puoiahable u ith trirfaqlture of lylt', laoib ROdl
(^)ds, and be the second act third parliament
kio^ Charles tfic second, it ts tleclared high
tre;iHO)je in any off the subjects of this hisft ida-
jestic's* reidme, by wreilling, spctikiti}gr or mm
other oiaoT off way to endeuvoiir the attem-
lione, suspeiKsionc, di?ert»ionc of t!ie ri^it off
mcceasiooe, or drbanintf the nixt tactful auc-
cei»or : And be the elevtntb uci first sessions
»ocoQd purHaroent kiit^ Charles the aecottdl^
fortaultur^y are apfioynted to proceed io ab*
s«i»cc ; Anfl be tlif aiitic nyntb act sixt parlia-
ment kiit{| Jume^ the i'yiu it is appoyntod^
concluded and dehvere<1, tliat the aire iiM^y bd
forfaulttnl lor trcai»OM comiited be hi» predc*
oeaaor con forme to the oommon law, ft^iod
«iqutt^ and rawou, NeTerthelease, it it off
veritie, that the aaid deceast James Hcot, some-
tym« duke of Buckleugh and Monmouth,
sbackiat^ off all fear of God, respect arid m-
tf^rd lu bis majestieand bisautfaoriueaud laweir,
have pretiumed to coraniitt, and is gtnlty off
the kaids cry mca in sua farr as in the year 168S
ha did enter into aoe damnable plott and con-
apiracie with the deceast eorlcs of 8haiuben7r,
£a9ex, Argyle, lord Hiissill, aod otbere, lor
kiUng and murdering, at least for seazingupott
ther late gracious so veraigne and his prf»enl
majestie, tor raiseing oppen warr and rebellion
in both kingdoiuei , and lor contributing money
to the laite «arleof Argyle, for raising a warr in
this his maje^ies kiii^dome, and for invading
the same, both by »irangers aud tiattves, in
which ooutpit'acie our ofMcem of state and gar*
risona were to be seazed, and for that effect ha
(lid moat treasoQabl&e keep several I cooaulu*
tjoDi and meetinsv with the con5piratofs in
England, and with the lord I\ielviUe, sii* Jifbtl
Cochran, and otliers thci' ; but in fanler proac*
cutiofi off the said cofupirada, they did g<HB
over to Holland and Flandera, and ther cotiti-
nuad the aaidi Ireaaonable consul tat iones wttH
tliesaid lalte eark off Argyle, lord Melvill, sir
John Cochran, John Cochran » of Wattenyd^,
bin aone, William Den holme, of Westsheithl^
1 'bo mas Stewart, off Cultnes, and others, for«
fnnll and decloiiHid tinitor^ and rebells in HoU
land, and did treasoniiblte and oftan intercom*
itioii^'convente and Mmp aorraapoodenee wiffi
tham rV <t, within seteralt townes off the
Low noon the first, acixmd, third, or \
-'■•■ thedayeaoff the moofths ci]
uary, March, and reinatieni ^
ii,„i„;.;. .., .*., years 1083, 1G84, 1685, or out j
ar octor off the dayei off ana or other off tbt
monethii off nti{? fir other off tbf^ ^aid» veaiva i
and Lt' they did > anil *
otitrn hiite'earh? I titree,
serarali ybips, full of il>CD, arwcs and aiAOiU*
5 V
1059] 2 JAMES IL Proceedings agama the Dvie of llfomtum^ [1060
nitione, for iiiTading this kingdome, which ac- exercise the other fimctioiis off royall digv6e»
cordmglie they did upon the uay of May and kecped ane'annie, ibroep and guard abont
last, laud these men and armes in the shyrc of his perHone, did lead ud oooduct tiicai, aid
Ar;;Yle and VVest Highlands, and did leavie did assault, resist, feigfatand oppow his. m*
warr, seaze upon our magazines, sumond our ^ ^
ffarrisons, and continew in open rehellione till peared under some relactannyt uid dcdanif
he was defate : And the said James Scott, late that Mr. Rosewell should ooi dk. And as ha
duke off Buccleugh and Monmouth, did uiion was most happily deliTerad."3
the last day of June last, most treasonalilie ]\ir. Barrington gives aome infimnation npoa
ryse in open rehellione and armes a^nst his the subject of cure by the royal touch. " I
majestie and his authoritie, within his king- cannot," says he, ** help mentioning vfait 1
dome of England, and with men, ships, armes . . rf
and amunitioue, landit within the towue of
Lyme, and did emitt and issue fiirth most
treasonable declarations and proclamations,
marched up and down the countrey, robing
the horses and armes off his majesties good
subjects, did convocat and gather together his
majesties subjects to the number off ■
thousands in oppcn rehellione against his ma-
jestie, in vafl it the toune oil' Tantoune, and ther
the said laite duke of Buckleugh did mosttrea-
sonablie usurp the sty Ic, honor, and kinglic name
off the imperiall crowns off Scotland, England,
France, ami frcland, and caused himself to be
proclaimed king, and did take upon him to be
king, and was saluted by the people as kiug,
and they kissed his hands and cryed * God
^ blisse the kin^,' and he was called Sir, and his
majestie, and lie was prayed for as king and
command it as king, and iiayed the armie, and
touched children off the king's evill*, and did
- * In the indictment in UoseweU's Case, vol.
10, p. 150, he is charged with having said
among other words, that the people '< made a
** flocking to our said sovereign lord the king
*' upon pretence of Healing the King's Evil
'* which he could not do." [N. H. It is said in
the *' Bloody Assyscs," " About the same time
Mr. Rosewell, a very worthy divine, was tried „,, «,««.*.»-, ^«« «« u«. vunuci.
for treasonable words lu l"s I>ulpit, upon the their own king's touch would efTect the
once heard from an old man who waa witam
in a cause, with regard to thia auppoacd nin-
culous power of healing. He had, by his cfi-
dence, nzed the time or a fact by ooeen AnnA
havfng been at Oxford, and tDUcbedihimy whil|C
a child, for the evil ; when be bad finidied Ui
evidence, I had an opportnnity of addof kin
whether he was really cured P Open which be
answernl witli a significant aroile, diat be be-
lieved himself to have never had a oomptaill
that deserved to be considered as the evil ; bet
that his parents were iKXir, and liad no fijjB^
tion to the bit of goM. It seema to nic^ thet
this piece of gold, which waa given todme
who were touched, accounts lor the gvest iv-
sort upon this occasioo, and the aapposed afle^
wards miraculous cures. Gemelh (the fiuaesi
traveller) also gives an account of 1,600 per-
sons offering themselves to.be cured of thecfi
to Lewis the Fourteenth on Easter Soadbyi ii
the year 1686. Gemelli was himsdfuiurt*
at this ceremony, and says the worn md
were * Lc roy te touche, Dieu te gueriae.*
Every Frenchman received 15 soas« ud efoy
foreigner 30, after beiug touched : to soBset
the supposed patients the king said, * Are yn
^ sick too ?' This power of healing' by the
kings of France occasionetl g^reat resort i»
Francis the First (whilst prisoner at Hadni)
by the Spanianls, who did not conceive ihef
accusation of very vile and lewd infurmcrs ;
and a Surry Jury found him guilty of high-
treason, upon the most villauous and* improba-
ble evidence that had been ever given, notwiih-
standing sir John Talbot (no countenancer of j
dissenters) had appeared with £>Teat generosity |
and honour, and testified, That tlio most ma- ■
terial witness was as scandalous and iutanious
a wretch as lived. It was at that time given
out by those who thirsted for blood, that Mr.
Rosewell and Mr. Hays should die together;
and it was u|)on good t^round believed, that the
happy deliverance of Mr. Hays did much con-
tribute to the presprvation of Mr. Rosewell;
though, it is very probable, that he had not es-
ca|>ed, had not sir John Talbot's worthy and
most honourable detestation of that accursed
villainy, prompted him to repair from the court
of King's- Bench, to king Charles 2, and to
make a faithful representation of the case to
him; whereby, when inhuman bloody JeHreys
came a little after in a transport of j^, to make
his report of the eminent service he and the
Surry jury had done in finding Mr. Rosewell
guilty ; the king (to his disappointment) ap-
Favin's Theatre d'llonueur, vol. l, p. 961.
An indifferent poet of the times alludes H
this:
" Ergo manu admota saoat Rex chersdat, eftqne
Captivus superis gratus, ut ante fuit.
Indicio uli, Rrgum sanctissimc, qui te
Arocut, iuvisoft suspicor esse Deo.**
It appears by a proclamation of the i5ik
of March, and 14 Jam. 1, that the kimof
England would not permit anv resort toUiea
for these miraculous cures in tne summer time.
By another proclamation of the ]8lh «f
June 1626, it is ordered, «* that no one shiH
apply for this purpose, who does not brinff a
proper certificate that he was never tounei
before. This regulation undoubtedly mart
ha\ e arisen from some supposed patients, who
had attempted to receive the bit of gold wan
than onc^.*' Observations on Statatmn Gloa-
cestrise, 6 Edw. 1, a. d. 19f 8.
In the Book of Common Prayer, &e. nriited
at Oxiord in 1719, isiosnlea thelblkwar
Service, to be osed as it seems when thei^
touch was applied for the cars oftke T '
1061]
and othertfjbr High Treason.
A. D. tG86.
[1062
f
jaslies armie anil farces, and did continewe in
opeUf av{>wcd and Jesperatt reWIJiooe a^inst
hi& muj^ueaod his autijoritie* UDtill iliey uerc
delicate att ^ yjiciri tbe »-^^— if«y off
July lastf aiiil the saiil bite duke taken pri^
•oner, attainted Uj tlje ICng^lisb parlianiciit for
the said rebellion* and executed at Towtrliill
mmn the day of , 16B5 y^ars ;
IfVherihrowe thesuid Jntue^ j^ot, laiti-'duke olf
BuL-kl«'it^1i aod IVIoriiiiouth, halLi CDmitted and
m y^iiilty ufF tht^ ci ymes abu ve Tttentiancd, ane
or otiier of ihena, and \» artor airt and part off
the Siimen« whicli ht'tn^ found l>e ane fn^sy^e^
the deceast duke of ltuckleU|Efh t»uglit to Im
fbrfauhed in his larids^ heretigei, titics, ofHc^'Sf
goods and ^ar wliauotiicver, and in his name,
mme, memory and honours, to tbe terror off
* At the UealLiMg,
* Prercnt us, O Lord, in all our doing's, with
* thy most yiMcirnis favor, and further us vvitli
' iby continual help, tbat in alt our ^rorks
* lie<(uii, continued, and ended in ihce, we may
* gloriHe thy holy name, aud finally by thy
* mercy obiain ererlasitn^ life, thmug^h Jesus
* Christ our Lord. Amtu.
* Tbe iJniy GosjilI Is written in tbe 16tk
* chapter of saint Mark, beginning" at tbe 14 th
■ verse : Jesus appeart'd imio I be eleven as they
4 sat at meatf and upbraided them with their
* unbehef and hardness of heart, because ihey
* bchered not tbem whidi bad seen him after
* he was risen. Anil he said unto thcm^ Go
* ye into all I bo world and pioach the gos(iel to
* every creature. He tfiat belicTetli nod is
* baptized » sbsiH be ijuvctl ; hut be tymt be-
* Jievetb not, shall he d.imncd. And these
•- sigfuj) i^ball follow them ibat believe; In my
* naniii they i^hall ca^st out devils, they shall
< SfM?ak wii*h new long^ues, they shall iake up
* serpents, and if tbey drink any deadly thing
* it shall not hurt them ; (** they £hall lay their
« hands on the sitkj ami they sbaM recover/')
* 8o then after the Lord bad spoken unto them,
* he was receivud up into heaven, and lat on
* the right band of God. And they went forth
* and preached every where, tbe Lord workjn*,^
* with them, and confirming tbe word with
* Signs folltiwinjj.
* Lord, have mercy upon us.
* Christ, haTC mercy u|Kin us*
* Lord, have mercy upon ua.
* Let us pray.
* Our Father wbicb art in heaven,* iScc.
* [Then shall ibc infii-m peraons, one by one,
4 he presented to the kin^ ujmn tbetr knees, and
* ikB etery one is presented, and while the king
^ is laying hin hauils upon them, and putting
* the gold alwut tbeir necks, tbe chaplain that
' ofH dates » turning himself to (us majesty,
* shall say these words following ;]
^ * God give a bteasiug to thin work, and grant
* that t/usc sick peTiont on whom the king
* Jays his bauds, may reco? er, tbrough Jesus
« Christ our JUrd.
others to commtit tbe lyke in t^'me coining.
Which criminall action ane cause being for-
aierlie calle*! ujjon the said twentic first of De-
cember last, tbe executiones were verified, und
ibe defcndcrf being oft tymes called and not
compeiraud, The lords for sererall eaubes
moveing tbetii continued the same criminal I
actiooe and cau'^e from tyme to tym^ till this
day, and the sameu heing'tbis day called, Hit
Iklajesties Ad vocal produced a letter from the
dutches ofl' Buckleugh to his lordship, uberoff
tbe tenor follows :
hTTTtttfrom the Dutches ff Buccleogii.
* My Lord, Tbcr being a process oflT for-
* fautture raised at your instance for bis ma*
* jestie9 interest against my bte husband tbe
* [ AAer all have been presented, the ch»idalu
shall say,]
* Vers, O Lord, save thy ser rants.
* Hcsp. Who put their trust in tbec.*
' Vrn, Send them help from thy holy
place.
* Resp, And evermore mightily defend ibem,
' Vers, Help us, <> God gf our salvation.
* Jlesp. And for tbe glory of ihy nan^e, de-
liver us, and be merciful uuto us sixiuers, for
tby name's sake.
* Vert. O Lord, bear our pray era,
* Resp, And let our cry come unto Uiee.
* Let us pray.
* O Almigbtv God, who art tbe giver of all
' heaUh, and tne aid of tbem tbat seek to thee
* ilir succour, we call upon thee for thy help
' and goodness mercifully to be shewed upon
* these thy scrrants, tbat tbey being healed r»f
* their infirmities, may give thanks unto thee
* ID thy holy church, through Jesus Christ
^ our Liird. Amen.
* [Then tbe Chaplain, standing with his face
* towards tbctu that conte to be he^iled,
* shall say:]
* The Almighty Ijord, who is a most si mag
*■ tower to all thsui I hat put their trust in bim,
* lo whom all things m heaven, in earth, and
* uniltT the earth, do how and obey, be uow,
* and evermore your defence, and make you
* know and feel, tbat there is none other name
' under heaven given ti> man, in wbom» and
* through whom you may receive health and
* salvation, but only the name of our L^rd
* Jesus Christ. Amen.
* The grace of our Lord Jesus Christ, and
* the love of God, and tJie fellowship of the
* Holy Ghost, be with u>j all evermore. Amen.'
Though this Service was thus retained in e
Prayer Itook printed in the 5th or 6tli year of
tbeVeigf of king Genrge tbe First, it is said
that f^uecn Aime v^as tbe last sovereign who
toucbeil for tbe cure of the Evih
* These Answers are to be mack by thea^
tbat cocas to be healed.
1063]
2 JAMES II. Proceedings against the Duke ofMomnotdk^ [MM
' duke of Monmouth, io which his aires or re-
< preteDtatJTes ar or ar to be cited for ther iu-
* terests, and his majestie haveioff been gra-
* ciouslie pleased to send the rignt honorable
* the earl of Murray, with his gracious offer to
* leave it to my choice whither my children and
* I alkali goe down tliither to answer personallie,
* or will appoynt a procurator or i^rocurators to
* )irr>pose what they or 1 have to say or offin*
* ui our legall defence, 1 doe now (m a dew
* aensc off his majesties grace and favour) no-
* minat ami appoynt sir John Lauder, Mr.
* Thomas Learmont, and Mr. James Graham,
* Advocats, or any off them, to beprocouratoror
* procoiirat(irs for my children and me, to ap-
* pear and propose whatsomever is fitt and
* proper to be offred for them and me in the
* proces aforsaid, which I doe heirby declaire
Mo be as valid and sufficient as iff tney and I
' wer personallie present at the tryall. In tea-
* tiinony wlieroff, I have signed and sealled
' these presents at Westminster, the 16th day
* off January, 1686, according to the Soots
* style, before these witnesses, sir Andrew For-
* re'ster kni^rht, and David Nairne, our servitor
* wreitttr heiroff.* "
Sic Suhscribifur, Anna Buckleugh.*
A. Forn^ster, Witness,
David NairnCf Witness.
8ir John Lauder compeirand in presence
off the court, and Mr. James Graliame, and
the letter above recordit beiu£^ intimate unto
them, his majestic's advocat declared that he
allowptl them to compear for Anna dutches of
Burldeugh and James and Henry boots, her
children, pairties called, and to propone such
defeneesi as were competent against the lybell,
and that ritlier be vertue off a commissione or
without a coinmiifsinne, or the commission's
boini^ rworilit. To which the}' answered, that
they %^''-.il(l propone nothing in tiie process
iinl«^s ih" roniniissione {>iaiite4l be the dutches
off liiiccltuj;li to ihrni were road and recoi-dit,f
* 1;|> >n the maniagc of Monmouth with the
counte^M if Huocleu&:h, he Mas created duke
and she was; created duchess of Buccleugh,
&c. ill Scotland, by letters patent, April 20,
1663. (/oIUds. Heataon.
f See Fountain hall's account in the note at
the be<;;[ii:ning of this Case.
Sir John Lauder (lord Fountainhall) and
Mr. Jauie^ Graham, to«^ether with the other
advocates for the earl of Aigyle. had incurred
the displeasure of the court by their exertions
on behalf of the earl, and measures were taken
for the purpose either of punishing them or at
least of intimidating them by the apprehension
of punishment ; FounUiiuhall gives tiie follow-
ing account of them :
" JJect mbcr 15, 1681 . The Privy Council,
to strike terror in any who complained of the
injustice of A rj^y IPs' interlocutor, and to pre-
serve Strathurd, Forret and Newton from op-
Iiruhrium in voting the explanation treasona-
de, Collington having bow * bod liquet,' Iltr-
and dechured tbej hade no
ill this cause.
His MajeUie*$ Aivoemi took
a|K>n the advocatei beiog preMnt
cous voting It was not treason, on
berry Justice-Geoeral conoealiii^ bb vote, ia
regard it was carried affirmatiTely ere it eun
to him, the oounoil named a Comaunea la cril
my lord Arcfyll's eight advoealeo, ns. nr
George Loddbart, sir John Dalryi^ple, Mc»>
sieurs Walter Pringte, David TfauMn, mieb
Home, John Stewart, Jamca GrahaM, mk
myself, for aofaacribiiig onr opinion, that kii
explanation oontained notliing treaaanabia iaiL
We were ezamioed, but not upon oath ; aad it
was called a new piactice to sign o|Hnioas vilh
ii9> especially in criminal caaes importiiig tret-
son, and a bad preparative ; though lawjen
should not be prelimited nor over-awed fitdj
to plead in defence of their clients; thcpmj;
council having authorised us to thai pafiMC,
— Though some aimed at imprisoning, and de-
priving us, yet after we bad spoke with Ui
royal nighness, he was pleased to pav il,
though he said if any bad use were made of ar
signal opinion, bv spreading it ahraad io E^-
land to incense 'tnem, or reproach the dnktn
the judges, he could not but blame us. It an
afterwards printed iu England, and Amlfi
trial, with another piece called, ASoolpMiit
to wet an Engliahman to the sldn ; beiog na-
dry Animadversions on Argyll's Procew?*
Kespectinff the conviction of Aigyle, Fms-
tainhail, under date December IS aad %
1681, writes :
'* There was a great ont-ery against the
criminal judges theur timoroua disboaeaj.
The marquis of Montrose was chanceUor oi
his assize. Sir George Lockhart caOed it
lucrative treason, to the advantage of Cburrk
and State ; and admired how a man couM be
condemned as a traitor, for saying he will en-
deavour all amendments be cau to the adtia-
ta(r« of church and state; For this is not M
conspire * in necem et perniciem rdpubficsr.'^
But the treason was al (edged to lie in this, tbil
his explanation did not bear that he sbouM ca-
deavour alterations to the better with bis na*
jesty's consent ; but without any regard wb»-
ther his majesty* dis-assenteil nor not, he ouA
himself sole judge what alterations were ad-
vantageous, and of the lawfulness of the msaa^
and endeavours to alter, which resembled tw
much the words and meaning of tlie tresdivt-
ous solemn league and covenant. t2do. These
words, *' any alteration," are indelinile, as^
enuipolent to the universal, <* all alterationsi"
(this is so sophistical,) without so much ssex*
cepting the monarchy and fundamentals sftba
government. 3d, These words ' coosklesl
' with my loyalty,* were judged Uzative sad
restrictive, seeing his loyalty might be fir
below the standani of troe loyahy, nst ^^
|ienny tine, much less eleven-peony. Wbsl-
ever ambiguity might be in the woiii jfsliwa
cd, (the direst paper in the twnjiif li
t 111: I < M • I
The torti AberJuiir.
I Sir UilliAjii Unirumond, off IlMhornden.
lamttS^tinjt'nniil, off Drum.
fh il*oy,off thai ilk,
]N* t ^es, uff Meri:h}'stouup.
Sir PdUrick Murray, off Doucljar.
Tlie Assysc lawfuUie swome, no otijeetion of
tJi# taw in the coi^trare.
ITiii Majeftkt Adrocat forprobition eildaced
the witnesisicti after d<?poiiin(r, i)iey are to lay
capiaiQc Bruce and captaiut Huyse.
His Mitje$iit$ Adpoeai repeated and pro-
do<!«d iho retiuftsitine to the ftaid >vitr1ri»sPR
under the quarter seal I for ther beiu^ itiffai^etl
i u the rebeUion with the ^oid late <luke of Mono-
moutbf vfhmvhy Ihey ir reudrrrd habile wit*
iMiset, And fnt of all imitretMonei.
ikm made to infer treapfm if tortured/) or in-
eoasidcfAieOtai in this rxidannlian^ yet all wero
M\y coontKsdd, that in aucb i^^setTorie ought
to M allowed to int4?r|iret his own uonis, which
ilrinrll did fcsry ncatlv* iti a speech to the
lei9«, and alto modcatly rqireooited his great
■ttlVmii|ifi and tef? ieet for hi« mi^esty : And
that Ihriu^li they dea/^rvcd iomo lesser pii-
aishmmit, yet it waxcittletf a diibolieal alchemy
to Msrew them to treaiMon. — But de8j*entioti
ftiM«thia time hs# made him iihipwreck hit
kiyally and all« so that no mote charity can be
bestowed upon htv explanation. The dt-ftij^m
WW to low him, that he miiflit a«viir be the
liMd of a proti'^tani party, Hud to annei his
miltdicllon to the crown, and to parcel out hi a
liiMlisi ami though he was unworthily and un-
dealt with nere, yet ho ougl^t to ohserrr
'a aerret hand pnni»hinG^ him fnr hix
to hi« own and hui nither*!! creditoi^
traaaala, atnidry of whom wsre Moiriftg;.*'
4
10693 ««^ others, f(/r High Treason.
pearih^, and that they had no defence to pro-
pone in this cause nor against the lybell.
Ills Miijciiic^s Adv&eat decbirefi he restricts
thf ' >iinst the late duke of Buck leui^h
«iM. utb to hi^ invftdiiiGf thf kini^fiome
olf Ku^Utid, and other fiub«(equent acts ly belted.
The Lords Justioe GeneraUf Justice Clerk,
and Commissioners ofl' Justiciary, baving" coo*
stdered the lylMfll perscwod a^iast the fate
diilui off Bticl'ieug'h, with his luajeatyyadro*
cat's restrictione abovc-wreitten, they find the
•onien as its restricted, and each particular act
al' Treason reliTsnt ieparatim to inlVrr the
paiiMi off treasoQt and remitta the samen to the
kiii»wlcdge off an e Assyse.
ASSISA.
The marquis off Dougbs.
le carle off MaYr,
'hcearleoff Hume
lieearle off LanderdaiL
Tfie earle off Callender.
*V\. ! ,,: IV .
,ik.
|iiiichen.
A, D. 1686,
[lOCG
€a|»taine Robtrt Bruce, late captain e in tho
(ti ' ' *■ * uburt^h*is s^ ■ _ * i' ' p
>■■ itVfUnmar
deponn that iu the tetter end of May or be^n-
iug" of June Itisi tlicdeponer melt wiih '^"' ' ^f*>
duke ot Hu<:cleui;li, in the citiiiof Aui
in Holland, and that same d^v Uic j , i
went aboard of a small shipp with the Kaid lata
duke and utbersto company, und tberaAer went
aboard of the fri^ci un(f landod at Lyioe in
England^ and therat\cr went to TantonriCjtbrit
ships landed with Munmouth at Lyme, with
mf o and arines« arid wlien he went to'Tantoune^
he beard him proclaimed kinjc', and he $aw him
assume the title of ktngf, and receive fronr the
people the aoclntnution^i oi' * God save the
♦ King[,- and saw him tvitch a boy for the king^'s
evill ; and siawc the. said dake command the
annes ol the rebells a^aintt his iniije«tit^
forces, find the deponent knowes that the said
duke did sometym pa v the souldttm whu wer in
rebcllioiic witli liim, and sawehim head a great
many ei' retvells, and under his conduct and
r^ommand, tfiey did invnide and fei^ht his ma*
jesties forces, dt-^ions he savA the said Iste duke
of Buccleug-h and Munmonih admit people to
kiss his hands as kin^ upon the kuee : cataa
teicnim, he was present, and saw uiid heard
what be has deponed ; and this the Iremb I
he shall answer to God.
Sk SubicriifUurf Horert Baucc,
LtNLrrHoow, I P, D,
Hia Maiesties Adirocat, adduces *?antaine
Anthony Buyse, anotliLT \vitne!ts^, and thouj^li
he now can Kpeiik Eii^'ltiitii he adduvt'S Koberi
i^mdiland^, merchant, in Edmhur£rti, \k\m was
s^vorne interpreter to what he should not pro*
perlie express,
Captaine Anthony Buy Mr, latlie capt*>fn#
in the duke of Brand en burgh's nervicc, a^ed
threttie years or therhy, uoraarritHl, p«ir>fL'd of j
inaticc, prejudice, hatr«til» ilUwitl, or nurtiall
counsell, scdcionlie swome, d«*pim!i tliut in
the k'tier end of May or he^finin^; of June ta«t»
h rv Ml the fri4ffiet witli the lute duke of
J 1 and Munnmouth, (Vom Holland to
i..,^. .,».,., And landed at Lym, and that ther
wer three ships cnm aloniVst with him, with |
men And arm«; dcfiuuf from Lym, the duke
and thox that wer «ith him %*enttn Tantoune,
wher hv heanl him proclaimed kiu^, and that
the neopte called him hismajeaiie, and saw him
tutch a lioy tor adivease, wnieh htjunderitnndi*]
sine« they' call the kiiij^N rtill; d<*jHm« hesair ]
the people kisH his hnn<l8 as king; when he was on ^
hoiKf b;ick, and on ther knees, mid that he buw
the Ttnid late duke rommand the annie of the
reh»'tt .
f
and iiiai
r^belli* ihe
htm«eTfav
he wot V-
alter the
u^v trim liJii** dukr-
iv thev fuitc-ht ?'
> or therby, and that '
vhenhehade monie,1
ey Iu
dcfeate ]
this
I067J
S JAMES n. Proeetdingi against the Duke qfMmummih^ [lOSS
.4C COUNT OF Tnc EXECTTION or thi
DUKE OF 3ION3IOLTH. ox Wedxei.
DiT, THE 15th or JrLT, 1685, os Town*
Hill.
at ht shall antirer to God. His depositioo
wascmmitU'il U* the dcp^mcnt in Engliab, faav-
iog DOW leanwd tfifc lanj^uace.
Sic Sub*eribttur^ ArroKi ButAe,
RoBCBT SiHDfLAiik'Ds, f Dtcrpreier.
Linlithgow, f . P. D.
His Majesties Advocat protested for ane
Avtyne of Krror.* After leading and adducing
of the wbilk protMUione, the penoos of Assjse
ab(»fe naine'l, removed ahozether forth of the
coart to the Assy se bouse, wher having resooed
and voted the points and articles of ue lybell,
interloqiiitiir and witnesses depo&itions above
written taken in tlier presence, and being
tlierwith well and rvplie, advysed, they re-
enter nifainein court,' return ther verdict in pre-
senfte of the sajds lordn, wherof, the tenor fol-
lotves: The Assysealt in one voice, be the
month of tlie earle of Lauderdale, tlier chan-
cel lor, finds the deceibt J amcs 8oott, somety nae
duke of Buccleugh and Monoioutli, guilty
and culpable of the treasonflJ>leinvaidingof the
kingdomc of £iiglaud in the moneth of June
last, with shippa ukI armes, and of bis treap
sonaUe assumeiiig tlie title of king, act-
ing and behaving as king, comnDandin^
the armie of rebells and feighting against hia
majesties forces in manner Ivbelled : in re-
spect thev find the samen sumdentlie proven.
Sic Subteribitur^ Lauderdaill, Chancellor.
After oppening and reading of tlie whilk
verdict of assyse, the Lords Justice Ge-
nerall. Justice Clerk and Commissioners of
Justiciary haveing considered the said ver-
dict of assvse, thej therfor, be the mouth
of John Leslie dempster of court, decern-
ed and adjudf^ed the said James Scott, late
duki! ofBuccleugh and Munmouth, now de-
rrist, his name, fame, memorie and honours
to 1)0 extinct, liis blood to lie tainted, and his
amis to be rivven furth and delate out of the
b<K>k of arms, sua that his postcritic may never
hare place nor be able hcirafter to bruike or
Joysc uiiy lands, lordships, titles, dignities of-
liri'Ji, iirivilrges, goijrl^ or geir uhat^juiever,
movrMlilo or immoveable, within tliis realm,
ill tvin roincini;, and to have forfault amitted | nour. I will name her; the lady Heorictia
and tiiit all and sundrie lands, lordships, titles : Wcntworth. 1 declare that she is a very fir-
dignities, oflices, privileges, goods or geirtuous and godly woman. 1 have committed do
wliats(»mcver, moveable or immoveable, per- sin with her, and that which hath passed be-
t.'iiiM'ini; (o the said dctceist duke ofBuccleugh twizt us, was very houest and innocent in the
and Miumiouth, to our sovcraigti lord, to re- sight of God.
niainr pr r^)elually with his majestic and his ' Assistants, In your opinion perhaps. Sir, tt
' "'" »^ I you have been oilen told ' - —
The late duke of Monmoudi cameffoiDtbt
Tower to the scaflbid, attended by the biahsp
of Ely, the bishop ef Bath and ^?eIK Dr- Te-
nison,, and Dr. Hooper ; which four the kiag
was graciously plfaird to send him, as hb as-
sistants to prepare him for death, and the doke
hinoself intreated all foor of them to aooompnj
him' to the place of execution, and oootiMB
with him to the last. The two bishops goi^
in the heutenant*s coach with him to the ban,
made seasonable and devont applications to boi
a!I tlie way ; and one of them desirpd him bqI
to be surprised, if they to the very last, npuo
the scaffold, renewed those exboHations to a
particular repentance, which they had saoAea
repeated before.
At his first coming upon the scafibU, be
looked for the executioner, and seeing bin,
said. Is this the man to do the business ? Do
your work well.
Then the late duke of Ulunmouth begaa to
speak, some one or other of the •—'**»*«■*«,
during the whole time, applying themseiret
to him.
Monmouth. I shall say but very little ; I eioe
to die ; I die a Protestant of the Church of
Engkmd.
Assislanii. My lord, if you bft of the Choick
of England, you mo&t acknowledge the doc-
trine of Non- Resistance to be true.
Moiunouth. If I acknowledge thedoctrioeof
the Church of England in general, that io-
eludes all.
Assistants, Sir, It is fit to own that doctfiie
particularly, with respect to your case. [Here
ne was much urgM about the doctrine of oon
resistance, but he repeated in effect hisfint
answer. Then he began, as if he was about to
make a premeditated s|>ccch, in this manner.]
Monmouth. I have.had a scandal raised otfoo
me about a woman, a lady of virtue, and bo-
succossors m propiicrlic. Which was pronunc-
ed for doom, and whereupon his majesties ad-
vorat asked and tooke instruments.
N. B. Sir James Dairy mple of Stair is con-
tinued from time to time till the 28 March
IG<{7, when a Ilcmission in Latin ibr him is
recorded.
* (.'•MiccTiiing the Assyse of Error, See p.
tiof this Volume.
you have been oilen told (i. e.' in the Tower)*
but this is not fit discourse in this pUce.
Mr. Sheriff Goilin. Sir, were you ever intr-
ried to her ?
Monmouth. This is not a time to answer that
question.
Mr. Sheriff Goslin. Sir, I hoped to ban
heard of your repentance for the trewon vbA
bkKMlshed which hatli been committed.
Monmouth, I die very jienitent.
Assistants. My lord, it is fit to be nvtiddar;
and ooniideriog the public evil yon We to**
mnd others fjvr High TreoiQn
A.D. 1686.
[1070
In da 81 moch good now as possibly
y a public acknowl«f(J;<;nienl.
H. VVhat I have ihoo^rht fu ti* sny
aBnii*^, is in a paper wliidi t have
refer to my papfr.
U. My lunJt lUcrc Ih iiotlilofj in llmt
U rfiwfiirter, and you oujjbt to t*e
in your repetituncc, and to liurc it
hIlhI. God give you true repetituucr.
tth. I die very [wnitcut, and die witli
hrfnlneas, for I know I sbtilt go to
is. My lord, you ni«*>l go to Ood in
^ay : Si I*, lie wire you be truly peoi-
osk forjTivcness of God (or* tUe
have wronged,
\ih. 1 am tKirry for cYcry one I bave
1 forgive every body : I' have had
Dies, i forgive tbcio alt.
fi, 8tr, your acknowledgrticnt ought
c and particular.
\th* 1 aro lo die; pray, my lord
if to my paper.
t. They arc but a few words that
: U'e only dcfcire an answer to this
ith, I cau ble^ God that he hath
ie so much grace, that for tbese two
ai paM 1 bave led a hfe unlike to my
Mixrse, and in which I have been
mts. Sir, was there no ill in these two
B these yeai-s, these great evils have
Wt and the giviuof public SBtisfactJon is
irypartof repentance; be pleased to
italion of your rebellion.
th, I beg your lordship that you
^^1 nay paper.
f*. IVly lord, as I said liefore* there
in your paper about the doctrine of
ice.
L I repent of nU things that a true
igfat to repent of : J am to die, pray,
t. Then, my Lord, we can only
you to the mercy df God ; but we
f with that di^rlulness and en-
it as we should, if you had made a
:knowledgment,
lih. Goil be praised, I have en-
Dt enough in myself: I die with a
nence ; 1 bave wronged no maiu
t. How Sir I No man ! Have you
ilty of iftvaskin, and of much blood,
been shed, and it may be of the loss
Ilia wha followed you ? You most
wrcmfftd a gr^sil many.
Ih* 1 do, 8ir, own that* and am sorry
'i. Give it the true name^ 8ir, and
lion.
iWhnl - ^ v,^ase, 8ir, I
•dii'L anil for the
betu ^,,^v,, uiMi nH t!»e souls
' bi^n lost by my racan*i ; I am
J*p*Tjed (which he «ipuke softly.)
r*tn4rpit rfs coins ibst slooa
at a distance) He says he is fcrj torry for in-
vading the kingdom.
AnutanU. VVc bave nothing to add, but t«
renew tlic freiinrnt txlinrtation^ we have made
to you, to give some &.tiU:vfaction for the public
injuries to the kingdom: there have been a
f^real mnny hvcs lost by tbis resistance of your
auful prince.
Mmttfivuth, What 1 have done has been very
ill, and [ wish with all my heart ji bad never
been; I never was a man tbat delight(|^l io .
blood ; I was very far from it ; 1 was as
cautious in Ibat as any man was ; the Almighty
knows how I dow dte^ with all tho joyfulness
iu the world*
Aui^tanit. God grant you may, Sir; God
give you true repentance.
Jilunmouth. If I had not true repeotanoe, I
should not so easily have been without the fear
of dying, I shall die like a lamb.
Assistants. Much iqay come from natural
ootirage.
Monmouih, I do not attribute it to my own
nature, for I am fearful, as other men are ;
hut i have uow no fear, as you may see by mf
face; but there is something withm me whicli
does it, for I am sure I shall go to God.
Asiistants, My lord,, be sure apon good
pprounds; do you repent you of all your sins,
known or unknown, confesseil or not conlessed^
of all the sins whTch might proceed ti'om error
iu judgment?
Monmouth, Iq general for all. I do with all
my souL
Aisi$tants, God Almighty of his infinite
mercy forgive you. Here arv great numbers
of f^fiectators ; here are tbe sheriffs., tbey re-
present the great city, and in speakiug to them
you speak to tbe whole city ; make somesatis-
fiietiou by owning your crime before them.
He was silent here.
Then all went to solemn commendatory
prayers, which continned for a good ^pace;
the late duke of Monmouih and the company
kneehng, aud joining in them with great icr-
vency.
Prayers being ended, before he and the fonr
who Bssiiited him, were risen from their knees,
be was again earnestly exhorted to a true and
thorough rep«intance.
M\q\- \{w\ were risen up, he was exhorted
to pray for the kiug ; and was asked whetbor
be ditf not desire to send some dutiful meaooga
to bis majesty, and to recommend bis wife and
cblldreu to bis majesty's favour.
Monmouth, What harm have tb«y done?
l>o it if you please ; I pray for him aud for all
men.
AnutimU. Then the versieles were repealed.
O Loi-d, shew thy mercy upon us !
MonrnQHth. rHe made the response) And
grant us thy wlvation.
Auiitanti, (It followed} O Lord sare the
kiQ|f.
Monmouth, And mercifully bear us%»b«i
we call upon ihce.
Amti^ntt Wit, do you oot pray for tbt k««f
1071]
2 JAMES
Proceedings dgainsi the Duke of Monmouth^ [I07f
I
vt\i\% U9 P (The verside was again repe&Ct<1.)
O liOrd save the king- \
Moftftiouth. (Alter some pauae he answered)
TheD he spake to the ejcet^ationer coaceminj^
hts undressiug'f &c. and he would hare no cap,
Ace And at thi^ beginnmg^ of his undreaaog,
it was said to bim in this nicuiner : *
AarMunts, My Lord, you have be«n bred a
aoliher, yoi\^would do a genaroua Christian
thing, if you pkase to ^o to the rail, and speak
to the soldiers, and say, that here you stand a
8«d example of rebellion, and intreat tbciu
and tbe people to be loyal and obedient to the
kinjf.
Monmcuih. I bare said I will make no
apeechea. I will make no speeches. I coioe
tddie.
Assist anii. My Lord, ten words would be
Then calling his senrant, and gi^in^ him
•omethlngf like a toolh-pick case, " here," (said
be) ** give this to tbe persicn to whom you are
to deliver tbe other thinifs/^
Momnouth. (Tr» the executioner) Uet^ are
tix ^ineas for you j pray do your businesi
well; do nol serve rue as you did my lord
Ruiael i 1 have heard you struck him three or
four times.
*♦ Here" (To bis serrant) "take tlieae re-
Tnaining gntneaa, and give them to hiin if he
does his work welL"
Eiecutioner. 1 hope I shall.
Monmouth. If you strike roe twice, 1 cannot
promise* you not to stir.
Durin'^ his undres&inf? and standing towards
the block, there were used, by those who ajs-
M»te<d hiiu, divers ejaciilations proper at lliat
time, and much of the 3 l!»i psalm v^as re[M^al4*d,
and particularly, Deliver me from blooii-guitti-
IS, O God ! Thou God, ike.
* Mi. Fox baa exhibited, in a simple and
affecting Narrative, this account of the last
leene of Monmouth's Ul'e. Aud he obterv^,
** that tbe manner in which tbe import unities
of tbe divines on tbe one hand, and ttic answers
of the sufferer on the other, were re{»eated
over and over again, could not be heheved, if
the facts were not attested by t\he si;^iature of
the penioas pnncipatly com^erned.'^ As to
ti^ ioiportunities on the subject of non-reaist*
ance» witli which lord Rusael was assailed in
tlie last moments of bii bfe, see vol. 9 of this
Collection, p. 811. 818. See there also, the
diflerent conduct pursued by Cbarteris the
Hivine, who attended Argyle^ previously to bis
executioo. 8ee too in vol. 8, p< 1016, in a note
to lord Angittey's oai>e^ biahop I^lorley*s pre-
diction as to ttwp praetitse of the church of
England respecting non-resiataDce, It should
be mentioned, lioiverer, that Keun and Turuer,
who atlemled Monmouih* though two of the
seven btslHJpa whom k«ii'- J iim v imprisoned
in tlie Tower, wAlivri if their
hJahopricka, in oontequ* r^rfusal to
^« the Mtlift t» king WiiUaiu iui4 quten
Then be lav down, and soon afti^ he raised
himself upon hit elbow, and said to th« Ek-
cuiioner, Prithee let me l«ci the ax ; he fdl
the edge, and saidi 1 fear it ia tiot iharii
enough.
ETCcutioner, It ia sharp enough, and h^atir
enough.
Then he lay down again*
During this space, many pious *
were used, by thosa tiho asttisied I
great fervency. Ex* gr. *• God a>
* repentance, God accept your i :
* God accept your imperlf^l repentiuicc ; Wj
* lord, Goci accept your general repeauuiiT;
* God Almighty shew his ooifiipcitcnt uiurcy
* upon you ; leather, into thy hands weccMo*
' m€»nd his spirit, ^c. Lord Jesus receive bis
* soul/
Then the Execntioner proceeded to do bti
office.
This is a true account, witneai our hamli.
(Signed,) Francis Elv,
Tito MAS Bath and W&UJ,
THOMas TsNiaoir,
Geq* Hoopca,
Wm.Goslin, >s,,^ifi^
PETEU \ ANDEPUT, I
A Copy ok thb PAPER, to wmrn t«i iati
DcKE OF MoNMouTit REfEwatn maifiUi •
THE DtscoimsEs ite hkld i3pqh trx Sctf-
FOLD,
^ 1 declare, that the title of king wasfoiCfd
* upon mc, and that it wo very much oootivf j
* to my opinion when I was proclaMneA: m
* the satisfaction of the worlJ, I do
* that the late king told me, he was
* mamed to my mother. Having
* tliis, I hope that the king, who is now, williK*
* let my children suffer on this ticconnt. Aifd
* to this I put my hand this ii ^
* July, 1685. (Signed)
DecUred by himaclf, and signed in tbe fit-
scnca of tAa :
Francis Elt,
TuoMAS Bath and MftUMt
Tuoma;^ TEHtftOHi
Geukge HoopEft*
A Cot'Y OP THE Duke of ]VT : t mTTO'S
LETTER TO tub KIN* mi^
HlKQWOOD, TU£ 8Ttl or JvLT, 1665.
«* Sir ;
<' Your majesty may think it b Ibi vil'
fortune I now lie under, makoa mo nikltivi*
uiipticatiou to you ; but 1 do asauro your nw
jesty it ia the r«tD(H-«e I now h»vo in no of t^
Mary* See to**
siatance, tbe <
1709, and Mr. I;
W theOldVlbiga.
ft« tx* tb« doetrint of hook-
r Saohofofttt^ A. 1^
'<l»[icat fiom iIm Tit^
5]
and others^ for High Treason.
Strong I tiave done you in several things, nud
iw, iu takiug^ u|i2)rMks agninst yoo. Ft^r iny
Inking up arraes^it ncrer \*tis uj my ihougbiJi
■ince Ihe king' dieit. The nnace aud jiriui-ess
of Oru litre wiK be wit a ess lor ine, of the as-
tsuvance 1 gave ihem, lliat 1 ivould uevt-r stir
agabisi yoy ; but my misluinufie was stictu as
to lueet with some liorrid people, ihiil mude
'tne believe ihingi*of your miyesty, aod gal'e
me sa many lalj^e arguments, that I uas
fwlly l^d away to believe that it was a
«baiiie atitl a sin t^efhre God, not to du it.
•But, 8ii\ I will not Uiiuye your majesty at
pre^nt wiih many ihinprs, I euuld say forltiy*
selff (bat I nm sure would move your eompas^
-«tiD ; the i^hiefend of this letter beitif ouly to
lifeg of vou* that t may have Unit happncas m
to sjieolc to your majt !4ty : For 1 have that to
Mj to you, 8ir, that 1 hope uiay give you a
lopg- and happy rtigu*. I nm sure, Sir,
;;wheQ you hear rue, you w ill be ci>tivtnced of
»th^ zeml \ have for your pre«erration, and how
lieartily J repent of what 1 have done. 1 can
'•ay no more in your majesly now, being tbia
.leiter must be seen by those that keep me ;
'therefore, Sir, L &ha!t tiiake an end, in begging:
of your majesty to believe ao well of me, that
il >*ould imhpr die a thousand deaths, than ex-
cuse any thing I have done, if \ really did not
think myself the most in the w ron^ that ever
•ny man was, nod had not, from the bottom of
JBjp heart, an abhorrence \ot ihoie that put me
4lpon it, and for the action itself 1 hope. Sir,
God Aluiiiiliiy uiM strike your heart with
-mercy and compa'^*»ifjn for me, as he has done
'mine with the abboii'ence of what i have
* done. Therefore 1 hope, Sir, 1 may live to
ibew you how zealous 1 Khah ever Vm for your
■ervice, amleouhl I say hut one word in this
letter, you ivould be conviDCfd of it ; hut it is
of that consequence that I itare not do it.
Theretbre, Sir, I do beg^ of you, once more to
let me speak to you, tor then you vvill be con-
vinced how mneh I Hhall ever be. Your ma-
jetty *i most liu[uble and dutiful, Monmovth."
£The following' Letter from Lteyd, bishop of Si,
Asaph, to Feb bistiop ot 07;lbrd, contains an
Account of the Kxifcutjon and last beha^
Hour of the duke of Monmouth. U is taken
from Heminfbnrs History of the first three
Edwards, eihird by Uearn,vol, i,p. 177, Ap-
pendix. 1 here insert it because it contains
apassjLgfe stating, as Mr. Rose has noticetJ on
the aulnoriiy uf the hisbttp of Ely, the duke's
, acknow lefli^emcDt on the scatTold of the na-
, ture of his intercourse with latly Harriet
Wenlworth, in terms more direct than bos
ADy where else been met with, but as that
wa5 probably, a^ Mr. Hose has ol»served, ra-
, Iher A construction of what tlie bishop of
£ly communicated, thau what he actually
* As to itiis see Fox ami Dfdry luple, par*
iicttittrly the tbrcoer*
vau XL
A. D. 1686. [1074
said, ii certainly not to be so much relied op
as the declaration of the same biUiop and
others ot wbai passed in the dvike's last mo^
mentfi attested undrr ihe liQiids of ail itio
parties and published by authority;]
** My Lord j
July 16,ie85,
l:
^^ 1 received your lordship^a letter by the lant
post, with two enclosed, oue to the D. of Or-
mnndt the other to the lord nriry*-seal ; tiotlt
whith letters I delivered to their owne handtf,
antt they promised to answer them.
*' For the king's inaug-uration, I know my
lord of Cant, has made ready :m ofhce to M
used every year the 6th of f'ebruarjs so that
there will need no question eoncermn^ it*
** 1 was this day agt^in at sir St, Foxe*s, to
speak with him, bnt he was not at home, 1 will
try again to morrow.
" 1 told your lord^ihip in my liist, the bis|]0|»
of Ely was appointed by hit majesty to attend
the 1> [uke3 of M [«iumoulh] and to prepare
him to dy the next day. The D. wrote to hi«
majesty representing' how usetull he trtij^ht and^l
wuidd be, if hb majesty w^<iuld be pkatied to
i^runt him his life. But if that mig^ht not be«
he desired a longer time, and lo have nuotlief
Divine ro assist him, Dr. Tenison, or whom
else the k, shotdd appoint. The kiuf^ sint hint
the bisiiop of Bath and VV. to attend, and to
tell hmi he lousl ^y the next morning. The
2 bishops «ate up in his chamber all night, and i
watcht while he slept. In the morning, by hui ]
majesties order, the lords privy 'S«Hle and Dart*
mouih brought him ahM> Dr. Tfoison and Dr.
Hooper. All these were with him till he died*
" They got him toownethe kind's title to tho
crown, and to declare in writiug, that the laii I
king' told him, he was nerer tnarried to hiii
mother, and by word of mouth to acknowledge |
his invasion was sin, but could never get hiin I
to confess it a rebellion. They gt)t him tfi*|
owne that he and lady Harriet W [entwortb]
had lived in all points like man and wife, but i
they could not make him confess it was]
adultery.
" He acknowlcilged, that he and his dutches* ]
were married by the law of the land, and there- ]
fore^ his children mi^ht inherit, if the lu I
pleased. But he did not consider what he did {
w hen he married her. He confest, that he had. ]
lived many years in all sorts of dehauetn'ry, hill J
said he had refieuti d of it, and askt pardon, and /
doubted not that (tod had forgiven him. H#j
said, that since that time, he had an affectjoiil
for lady Herriot, ami prayed, thai if it werel
pleasing to God, it mlj;rht continue ; otherwise^.!
that it tDtght cea!4e, and God heard his prayer} j
the affection did continue, and thereibre hmi
doubted not it was pleasing to God ; and tliall
ihis was a marriage; their choice of one another]
beinsr guided not by lust, but by judgemenl j
upon «iue coo«v]deration. |
** They encieavoiir*Hl to shew him the fals* I
hood and miscliievousnessof this enthusiastical |
pnociple. Bi3l he told them ilwas his opii
and be was fully tutisBed in it. Ai^\
3Z
1075]
2 JAMES II. Procsedingt against the Duie nfMonmouik, [1070
desired tbirm to gi?e him the coDimnnion next
inoriiinff. They told him they could not do it,
ifrhiie be wai in that error and liu. He said
he was sorry for it.
<* The next momiuc^, he told them, he had
prayed; that if he was in an error in that matter,
God would ' conrince him of it ; but God had
not coDTinced him, and therefore lie believed it
was no error.
" When he was upon the scaffold, he profest
himself a protestantof the church of England.
They told him, he could not be so, if he did
not owne the doctrine of the ch. of K. in
that point of* non-resistance; and if he per-
sisted in that enthusiastic persuasion. He said,
be could not help it, but yet he approved the
doctrine of the church m all other things.
He then spOke to the people, in Tindication of
the lady Ilerriot ; saying, she was a woman of
great honour and virtue, a religious ffodly lady
^those were his words). They told him of his
hving in adultery with her. He said, tor these
H years last past he bad not lived in any sin that
he knew of: and that he had never wronged
any person, and that he was sore when he
died to go to God, and therefore he did not fear
death, which (he said) they might see in his
face. Then they prayed for him, and he
kneeled down and jomed with them. Alter all
ibey had a short prayer for the king : at which
he paused, but at last said Amen» He spc^e to
the headsman, to see he did bis business well,
and not use him as he did the lord Russell, to
give him S or 3 strokes : for if he did, he should
jioC he able to ly still without turnins'. Then
Jbe gave the executioner 6 ii^innies, and 4 to one
Marshall a servant of sir T. Armstrong's that
attended him with the king's leave : desiring
Marshall to give them the executioner, if he did
his work well, and not otherwise. He gave
this Marshall overnight his ring and watch ;
and now he gave him his case of pickteeth : all
for lady Herriot. Then he laid himself down ;
and upon the sigue given, the headsman gave
alight stroke, at which he lookt him in the
face ; then he lay'd hirn down again, and the
headsman gave him two stn)kes more, anil then
lay'd down the ax, saying he could not finish
his work ; till being threatened by the sheriff
and others there present, he took up the ax
again, and at two strokes more cut off his
head.
'^ All this is true as to matter of fart, and it
needs no comment to your lordship. T desire
your prayers, and remain. Your lordship's most
iffetiiouaie, W. Asaph.
[3Ir. Rose, in his Ol^ervations on l\Ir. Fox's
Historical AVork, Appendix, N** 8, has piib-
lls»hcd from a Manuscript l^elonging to the
fauiily of Buckleugh the following Account
of the Actions and Rehaviour of the Duke of
Monmouth from the time he was taken to
his execution, which, witli his permission, I
hare insert.]
An Account of the Actiom and Behaviour of
the Duke of Monmouth from the time ke
was taken to his Execution,
London, 16th July KSSiL
<* The Duke of Monmouth, from the time of
his being taken in the West, shewd a wooder-
i'ul concerneiluess to save his life ;- and stock at
nothing that could secure to him the hopes of
dooing it. His majestiewas the first penoa
that he made his application to, by a hnmUt
and submissive letter: the queen dowager, tbat
formerly hade the reputation of being hn
friend, during his disgrace with the late king,
was not forgot : and my lord treasurer was im-
portuned on that same head. Be thought be
would not fail in his request to the kioff, if hs
would be so happy as to be admitted to tbs
honour of seeing him in private; sivingths
king to understand that he has such importam
maters to communicate to his majestie, thirt
should secure his whole natioiis againsl tbt
fears and disturbances of rebellion and sedilioa
ever after: and that by the satisfactkm be
imagines this discovery would give the king bs
doubted not, but in some measare, to desent
pardon upon this ctmsideration. Hewas admitt-
ed to see the kin^ at Mr. Griffin's ; where, at \m
majestie appeanng, he fell down on his knees,
and with much earnestness begged his life, sod
bis mnjestie*s pardon for what he bad dose.
The king told him, of the latest. The sub-
stance in flfenerall of what he had toki hb ma-
jestie, and as yet has come to my knowlete
was: that he was deceived and imposed upoaEjr
a company of rogues and vilans, that flattered
him with tlie hopes and promises of acbieviogof
great matters ; and that if he land once ss
English ground all the nation would appear ftr
him ; that several cities and counties would de*
clare for him at the first report of his bdnf^
ready to head theni: that he had frequent en-
conradgements to undertake that unfortunatt
expedition: that his assumeiug to himself tbt
title of king, ^c causing the same to be pi9*
claimed, was both Hgainst his judgement & in-
clination : liut that it was ane artifice they made
i:sc uf, to make him believe that by so doioe,
all the gentry, as well as the rabble, wooU
come in to him : That Fergnsonc was cbieflr
the person that instigat him to set up hb title
of kinir« <^ had been a main adviser and coo*
triver of the whole affair, as well to the attempt-
ing as acting what was done : that it was Fe^
fifusone that pcnne<l the declaration, ^ puUiihed
it ai'tei*\\ ards, ^; hade the grt^atest share in tke
worst dt'Mgue 6c resolution that was taken : tbat
the designe of invading the nation in tbat mao«
ner he did, was not i'ormcd three weeks or ano
nionCih hefurc it was executed : tliat the sap-
plycs of money came from private bands &
none from puhiick. That one Look, an Ana-
baptist in Holland, hade helped him to atboo-
sand pounds for his own share, & hade pro-
mised to have followed him into fingtsnd ia
6ve days after liis landing there with a nx^
considerable soume of mooej, thai ha i
md olker^f fir lUgh Trtasnn*
A. D. IGfta
[1078
iM bt* '^ilhereil 4niont^t tK^nronsof hi!!
iiaiiitajtce ^: n f II sirtetteil \n the cJe-
;luat it \iRs Uy niiicli iiii|ii)riuiiiiy tif
[lies be \sw^ firevnilcii ti|von to rnki? that
ID. 'lilts is Yvhiit 1 Imi^c Icnnted of
ised iny^eiieral; fiut us to ptirtLcaJar
mil tilings, \ \\L\sv no ti^Ut into,
t nigh I he uas carried uway to the
oml the dui'hess hit§ lady, hnveing-ob-
>iive of liTH tn^ijrsiie tu set.' him, and
\ niy liiv * " " ' J^e by all
r, that no . betwixt
I what wi*^ ini.i.- Ij.^ iHin^iy should
a^f cutuhictiif to him by h\% 1^« 71ic
ir%iew was melrtncholy enough. He
ler, ^ totd h<ir be wa«i *tTy jjlaiie to sc?c
5t of the disrourse that passed after-
3 directed to my h^rd privy seall, iSc
I* iiiiieh whtLi he hud fiiiid to bis ma-
lt ftil>irL;i<tt on the topicks thai might
is itMijf'siie tOBAve bis !ifc; fund«^ing
T, that he hoped he hade ^iteu bis ma*
satisfaction so as tTf>t to despair of pardon.
life would be of service to the king,
ing th« hosome of all the diEa^recietl
in htf^ d<>minioiis, fc therefore capable
tbeir ill de&igos ^ prcveotiDg toerof
lis perBOii or government. The lord
II told him that he bade no order or
from his mojestie to say any thing'
lut to wait on his lady h conduct her
That if he had any thiotir to ^y ^^
1 relation to his atfairs and children, ihot
uld lo!te no time in doings of it : that if
IS n%% willing" he should be present at
le had to ^ny to his lady, be would with-
■iito the ne](t room ; and for his hopes of
in^ thekioj^, he knuw best himself what
ist betwixt them, and what ground he
in hope when he parted from the king.
"^ fing convinced now of the viHauy and
of these met) that set him upon thai
and concurred with him in the
it, was no more then what wti«
haveing dedartni so freipicntly to
king in tbe hearing of so many peri^ns
|f were knave*( cV %illans; that Fersfu-
ia bloody rogue 6e alwayes advised to
Dg of thnmtS) ^ how thould it happen
filioutd snifer himself to be ruled and
upon by them, This was the substance
Lo. discnune^ to which at several
made repivs, that he hade nothtng to
the lady liut what his Lo. might
r : that he wa*i obtidgcd to his Lo,
I^Ht friendship <V kindness he was
\a shew her, ^ut the la^t in particular.
notion of hojiein^ for pardon rtinniog
f in his head as done
* wa« called of what always came in,
frctjuently \\' there were no hojies of
*" ' ; Hint \\i% , , , dL!fire
r king*s reigne happy ^
.: 1 would certainlie happen
sp'dnd. 'Ibi^n the duchess took
inteiTupt him in these digressions
expeoialioAs ^ lile, Ac ttft«r
some general thiuijs asked him, If ever she
hade the least notice lSc correspondence with
him about these matters? or Inule ever as-
sented to or approved of his coniluct dnnttg
those 4 or 5 last years; if ever she hude done
any thing in the whole course of her life to dis-
please or disoblige him or ever was imeasir td
liim in any thing but two, one as to his women,
h the other for his disobedience to the late kirig>
whom she always took the lilkirtic to advv se
him to obey d£ never was pleased with \he
disotiedient course of life he lived in towards
him? If in auy thing else she had faileil of
the duty and obedience tliat liccame her as lus
wife, sh« humbly begged the favour to disclaim
it, !fc she n ould fall down on her knees <^c beg
his pardone for it. To which moving discourse
he answered, that she hade always shewen
hersell' a very kind, loveing & dutiful wit«
toward him, & hade nothing imagineable to
charge her with ; either against her viilue St
dvdy to htm, her steady loyalty & alTection to
the late king, or kindness or atfectiou towanU
his children : that she was always averse to the
{iractise of his life smd behaviour towards the
ale king 6c advised to great comp*yance and
obetlience towarils his commands.
" This is in short what was most remarkable
in the first intcnic w and conversation. M unday
niglit, the ni.Yt day^ the intimation of his execu-
tion tu be on \\ ednesday thereafter, was first
lirongiit to him by the bishops of Eli, Hath and
U'alcs, who stayed the most of tlie day .^
night with hint. All the while he iniportuned
more of his former actjuaintance, especially
such as be thonght lo have any credit or in-
terest with the king, to intercede for him ; at
least for a longer respyte. The lord Annandale
\ the lord Dover were frecpiently sent for to
come and speak with him. The latter not
being in town, could not give him that satisfac-
lion be promised Inmself if he saw him. The
iii*st hude leave to go S: see him ; tSc the busi-
ness w«s, that he Avoidd be pleased to go 6c
wait on liis mrtjeslie, Sf reinforce the arguments
be hade forTuerly used towurd.'i the saving of
his life. The f^iic en hade a letter from him ^u
that purpose, a«» also the cjueen dowager. Uut
all sigmtied nothing. And when he saw all
bin endeavours Sc Sidicitations to be unsuccess-
ful, he laved down his hope of lieving ^ bc-
tho'jght rumself of the well employing the few
liom^ that remained.
" The two bishops I named were attending
to the last minute upon the scaffold, as also
Dr. Hooper, Dr, Tlnnison of St Martine*s-in*
the- Fields, whom he usually hcar<l when be
lived in London, bet ore his first disgrace. The
heads of the divines discourse with liim, was to
make liim sensible *}i the former course of IdVi
he led, h of the rcliellious part of the Uiit of
it ; he haveing aharntoned htntsellto all sorts of
htsts without regard to the lawK of God or
mant ik living tor the U>t tuo yean* in the
public practise of it with the lady ficurietia
\Ventwortli. Most of their discourse insisted
upoii these two thingv; H, their chid* labouc
1079] 2 JAMES IL
was to make hini sensible bow grievous &
UD|)ardonable tbese crimes were, unless hum-
bly confessed & sincerely repented of. Tbe
substance of what he said to bi>th these points
was ; that he was none of those \s honi the
world called Atheists, that believed not a Su-
Jireme Being or future state, that with all pro-
bund respect and suitable adoration he believed
both ; that he was of the religion of the Church
of England, 6c believed ^1 the articles &
doctrine of it, without excepting any ; that it
was too true that he had i'or a long ume lived
a very dissolute 6c irregular life, 6c being
guilty of frequent breaches of tlie conjugall
▼ow: that he had oii humbled himself for it
before God, 6c hoped he would pardone him :
tliat as for his conversation with the lady Hen-
rietta Wenttvorth, whom the world had much
aspersed because of that, he knew her to be a
vertuous and gotlly lady (these were his own
words) 6c far froiii deserving the uukind cen-
sure she Iv's under on his accompt ; that it is
true that their conversation was very intimate
toff ether; & whatever was of it he had con-
sulted God in prayer about it, to know bis
pleasure 6c approba'tioney 6c bad not met with
anie returne that marked bis dislike or dis-
Gountenanceing of their oonversatione : that
for the last two yeares he had made it his busi-
ness to lead a more sober 6c regular course of
life theu be had done before, oc especipliy to
guard himself against the sins of incuntinencie
6c lust; towards the effecting therof he did
what he could to subdew 6c mortifie bis body
by frequent fasting 6e prayer 6c had not the
temptatione of anie irregular desire or ap|)etite
towards that ladv, but was the farthest from it
in the worlde ; but if at anie ty me through in-
advertencie or sudenlie of passione ane oath
proceedefl from him, he seldom faillzied of re-
tyreing himself, 6c beging God pardene for it:
and as to the other pomt he said it was true he
offended the kiugio invading the nation in ane
hostile way, & that it was his misfortune to be
. . . into it by ... . persuasioni'S of ill men
that haunted his companie: that he was sorrie
for it, and begcd God pardone for it 6c the king;
that he owned the king to be the only true ami
lawfuU king, 6c renunced 6c disclaimed all title
& pretentioncs to the croune, the leat king
having told him he was not his lawfuU son,
which did abundantly remove from him all the
hopes 6c notiimes wherwith he might have
flattered himself with ; this last pairt he wrote
(^ signeil with his hand to be dely vcred to his
majestic 6c published to the world, the two
bishops and two doctors having sigueil as wit-
nesses to it.
'' This branch of his disoourse pleased them
more than the former; which he perceiving 6c
desyriiig he mi^^ht have the sacraiiK-nt, hut
they tiii.ling him not qualitied for it by reasone
of his nut owptiiug his siiit'ulines of his conver-
satione with that lady, nor ane signe off re-
pentance for what Iiad beiu betwixt them,
thought fiit to Tiiuse him. They laboured ^
much to remove that erroneouB vpuiione Hm I bystanderes oouid sm it wkiioiil
Proceedings against the Duke of Monmouth^ [ 1080
I betrayed to that unjustifiable conversatione with
her, of which the world has talked see seanda-
louslie of late years. They told him by nee
law ever observed or practised amongst Chris-
tians, no by anie law of the land, could it bt
allowed him to. have anie other woman but bii
wyfc, that he was lawfullie married to 6c bad
solemnly vowed to have none other dureiog his
Ij^'fetyhae : that of necessitie, lor all thai hef
virtue 6c g<Kxlnes that be talked of, she moil
be either his \vhore or bis wife ; this she could
not be because be was married before to his
lady the duches of Monmouth, & bad lawfuU
begoten rhilderen of her, and the law eould
not allow of tuo wives, for she most neids be no
better than his whore, of which lie had ressont
to repent 6c acknowledge his guilL To which
he said, that when he was married to the
duchess of Monmouth he was verie yoong, h
under age, 6c did not wecl know what he di4
or obleidjge himself to performe on that se>
compt : That he had not that perfect love k
affectione for hsr that either she deserved or be
wished himself to have had towards lier, which
was the occasioae of his goeiug so freqiicDtly
astray from her 6c the ruuni.i^ af^er oihff
women : That the ladie Ilenrieta Wentwoilii
was the persone in the world that cured him ef
that wandring appetite, haveing mett with is
her conversatione all the blessings he eeoli
promise himself or expect : That they bad oon*
suited God by prayer and fasting aboitt it, k
was satisfied *in their consciences of the inso-
cencie 6c sinceritie of the inteutione ; and tsHc*
ing thus enthusiastically on that heed, sad
giveing noe better reasone for his opioioiie k
practice then what is lier sett douiie, he vest
on to the great amazement of those leaned k
pious divynes. And to interrupt him, one of
them asked him, if he allowed of poligsmie, uf
fornicatione, 6c adulterie, or thougnt them to be
sins. He answered by a full disoweniog of
poligamie, adulterie 6c tornicatione ; 6c believed
them to be damnable sins, which unless re-
pented of, they who are guilty of them casoot
be saved. Yet for all this tliey could not ^
engadge him of these od uotiones. he inter*
tained off his conversatione with that ladie.
Aneother asked, if he owned the dutclies of
Monmoutli to he hit? lawfull wife, and hiscfail-
deren to be his lawfull childeren ? To which be
replyed, That she was his lawfull wife& hu
oweued her as s«ich ; that his childeren were
his lawfull begotten childeren. This is insoki
stance what passed on Tuesday e.
** On Wednesdaye uutill he* was led furtb to
executione the divines contiuowed 6c reniied
their pious endeavours to prepaire him for ane-
other world. Frequent pious discourses and
repeated prayers were used by all of theiB,
Soiuctymes they prayed with him, 6c suine*
tyuies he was left to praye himself alone. Uii
behaviour all the tyme was brave 6c unmoved*
6c even dureing the last conversatione Ic fii
well with his ladie and chikieren, which \
the mourningest scene in the worU,
1081]
and othen^for High Tremnn. A. D. 1686. [1088
the btooti lliat Imd bein shed upon his Acixiniptf
iranie poor «oMi were l<i*t upim ihat occasionf ,
& uui lave it to Iim rhairg^e. Ami the tU^iuen^
addr^ssio^ hill) anevr, H'uh a ivuiief^iii^ ut ihnt
errotieouit C){imiont' nhnut thai lailie, he saitif if
Iie>va^ nitstaken in thHt fjjiiuionp, \ni bey^'il God
piu'tkiiie for it, fk ol' all ih« i.onbec{yences o1 it.
** Arirr ihai the (Je%*uUouoric V interro^a*
tone pairt hud been ux^Vy he v^etit to thut |mirt
ol liie scalTold where liie block Ac 4x Jayc-
The axe be took into hin h^md^ atiO Kit ihe
eilgi" ul' it, saying to Jack Ketch, the e^ecu*
tiouer, that sure the ax did iiotfeiil us it it wer#
sharp eoou^li, be prayed hiin that he would
due iu<9 otfice Weill, 6c' not serve hjni a» he wa«
told he had doiuj thetate lord Hitssi'l ; tor if he
g^afe him tuo stn>aks, he would iiut promise
Uitu that he would lye stdlto receive the thiid;
h puttinir bii hand m his [>ocket^ gave him aix
guineas ; telling him, that it he did his dutic
Hcill, he left tilx uioie in \\%s ti«rfaut*K h.imi§ to
he givcit him alter he was dead, pro^ydiiig he
did hiK busiijessi handsomcHy. All \\m he
»aid with alse much imlitVerencie ^ uitcoii-
cernednes ai» if he were gn etnvf ordours for a
Rute of cloathes. N'oe change or atiemiion of
counieimnce from the tirRt uuto ihe last ; but
stript htm»elf of his coat ; ^ havciug prayed,
layett buiisetr douoe, and titled his neck to* the
Mock, with aJl the ealiniHfs of temper anil c<im<*
|)oser ol invnd that ever hath bejn ohserTCil iu
any that nioiutk*d ihat latakl ftcalold l>efore.
He would liave no L-ap to his head, nor be
bcjund, nor have ante thing ou his feace ; and
yeu for all this the brtlchtrly do|^, the ej^ecu-
Uoner, did mi burUnrously act hj^ pain, that
he eouKl not, at iyte siroaks of the ax, sever
the hifad fironi the body. At ihe tirst^ whi<-li
made only a slender da^h in his necke, his
bocK heaved np \ his head tumetl about ; the
sftond atroak he made only a dee|>er dash,
after which Ihe body tnored j the ihird, not
beingj^ the work, he threw away the ax, h said,
God damn wie^ I ran do noe more, my heart
fills me. Thr hysianderi had miirli adoe in
lorbcar throwing him over the seal old ; but
made htm take the a\ a^aine, tlkrealening to kill
him i\ he did not dot his dulie better, which ti^o
stToaks more not being able to 6ni«ih the work*
he was fain at la«t to draw furlh hii Jong knife,
& with a to tnlt of tht^ rcDiaming pain of hit
Deck. If there h«td noi t^eiii a guard t»efore tha
shouldiers tu conduct tlic executioner away,
the people would hare tome him to pieces, ai>9
great nas their indignationc ut Ihe barburoyf
tiaageuf the lute dnek of Monmouth, receaved
at hia hand. There were inauy that had the
supersiittous cunutiiue of di[iing I heir hood*
kerchiefs in his blood, 5c carreyiug it ait ay at
a previous rclicpie.
*' Tliiia 1 have delyvei-ed your Lo, a rude
hisloiiinll draugjti oi'whut hafi come to my
knotvledi^e from originall ham Is, conceniiii|f
the last three dayes ot tltal untortuDate gen-
tleman's Hie ; bftveing markeft ihe most subW
Btaotialt and tnaleriJI thing I could galhi
tmn the tyiue he cnaie to Wb^thaU. \\Si '
tears, he did not shew the h'asi couacrnednesst
He deckred before all ibt^ rompauie how
•averse his dui'he^i had In-iu to all hi!> irnsgular
courses ; that she ha<l never bein uuease to him
im any occasvone uhaiiotoever, but aboul
Homeu and hitr faillKiu;; of dnte to the leal
h^^ ; and tlifti she knew notbiDg of his last
designe, uol ha\iiiL'' heard from himself a year
Jieforc, nhich waa hi^ owt-n fault, fie noe uu-
kyudnesA in her, because she ku^w not how to
dirtH:i her letlere« to him. Jn that he gave her
tlie kindest char icter that could be, flc beged
her (lardone of \h& many fadzeiugs and uiTeoces
to btr, and prated her to conrmow her kyndnea
and caire to hj<i poor childeren. At ihis ex-
pression she fell down oo her knees with her
eyes full of leare?*, aud beg«d him to punlone
Iter if ei^er she had done any thing to oiTend
aod diiplease hmi, and imbraocing his kuees
lell into a sound, out of which I hey had much
idoe to rai»e her up in, a good whyli after. A
Httle before his childeren were brought to him,
all crying about him', hut be acquytt himself
of these adewes with mueli comjKiKetlnes &
ainceriiie of temper, shewing nothing of weak-
Bess or uouian(ieiie«.
** About ten a clock be was Garrie<1 out of the
Tower in coach- And after haveinif pa&sed the
bridge was dclvvered into the sherifs hands,
who led him afonge up to the scaffold. Noe
man observed more courodge, resolutione ik
wuconcernedncss in hinu any time before
then appeired in liim all the why II he
walked lo ihe scafohl* why II he mounteil
the softfold, and wtiyll he acted the last pairt
npon it. As lie walked to it all the horse h
ItKJt gufinls were flrnwn up nnrnd abnut the
scafTaht on Towcrhill. He sahiteil the guards
\: sniyii'd upon them. When he was upon it,
ihe sbenf asked lam if he hud any thing
to say. He told him he was ne^er good at
ihe makeing of speeches, Sc would not begin
now ; for he was ^nre he would not be heard ;
hi if he were it would sfgnifie umhing-. Only
he told him he had on thing in say which re-
luted to I lie reputarione of a verie* vereuous Sc
worthie young lady, \y\\%v\\ had suffered much
on his acconjp!, Sc llieretbre wouhl give the
world that pnhlick h last testimotiie olThcr in-
nooencie V vertoe ; Ac do nmon in li*^comen-
datione^ till that the sherif interrupted him, by
asking if he was married to hei , ihnl he took
•<*€ much paines to vindicate the familiaritie of
liis cnuversatrone with her. To which the
duck ansuered with some moiione, that it Wds
no tyme now to answer particular question ea ;
be U^inir full of her e?er to the verie lasi, could
not forbear conchideing hialvfc wiih breacking
tiirih the last teKtimonie of fiijt esteem k aflec-
tione to her. He declared that he dyei! iu the
belief of the doctrine of the (Jhurcli of England,
Then lliey went to prayer. He »jid umen,
beartilie to all the articles of the I^anje, and
pmyeil heartilhe for the king. In his oweti
partikular pi-ayeres, he desyred that Uod would
pardone him all his knoweu \* uuknowen sins ;
#ipeciallie thote of the last pairt of hii life, &
rAT.
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** W It r«:M4 »<• ;kre (^if «n to anr'^^ntand t!iU
oor fft.trifiil hi A Utjf%i suhj«:r.u, ia aod about
Brent iiovcn a»«J LpbiJl, aad olhtr places ad-
jaecnt in our coootj of Somcncty utc taken
n tfTiu iir
fane ^rqrJM y Mil !■ . V^tefUfT'
x^iM- »!»<*■ V atwru tias s&d
tM ->^ 111!! a I nwi* TtnuzL.m
iArpftatv .tofCAr!tt Taws iimi isnoni. Jii
vtr JM^jif -maimgsm. m al 1
*■>«: r.rf* ■.!«; •- jr-*rt. :».•!
-• 'VxK A.i^ '»i» ft»o» j:* cr*»:-.:-;-r .: "J«
'X'.-* -g. '. -ariir 1 . I; -t ^^Vi,z^ :. _> f*r jmc.' b«rdal
..'. ». r« :..:« iV.trf;*:.! v. ,r.f\::r.r^ ; a::o th'jcij^
t»« 'jf„i I..* *.£.^ w re-iifii .1, a»i liicn cciucd
«:-;»t;« M^rrl '-.i .:. H« «u uuii»Cied rrom coaitf
an^ tk\,:^* &^,n.-aii ^/ /<aai^«i.
*• li*r<,. ''tu, :'V:^j. The il'-le of >[oniDOalh
owTi^fl t/> tfi^ k.c;^. ia pr&i^r:c« ''t' the dukeoi*
\ orw. ai ^•'.-^ta^v J{.cLiL«'«. tbat be kueir of
If.-; '.vboU: coLipirac^^ exce|*c the daigvcd as-
%iASkuzuf,^ ; acd all the {lersoDS, *~bo were
ooacfcmed la it with him ; and did not cooln-
dict any thing lord Howard leid ; bat in cmm
point not Tcry BatcriaL Urn owned vfaift
1085]
n,Jbr High Treatotu
A. D. rcsff.
[I08(i
colonel Iliimfcov bad said, as tn Innl Kussd'&
cayitig'^ when IVeDchartL liad tailed tliem, tlmt
lie would itn media tely \mt on his boots, g^o
down into ilie West, to Taunton, and make
tbem rise liimaelf* He wonder<?tlno rmu-ewu*
oeflS4«j canrie in o^Inst Wildman, sinci^ no miin
, wa* more active In the conspiracy. He sauf,
Ibat the council of six gave (lAeeii poutidH a
man^ tu send down Aafon Smitb to Scotland ;
that iir Win. Coortnoy, sir — ^ Drake, and
otfier EifGntlemex}, knew ot it, in the West ; that
Mr. Booth was the person they ilepended on
CheEliire, and sir J, Huthani in Yorkshire.
He owned his visiting- the Gnardi, in order to
the turpri:£e ; that doctor Owen, Mr. ftlead,
and all the chief of the North eonntry mhiis-
ten, were privy to and active in the conspiracy ;
that major Hurst, of Chichester, said, that* it
was easy to surprize Portsmotith ; and that lie
was ready lo undertake it ; ibr the oHicenr on
the guara were, for the most pari, drunk every
Dight. The duke of Monmouth hemg asked
by the king^ wlietlier they had any correspon-
dence Hith any in the puards or court, he posi-
tively denied it. As for iSkotland, that sir J.
Cochrane and Monroe's coming^ up hither
about the Carolina business was but a prelence ;
it beiug^ really to adjust matters, asi to the rising
there, at the same time that it was to begin
bere : That Cesnock, lioiiallen, Bailey, and
the other Scots so told, were all engiiged in it ;
that they complained fhey only \*anted arms,
but not good will; that Arg:yle could bring:
many men to help the western men ; and that
tbey had laid a design to surprise Stirling
Castle, by an old gutter, or sally port, towards
Balangwi'ib, where tliere were' no centinels ;
that tbey were to seize the chancellor and trea-
surer, in Edinburgh, which they thou^lit they
coufd do with forty or fifty horse, which they
could easily get into the towu^ without notice
being taken.
" May aoth 1684. Tlic duke of York to
the Prince of Orange. He found, Monmouth
Uad been to see him, without adverti'iing him
• ol' bia comttig* This was odd enough^ after
engaging in a conspiracy, for altering the ^o-
ver&ment and ruiuing our fattiily ; and reius-
ing, since he had his partlou, to own, that,
.under bis band, which be bad coofessed lo the
king, in the duke's presence. This tvas to
keep up bis credit with his rebellious party,
and vain pretensious to tbe cruwn : For no-
'tlung else could make him refuse to sign it
'* 1685. The prince of Orange considered
the king, who was the present possessor, and
the duke of Monmouth, the pretender to the
crown, as equally obstacles to bia aims. He,
therefore, had been formerly advised, by the
|>ensionary Fagel, that his business was to play
the one against the other ; and that whoever
got the better would equally advantage bis
pretensions. If the duke of Monmouth suc-
eeeiled, it would be easy for bim, that was a
protestiiot as well as he,* and in the right of his
fvtfe, the atxt b«ir, to shove bim out of the
3
saddle* If oil the contrary, the duke of Mon-
mouth w«!i woistci), he ffot rid ut a dangemus
rival ; and was sure all his party would then
have i-ecouiije to bim ; which proved aller*
wanis true. This ujaile hnu, undcrhund, do
alt he ctmld to inname this yuung man^s fury
and ambitiftn ; and semi him out, like a victtitt
to the slaughter ; playing a sure game himself,
to whomsoever fortuue snould give ih^ advaa* .
tage at present*
*^ The king had been long informeif^ even
in the life of the late king, by one Monpoleain,
a couipanion at their drinking btints, of iha
strict conespondence and friendahtn betwixt
the prince of Orange and MonmouttK Upon
which the late king said, it seemed strange to
him how those two bihould appear so gooif
friends and agree so well together, as they
aimed both at the same thing.
^* There were so many persons, In the mcaii
time, ready to aeoond the duke of Monmouib'i
request, and among the rest the queen Dowa*
ger, that the Ling, contrary to his judgment^
consented to sec bim, whir^h he shouhl not liave
dune, unless he had been disposed to pardon.
He was wilting to hear more ot the matter, re-
lated by Air. Sheldun.* It was strani^e my
lord Suuderlaud did not oppose it; unless, as
was said aftenvards, be underhand assured tba
duke of Monmouth of bi^ pardon, if be coo^
fes^^d nothing ; and then h hen he had de*
slroyed his own credit, by cunt ru dieting bim-
fiolf, be took care to have bim dispatched as
soon as posiible afterwards. If Monmouth*!
head and heart had l»een auswerable to bis mien
and personal outside, he hud certainly great
opportunities of pur&uiiig his aims, by the tur«
buleucy of the times, whom my lort\ Sbaltcs^
bury, by his great dexterity, bad so much in-
Hatued against the duke of York*
" The punishment of Monmouth's folfowera
raised discontents. A coraraission of Oyer and
Terminer was is&ued to (be Lord Chief Jus-*
tice Jefferyes, to go down into the West, and ^
inflict such punishments as the example of i
fomaer reigns and the security of the present
seemed to require. But imprudent zeal, or^ aa '
some said, avarice, carried him beyond tha *
terms of moderation and mercy ; and he dreiy
great obloquy upon the king*s clemency, not ^
only in the number, but in the manner too of ^
several executions ; and in shewing mercy to
80 few, particularly to an old gentlewoman*
one Mrs. Alice Lisle, who was condemned and
executed, only for harbouring one Nick and*^
* He bad sent Sheldon to meet the duke, oil ^
his way to London. Monmouth confessed ;
every thing to Sheldon. He discovered the
intrigues of the prince of Orange and his owif ]
abettors in England. But Sunderland, tt seemf,
aftei^ards induerd him to deny the whole
when he was brought before the King ; assur*
ing htm, that he wa<« eertam of his pardon, and
therefore ought not to betray friend«, that augbl
be usdul to him, on a ftxtMs^ ^ ^
a
9JAAfESII. Proeeedingi agaitut the Duke qf Monmouth, [lOSS
1087]
NeUtrop, both ill men raoiig'h indeed, and
Ibe lAtler in a proclnmatioD. But, as ^he pre-
tended, was igfnoratit of it, and therefore, per-
haps, mig^ht suilpr for n common act of liospi^
tality. But I his seventy w«.s contrary to the
kiiig^'s intentioiii ; as appcaj-s froip the ilifterent
treatment one major (lutme^ met with from the
king and the Chief Justice. Holmes bad lost
bit ion and an arm io the hatile. He was
brought up prisoner to town. The king^ beiD|[
desirous to see him, he hehared himself in su'li
a manner, as ^ined esteem from every hotly.
His cairia^e was free from dejection, but full
of respect. He had recourse to the king's
mercy ; and sai^l, theiavour he had asked was
more beneficiiil to the ktnt; than to him, eonsi^
dcrinif his losses and his years. Hie king-,
u ho loved coura^ e%'en in an enemy, could not
refrain from countenancin^st bim. He dis-
coursed freely with him, and no one was more
trequently in the antichamber, till it was thought
fit to send him down to the west, to inform
Jeffereyes of those who most deserved mercy.
He was hang'ed with the rest.
" The king questioned the chief justice,
but he palliated his seTcritjes with the prefence
of necessary justice, which the king- knew not
how to contradict, since he had the precaution,
not only to send four other judtres as his as-
sistants, along' with him, but Mr. PoUexfen
likewise, ir quuhty of his solicitor ; who, being
a known favourer of the presbylerian party,
lie hoped would moderate the chief justice's
beat. This made the king" acquiesce m what
bail betn done, tliougb it was ol ^reat disser*
vice to htm at bottom. The cruelties of Kirk
were still more ioexcusahle than the severities
of Jeffereys. He causeil many to be banned
more out of a bloody dis]K)S]tion, and to saiii^fy
liis own brutal passions, than love of justice nr
his ma^ster^s service. It is not improbaide, but
even then he had it in bis view to draw an
odium on the king.
'^ On the! 1th of June, Monmouth landed
with 150 persons, at Lyme in Dorset. Besides
ihe information of 8hel*lon anil the prince of
Orang^e, the king had l»eeD informed of it by
one Moujiouleara, a l>oltle companion of Mon-
mouth's ; wh<» also informed him of the strict
correspondence between the prince of Urang-e
and Monmouth, when he was first in Holland,
• When x^lonniuuth was taken, he wrote, on the
road, to dctsire admission into the king's pre*
sencf ; having: som«what to say, that would
give bioi a happy reigfn, Halfdi Sheldon was
•eut to meet him ; and being' asketl who bad
tbe chief confidence witti the kin^^'^ he said
^nderlaivd, Moumoutli theu, konckini^ his
breast in a surprise, said. * VVhv t^'*-^^ -is | hope
* for salvAtiou, he promisi*! " .■ He
lUfaiired l^bddon to at.-quiiun l.i ..,..^ with it,
iB4 tbftl be wouUI intoriu him ot' ajt his ac-
€OiB|tlioia, seeing &ome of ihem had the kind's
confidence. Sheldon, un bis reluni, was jyi**
iUji the km|^ an account, when ISunderland«
pretend mt^ business, came into the closet, and
ttkeidou Mft, dituing to s|^tak to tii«. kifig la
private. But the kinif tohl him he iiit|;hi say I
any thing before that lord, which put .SheMottl
to great perple^ty ; yet be to hi what Hloik^J
mouth said. Sunderhmd ifeetncd iii first sti
but, after a short time, said with a lau^
that be all he can discover to s.i^ "^ tv HI
will do tiim little gomL Monui r he]
was brought to the king, b^j^^^*,. i .. ^.ticy ; <
but made no great matter of dici^very Ufr I
would not see hi^ dutcheas his wile in faw, nor ]
in tbe si^bt of God.
**' Proclamation against colonel Danrervl
J. Trenchard, George Spekc, Frands ChsH* [
ton, and J. Wild man. The lords 8taniibrtfyJ
Delamere, and Binmlon sciited, atnl put in I '
Tower. Jefferiei sent to the west.
Holmes sent to inform Jefieries of tbe i
criminal, and of such as deservcti mercy, i
hanged witli tbe rest. ILirk, with bis
made strangle havock. Lord Brandon Ge
was tried and found guilty, on the
November, but was atterwar<ia par
Hampden pleaded gtiilty* Dcdamei'e wi
quitted, and iSeuton found gnifty of [
Stamford was not tried, b\s» "^^t^'^^*^'*
gerlield was tried, on I Ik
found guilty of peg ur v. iJ- - iji
to TyUurn, as he wu» rettirnmp; iij
Mr. Francis askios^ him, in di ;
back did, Uangerfield making an ubusiver(^]iff,i
and Frauciii thrustifigin his catie, unloKimaltlj
hurted his eye ; of wh»ch he died in SDOBf
days. Fractcis was tried and confirm ni^l; lil
though he destervcd well of tbe i Id
tain no pardon. Hook was seui 3ii
water to London, for the iusui lectinu t
On ibis, the king bad augtneiiled tbe
ta 13 or 14,000 lil«u.'*
With respect to Idog Jameses giving an mtcT'
vietv to Monmouth, whom be wus determined
not to pardon, Well wood says, ** King Janiet,
in ordering him to be btougbt into Uis ^pmitnoi'i
under the sentence of death, was plttftied t»
inak# one exception aguinst a 'gcneriil rnlesk'
served inviolably among kmgs, Never to
criminal uuder the sonieooe of death, ih
of hi« princess face, without a deaign to
him." Wetlwood'a Memoirs, p« 170,
When it was told tbe duke of
Blood was taken, and that bis tnai«ity
to see him, ♦' Then,'* said he, *♦ ine mi
not despair, tor Buvely no ktnix should
see a malefacioi t)iit V- '
him.'* Sir Uohert >
First Duke of Ui mou
njorrea** History of i'
of th« Imh l*arlianita., ,«L »,
Of Moomoutli*s progreas in quest of poj»fl*
Urily [See 1 Halpb, », 49f| and IT
G i3.) mention has Wo made k ti
tion, *ol, 10, p. 133G.
The following |»aaK«g» of IMtymp^*^ Itf*
moirs, |»an 1, book 1, p« U, 4I» adili0iiti<|
Gurious M uUiibitiog bis dtsgnoiAil 1
MOSS}
md otkert,Jor High Treastm.
A.D. 168$.
[1090
fncrnlible ignorance mf the nature of ibe
writ of Hnbciis C4irpu** ** Id the midst of
JVIouniuitth's triumphs, Chorle^ ^ave order* to
iftke 111 in into cu!itudy, TUt it Ay lie was ar-
Itestedj he was lo 4iue in ihe |iiiblio strcseUi of
^fitaflbrd xutb alL the iuh^dHiiiois, in vtmso
IjjiieDce of an initLuliou uhii^h Umv ha<1 given
•jinn. A Rin^lt; inPisenyfer eniL-red tlie Unrn,
•hewetl his virit, mid raniH him oft'. Moij.
;4iif>nth disp»id>pd ^ir Thomisi Armstrong to
fijOodoQ tur a Hai>ea« Crvqiuti ; It was in-
VUmly granted : hui Monmuiiih, ins tend of
9«turfuii^ to hfs friends, coutluuefi his journey
4i» L^niltiu. 3k'ii l^now not which njotii to
«diiiire, the reverence of ttie fieo]ile for tl^c
laws when they saw them dis|diiy(^(f« or the
Hohle uatnre of the law af pensonal frt^-edym,
vrhicb |rave fteciiiity even to a distui^ber of the
MtMtCt until a le{(iil charge wai bronifht a|^aiast
»? Unw far it is hkely tliat after Monmouth
Piad aclvanced from Lyme he could Uy anv
liiieans have t^rtV^cied the auecess of hiii expedl-
,^ion or tlie eai^ape of liiiuself, I do not pretend
*tu df ternune. Kiiine (wttli ^rreiit ra.^bness, no
l^ubt, tts Mr F'ox has olj^erTed) ii<i»ert^ un-
l!f|ualiiieilly thut Uie injiur^rems wonhl, tiotwith-
^iMinhug' the ftulure ot th<^'ir ammuaition, hare
|p4 last ohmifit'd n victory, had ntit the tnitcon*
^tictof ibif Dukeaadthe cowardice of Grey
prevented it,
|li?re«*>y, (See vol. 8, p. 31 a, of this Col-
lection) luentioiis the tear whicii was enter-
ftained that Khouhl Mutinionlh i;ive a blow to
|;^e kioif's loiceB there would be an losur-
! section in Lotidoo : and it is stated in jMac-
nherMon^ii ^ Lite of JiiiiiPfithe l^entid written liy
liimaptf/ that i1 IVlimniottlh had not liecn Ideate n
11 rUnit; woyhl have-' taken place in London,
for which men were ready. Certain it is,
that success was rendfinl in^possible hy the
iliiiscimdiict of («rev, both in council aoit in
the Hebl, for which an appears lo me it is
ina|M»ssihie to account hut hy the operation of
the ibulesi tieacheiVt ibnn^h i observe that
^ B4 r. Fox, who ^penks of tirey as in all in$lance!s
the Evil Getiiuu of Momuonth^ impute* to him
cowardice a b»n'.
I RoiTfr North, (Citanien, part 1, ebafi. ^, s.
I 05) noticing lord Gi*ey*s refusal in Churlfs the
«econd^» lime to serve under Monmoutb a^tnst
mouth was inflexible agaittst assufnin»r ih«
title of kiuf?, uotd it was told him ttial ft
waa ihe ouly way to provide ft^ain^t tb«
ruin of those that should coiue in to hia U4'
sisiance in case he faikd in the atttMOptp
that they iiii<;ht lie she lie red b_v the slatote
m* !e in the rei^n of Henry the stf^entb in fa-
vor of those thai should obey u ktnjLf de Juito.
TUoBc that advised him ha<l dilfcrent ends in
it ; (iome to reader the breach bttw«'en krnj^:;
Jatiieii and bini irreconcileHble, and thereby
psiie away for a Common weultli in play ni^
tlicBj ag^uin^it one another ; others lo prevent a
po^sibihtv<if his being' reconciled to kinti( James
hy the merit of dehverlng up those that sUould
join him, which was a thoug;ht unworthy of
that nice sincerity be hud shewn in all the
former conduct of bis life,"
And in the precedlntf pofrc lie says, be rt-
members to have heard Kumbold say openly at
his execution in Scotland [ij^ec bis Case, p.
873 of thi^ Volume,] that Blonmoutli bad
broken his word with bita in dfclaring bimself
king'.
]>i el thorp, in his Jast speech, declared, that \\m
believed Grey and Mr, Feixo^u werethe chief
prompters of Monmouth's being declared king.
JSee pp. ^5d, 357, of this volume.
Jn Narcissus Luttretrs '* Brief Historical Re* ^
lation^' is the following^ account of the beha-
viour of Monmouth and Grey :
»* July 13lb, 1C35* The late duke of Mon-
tnouib and lord Grey were brought up lotown^
l^uardedby several ironpi of horse ; tlie former
seemed iinich dejected, the latter very cbearrnlp
talking oF do^rs, huntvni*', racing, he, Tbey
were both sent to the Tow^r, that evening hy
water, thousands of peo[)le being Hpectatoj*«,
who setmed much troubled ; it is aniil tho
duke writ a letter to bii majesty, the eifcfa we
know not ; and that he de««ired to speak ivitli
bis majesty, which it is rejwrtcfl he was ad-
mitted to. Time must shew the truth.
** 15th. There being a warrant fur Ihe exe-
cution of the duke on this day, he was accord-
ingly brought from the Tosver to a scaClbId on
Tower- hill, accomnanjed by the lu shops o€
Ely and Bath and Wells, Dr. Cartwri^bt, dean
of Ripjion, and Dr, Tennison. He was ha-
bited in a grey cloth suit lined with black, and
a bmg peruke'; he had a discouric witii iho
r the Ni^-ots I n^nr;ji'n IS, add «/M>nt whether really I bi^lmps, and desired to have the Sacrament,
||«ir this caimi' \y^ scruple, which he tells us was
\ raised, ibut ilic march into Scotland of Eii»jlish
troops uould ti^ a viohition of the contract be-
twemi tlie two nation<4, that neither should bos-
lilfly invade the olher] oi ulher private leunoos
i^lfain^t ihe duke o| >liioniouth (whom f<ir do-
^ mesttc caust-ii be huted) ilid not appear. But
afterward.s in die reipi of km^r Ji^mes the ie-
conih wJien the duke oame from Hnllitnd, the
' lord Grey of Waik scrvetl in thf s;iine com*
mund under hnii, aod %< heiher at the battle of
6ed*jmore he did not iiuire ret^fHrtl reven^ife lo
lais pnviite wron^^, than thesnccessof that en-
. ierprise, is at dark as the other,**
Welwood (Hieiuoin 173) •ajs^lblit *« Moo-
VOL. XI,
which tbey refused, unless he would there
make (as is said) a confession of his cnmes ;
which be denying to do, be hati it not; lie
wave a paper to the bishops and declared bira-»
self of the church of fiu^^land : he was very .
composed ; after near an hour he laid himirelf j
down, and the executioner did bis ofBce, but ,
had five blows before he severed bis beid;
which being at lant done, be held it up» but I
there wjia no sbotitincf, but many crved. Tbie j
done, his bod) ami head were put iiito a cotfin *
coverifd witli velvet, and etkivied back to Ui#
Tower, where alter it was buriid.
And in tbr^saiue M8. is the following- meo*
tion of some Ut4»f pMrticuUn rtkiiife to Gt«Y x
4l
1091]
2 JAMES II. Proceedings againH the Duke nf Monmouth, [109t
" Not. 13, 1685. Ford lord Grey was
brought to the King's- l>ench bar, and asked
why execution should not be awarded against
him, he being outlawed for high treason, in con*
spiring the death of the late king, &c. to
Hhich he said he desired* the benefit of his
majesty's gracious pardon, which was read,
kneeling at the bar, and it pardoned all trea-
sons, misprisions, rebellions, &c. till 30th of
September last. So his pardon was alloweil,
and he discharged of his imprisonment ; and he
came into court and \ras sworn to give evidence
to the Grand Jury against lord Brandon Ger-
rard, and Mr. Charlton, and Goodenougb was
sworne to the same purpose, and colonel Rum-
sey as to that aj^ainst Chariton.
*• June 17th, 1686. The lord Grey of Warke
came into the court of King's-bench, having a
writ of error to reverse his outlawry ior trea-
son allowed him, the attainder was reversed
for error, whereby his lordship was restored to
his honor and blood."
In 1695, Grey was created earl of Tanker-
ville, and towards the latter end of king Wil-
liam's reign he filled for a short time the offices
first of First Lorduf theTreasury and afterwards
of Lord Privy Seal, ^ee some farther account
of him, vol. 9, pp. 361, 362.
Concerning the reported marriag^e of Charles
the second to Monmouth's mother, Mr. Kose
has, in addition to what was before in print, (as
to which, see S Coke's Detection, 245, 246,
S49. 3 Kennett's Complete History, (2d ed.)
Z66. 1 Oldmixon, 620. Echard, 988. 2 Rapin
(fol.) 712. 1 lJurnet(fol.)260, 961. 1 Ralph,
497, 498, 199. JSandford's Geiifalogical His-
tory. Harris's Lite of Kintj Charles the 2ihI :
and * A Letter to a Person (»f H(uu)ur couttTn-
' ii:^ tho Klnij's (Iisav(i\vif»L»- tho lia\iijt^ bcin
' niarricd to llu* diikc* of MoimtioiiIIi's iiioil:ir,'
\v the lluilfk..ii PuMjpl.lils ; wliirli LctK r, ac-
t« rdiijj>* to IIc.lpli, was supi.<»s('d lo hv WjiJleo
l»y tlie IK ted Ferguson), |Mil»!l-.Iied (O'osi-rva-
tionson Air. Fox's ilisl()ri<al Wo\k, App* ridix,
No. 7), fronj the orli;hnl Reconl in the Chapel
of the Kolls, the loliowing very curious «!{>ea-
meiit : which I here repruit, ululer Mr. loose's
ready permissi'iU :
Enuolment in Chancery of King: (liurh's the
Second's DeelaralnJii tUut lie vas rot
iiwinicd to the 3Ic'.i»cr of the i;uke of
liiimiaouth. — .Seeiui.la Pars ClaiN"" de
An:io lietjni KcLjis Caroii bccundi Wi-
ccsiino secundo.
IVLMS DiieLAFiACu'l P. (flO.) lilKMORANClM
th«a Tuesdny the fifkentli'day of .hi:.e ii ilic
two and ihiititili yeare of the iei;;Mu of our
Bo\eraigije lord C*harh?s the setoiid, cvC r:unfc
into the Hi':h Court of Clianceiy ihe Kintfs
Attorney (jeijcrall; i\i.d arcordinr to an order
made by tlie Kin*;- iu C'ouiicell ihe serojid <;.'
the same m<»netii of June in the said two \
thirlietl) ycare ol his MAJesties reignc, moved
that the two severall declarac'ons of his I\Ia-
j^e lierealler iuinic*oued, both wnttcn by his
majestie with his own baiid,be iorolM i
the records of this Court for the safe custiNly
of them ; and said that direra noble persooi
were by the King's com'and present to wit^
nesse ttiem.
Whereupon the court directed that the
original declarac'ons themselves should be
prcMJuced and read, and the witnesses to proTt
them sworne.
The former, of which declarac'ons wis
thereupon produced and read in the words and
figures following :
** There being a false and malitioiis repoit
industriously spread abroad by some who are
neither friends to me or the duke of Moo-
mouth, as if I should have beene eitbrr cos-
tracted or married to his mother ; and tliongk
I am most contident that this idle story csb-
not have any effect in this age, yet I tboagbt
it my duty in relac'on to the true succession of
this crowue, and that future ages may not bare
any p'tence to give disturbance upon that seen
or any other of this nature, to declare as 1 dM
here declare in the presence ol Almighty God,
That 1 never was married nor gave any cos-
tract to any woman whatsoever but to my wifii
queeue Caiharine, to whom iaro now luarrid.
ill witness whereof 1 set my hand at Wbitebttt
the sixth day of January 1678-9. ChahlesR
*' And this Dcciaration 1 make in thep'sesot
of, VV. Cant;,
H. Finch, Caoc',
H. Coventry,
J. WiLUAMSON."
And then the arcltbisho^> of Canteiboy,
the lord Chancellor, Henry Coventry, esq. and
sir Joseph Williamson, being the persons that
subscribed the said declarac'on, did de|>06e,aDd
hweare as followeth, that is to say :
'i'liesaid Archbishop did depose that upontfat
sixteenth oi' the same Jauuary the kin<^ called
hnn into a roome within his h<itchaniher, sod
read ilie declurac^on above reeiied to him, and
then ^ave it into his owne hand aud bade him
read it biuise!fe; which he did, and atiertbat
his majestie was pleased to deelare that it nai
all of his owne hand writing and of his owne
j inditing, and did very solemnly with his hands
and eyes lifted upatiirnie in the |)'scnce of God
that all the contents of that paper were trae,
wh(;icupon he thesaid sirchbishop by thekin^'«
ooni'an<l did snl>scribc it by way ot attestac'uD
jusl aho\e ihe lord chancedor's name which b«
found suhserihed to it helore.
The Lord Chancellor deposed that on Sunday
ihe twcU'tb of January in the morning, at
V» iiiteha!!, after his majesty returned from
eIiHj>j»el, his i:j;'j.'sly eon.andcd him to wait
upon his ntujei,ty alone in his inner closet hj
the waterside ; and there read to him tlie pa-
per now showue, written all with his majestye's
owne hand, and subscrilied Charles H. but not
Scaled, and his maje&tie com'anded bind the
said lord chancellor to write his name as a wit-
ucsse to it. The lord chancellor said it was fit
tor his majesty in the first place to add by wt/
of postscript, * Aodthisd«adifac'4NilBMJMiB
md the t
timi the i
p*S4Mioc of/ which his maie^ly flid inietti-
wiite with liis owiie hKriiJ. Ttien be Uie
lord chaacdior desired lo koow oV his lua-
_wh]|t other \irit(ie?9$ies he intemleil to call
\%M he ihe 6ui<l torH chaticellur mig^hl
> iiAitte at a due i!i!jtance ; hif majpstv
I to say he Moultl have him and the
eiariea. The lord chunceHor then
l^ini that to a busiues^e of ihiet tinture
mtHt proptT witnes<ie thai could be called
bhe archhisihop of Cnutt^^rburv : 80 tie ttie
lord chancellor lAX a space tor his the said
:)tshop^s nmoG, and suUcribcd bis owim us
vf stands.
le «aid Henry Coventry depofieil that both
jrmer hnnds wtT«'i»et to rt hefore he suU-
cil it, and that he did sub^crihe rtt ; aud
ihis prt>duce<i, is tli** very same psiper, aud
.he king said it wak bis owne huiid and pro*
J ibe truth ut it.
le aaid liir Jo«eph Williamson dejuwcd
^ king^ called him in into the inner chiset
fdeclaracon, and hid him read it,
! kin^ tlid detlut e in the p^'vrnce of
that it wa.^ bis dectaDic'on i and d^'Clured
ralh oi' it, and that he was never married
rs. B4rloi«%
len the second Decljrac*on was road» and
the coppy of il, && it is eutred in the
li bookes* ; and tbcy bcii>^ examined and
pled agreed exactly^ bein^ in the words
^^res futbuvins^ :
For the avoiding^ of any dispute which may
eo to time to come concern iu^r the succes-
t>f the crowne, I doe here declare in the
iCC of Almighty C»wl that 1 neier gave nor
: any contract of marriat^Cf nor was mar-
to any woman whatsoever, but to my
It wife qoeene Catherine now living,
^all the thinl of Marcb 1678.9.
m " CUAllLES Ry
Br which immediately follow in the
DeU biH)kes the words aod letters fallowing :
[lit majesty commanded us w bo were p^sent
c mnkejn^ and fiignin^ this declarac'on to
: the Hamc. tmch C. Danby, Lau-
derdale. Worcester. Essex. Bathe*
Crafen* Aylesbury. Ossory. Arling-
ton. Hundcrland, Clarendon, 11. Lon-
don. N. Durham, W. Maynard. G.
Carteret."
[then the persons whose names are
aubscribcd, being all of them p'seut
ItJie earle of Dauby and the bi^shop of
B, whoe were now absent^ and sir George
who h now dead, did depose aud
i tblloweth, that is to say ;
m Duke of Landerdalef uppou viewing* the
cell hookc, did swt.>:ire that he heard the
' ' ; ' lliat the king'« h»nd is to
js to it» atid that be saw
>u. n, nm\ that It is the s«me as it
U.i|ue^ie of Worcester did depose that
I produced the dcQlarau'ou in eouncctl
written and bigneit with hi» owue hand : and
coni'andefl that it should be enlred ; thai h«
ittw the king ii^j-ne the entry, iuid that be did
subscrdieit m the hooUe by the kttig^^j command,
end that he likewist; hetird hi^ tnaje$ty mako
the !>auie dec I a ra' con by word of mouth.
Ilie Earle of Ossory dejxised that I he decla*
rac'oQ wosentred m thecotinceU btioke l»y thtf
kind's cumVnd, and that the king did &iib-
iccibe it, and that the eurle of Oi»a»ory himxeltd
did sidiscrilie it by the king's c^m^and.
The liarle oV Artioyiou deposed, that be
doth remember his majestie's producing iti
counccU the declarac'oo in paper, that the
king dill underwrite that in the counc^^il booke
being cutied thtire by his c(Miranil, and
com'auded that it should be »oe ujxterwriiteii
as it is by »evei*al lords p'seut, and retuembers
hi^ uwne name to be tiii*» owne lund writing.
The Earle of SundeHand deponed that be
hesrd the king declare it ; and com'ttuded it
should be soe underwritten, as it is ; that he
saw the king signe it, aud that he the earle
himself did MuLnscrdie it.
Tile K<u"ieof Chirendfcjn deposeil that he heard
the king make the dccbiracViti urn) coiii'anded
it ikhould he eiitred in the councell booke ; and
that he 9aw the king siigue it at^er U was en*
tr«/d. His m»itesiy then commanded the lords
who were p'sfut lo sub&crtbe the saiio^ whieb
they did, and Uc the said earte subsiribcd it
likewifie.
The £urle of Rs^ex depojicd that he heard
the king declare tho wurdis ; atid thai iho king
did Migue it and command it should l»e cnired
and sub'ieribiMl ; (iml it v>a«» dune accordingly.
The Eurle of Bathe deposed Ihai he heard
tlieking make the declaration ; and command
it should be eutred aud subscribed, which was
done accordingly. That he saw tlie king
signe the booke, and bis the said eiu'ie's aam^i
is to it as a w Itnesse.
The Karle of Craven deposed that the king
made the declara' cou above menc'oned ; aud
commanded it ihoiild be entred into the couti*
cell booke, which being done his majr«ty
signed it and rerjuired all ihe lord!^ then u'jkeiil
to sigue it alsoe, which was done accoiJingly
by the said earle.
The Earl of Aylesbury deposed that he
heard the king make the decbiiac'ou ; and that
he did signe it aud com^^nd it should be culred|
and that he the said earle did subscribe it him-
setfe. t
The Bishop of London deposed that he
heard the king declare it ; but he did not se*
the king signe it, but doth bebevc it is th«
king's hand ; but he himielfe did subftcribe it^
and it i** the same declarac'on.
The Lord Alaynard demised that he beard
the king declai'e it^ hut did not see him jiigno it»
being at the lower end of the table ; Thai
the king com'audeil it should be entred, atid
he bimMilf did subscribe it.
I'he L>«Ji d ChaticcUor de(tofed that he sa>r
the king Mgne the dechirac^JU, aud that he
iionn'anded the lords to take neiWe of it
I
I
I
1MB] t JAMES XL
thai a tlMold hB «iitMd, and ha juoMtlfe dkl
jMbaaribe it, tad it k hw bimd that it to it
Sir Joha Nicholaai one of tfao elcvktof ^m
•iimoell, dqKMed that he by the king't
oon^ta^ entred tfao dodaratioD with his own
hand in the cooneell booke from the orujnal
written in hit mqcaties owno hand, awTitis*
the aarae, and that ho aaw the king and tho
lords now p'aent and swome ■ubecribo the
•ame ; a^ that he saw tho earlo of Oanby,
the bishop of Dorham, and air Qeoige Car-
teret lato vice ehamberiaine to iiia majesty
mbscribe it alsoe.
William Bridffmaa and William Blathwayta
eaqoires,- two oforks of thocouncell in extraor-
diaary,.deposo that all that sir John Nichoks
lutd now swome was true ; and that they saw
kis majesty sigpso the deelarac'on io the
couneeir booke, and the aererall kmls abof e
named subscribe the same. '
Whereupon it was ordered by the eourt that
the said Declarac'oos and De|M)sic'ons should
he inrolled m this court for the sale p'ser?ac*on
and custody of them.
£t memorand' ^d^ p'mandatnm p'honob'lis'
viri Heneaij^', d'ni Fmch BafDn' do Darentry
d'lii Caocellar* An^lie in bee ▼erba videl't (Let
the declarac'ons and deposic'ons aibresaid be
entred and enrolled for sate custody io the oflice
of the petty bagff and office of enrollments.
H. Finch Cane') Declaraco'es and depo-
sic'ones p'dict* de rerbo io rerbom prout p'scri-
hnnt' irrotulaot'.
Irr' vicesimodie Aa(^asti anno R'. R*. Carqli
■c'di pMc'itrtcesimo secundo.
D.efH/ In a PBmmiwlSB to fa toi fcat ef
the East Riding of YotkahiraApA lifS, « Ov
dearaon JaiiMiD.oril.' ton niMJiriin
for the |{ov0mment of Hnll April 1dra,^<0»
wdbetored natnral son Janaea D. of M.* bk
amnt of ferfeitares, Auf. 1075, * Oar tariy
Mored natural aon James IK of M.' In a
grant of the offioe of - ragisler in vhmimff
Aiur. 1676, « Our drar aon isAMa D. ef If .*
Welwood In tho Appendix to hii MsmsIw
has pnbKabed aosiie passsges ont of thodihi
of Monmouth^ poefcet-book .thi^ was seiaad
about him; in the Weat. He has nlao pa|^
lished relatii^io Monmouth's
ibiiowingartiae:
Sir Patrick Hume (Narratire published by
Mr. Rose, pp. 12, 13,) relating a cootiereoce
which he had in Hulland with Moumouth
shortly beibrc his Expedition, says, ** 1 ur|i:ed
if he cousiflered huuselt'as lawful sod of kiu^
Charles last deceased ? He said he did. 1
asktd, if he was able to make oiitjiDd prove
the marriage of his mother to the ki»g Charles,
and he iutended to lay claim to the crown ?
He answered, he had been lately able to prove
the marriage, and if some persmis are not
lately dead, of which he would inform himself,
he would yet be able to prove it. As tor his
claimiufj^ the crown, he intended not to do it
unless it were advised to be done by those who
should concern themselreiJ^d join ttir the de-
livery of the nations," 9^: : in a Note to
which passage Mr. Hose extracts the import •
anti)art8 of the two curious letters (published
hi Thurluc's State Papers, and cited by Harris)
to Charles the second, from his sister the prin-
cess of Orange, in which as it appears the
mother of Monmouth is spoken of as the wife
of Charles.
The duke of Monmouth was sttled in a war-
rant dated April SS, 1667, from the king to sir
Edw. Walker, garter, concerning arms, • Our
dear son James D. of M. and Bucdeugh.' In
his commission, tobegenenri, April, 1668, * Our
most entirely beioretf and natural soDi Jai —
A LETTER of the late Den «f Mfomiomili
writ m his retirement in HoUand, a fioli,
before bis Attempt in the West.
(An OrigioaL)
«Irecdved both years tof^ther ithis Mm*
* ing, and cannot delay too ny answer IsofSr
* than thu post ; tliough f am afraid it wiH
* not please you so much as 1 heartily wirii it
* H»ay. I have weighed all yonr reaaens, sbI
* every thing that }ou and my ottier ftkwk
' bave writ me upon that subject ; and hais
* done it with the greatest indiuatioB» ta 61-
* low your advice, and without prnodieib
* You may well belicvo 1 have Ihm tun
< emtugh to reflect sufficiently oo our ystsat
* state especially since I came hitbsr. Bat
* uhatever way I t)im my tfaoiigfala« 1 lad
* insuperable difficulties. Pray do bat tUdk,
* it an effi>ct of melancholy, for that wmu
* my greatest liiult. when 1 tell yoa» IVl
* in these three weeks retirement in this plae%
* I liave not only looked back but fovwaid|
^ and the more I consider oiu* present m*
* ciimstauces, I think them stiU the OMia
* desperate, unlewi some unforeseen acctdcat
Mall out, which I cannot di\ ine nor hope far.
* [Here follow sixteen lines all in cypher.] .
Oudgethen what we are to expect, m csss
* we should venture upoo any such allf m^
* at this time. Jt's to me a vain arffomesl^
« tliiU our enemies are srarce yet uollsettlaii
* when you consider, that fear in some, aaa
< ambition in others, have brought them ts
* comply ; and that tho pajd»meoi beiiig
* ma<ie up for the luotit part of members that
* formerly run our enemy down ; they will lia
< ready to make their peace as s«H>n as tbcj^
* can, rather than hazard tliemsehres upoo as'
'uncertain bottom. 1 give you but binlasf
* what, if 1 had time, I wouki write yon Si
* more length : B.t that I may not seem e^
' stinate in my oivn jodgineut, or neglect riM
* advice of my friends, 1 will meet \oq at the
' tiii«e and place appointed. But Ibr Sod's
* sake, think in the meao time of the imprslJa
< bilittes that lye oatorsMy in our wi^ ; sal
< let us not by struggliny with otv chaii#
« make them snreightcr ami beaner. Psr aM
* part rilrup the hazard of being dwvglltavf
* thing, rather than a i^nAii f
'And ts tell yo« «^ r
8
mmd (fthwrij/ar High Trmom*
A. D. 16ft6.
[1098
f mi now so iTTtK!h in lore with t fC'
i4^, thai 1 «tti ne? t*r tike lo be tbn«f tif
ST B Itaflt4r io ttje wc»rUi a^n. I have
itture U> »ay» but the po«l ciinnol ilay ;
refer Ihe rest till inrt*! jng ; bdug eii-
Vours.'
following DociitnenH reUlinty to the
irw li<»lweet» iht; kinjj ufi«l Monmouth,
le kttcr's nhare in the plot's of 1683,
b«ca permitttH) to hiire tranficribtsd from
l«PiiperOtfJc€(Au!^ust, 1811.)
No. I *
ned. * Written with hit mnj'ties own
^ hfiiMl tiiuching ve dukt* of 3loii*
• mouth.'
' llje liuke of Moiim> desire? lo render
r i!4pttlile of my mercie he munt rendiT
If to Ihe Kecreiiiry, und rciwdve lo leU me
muires, relyififf eni4«rly iif>i>it niy mercjr
If liimself riitiprly to tiiy pleasure.*^
No, U.
Tte{L • Mr. Hecry** own h«od -writing^
• toucb*ic i!»e II. of IVI.'f
Ea^'tie wss jdcHsM this day to aequaint
of the Comicell ihAt fiiiveiii|,' f^ir-
ne diys tioce] imparted to theii» the
.f^f.ti lie hud recfiveil hy the U, of Mon-
• m utid entiie Mihiiii^KJon tw [{.
= .,-, Jsfreupoij he had ^nauii^ him hit
I, ftitd the *'d Duke having sioce jfiven
~ ' I M) t^Ti^^i C«iii«e of ili^pletttiirc? that
forhiihk^o him hin pn^si'tice^ hoi)
I hmi li> drfi^rl ihe Ci»nn K. M. now
ktt to tett tUV l4»Yp^ know tlie ocra*
f ^«oii aft€>r timt ye D» of Motiin'rii
^'-^■^ion of the lale eon^piriict^
Jtid rnyet* an iiiiurrrrlion
"it\ iui»' i*ll kiiowU'd',:e rd Ihe
Pi: 'J I I !tiU{T H, M.) and
»nt« -►.I'ij L u }i ui*d the evidence
title FiiocipiiU Ccmspiratori, Dee I at-
[diftCoveriMg- ttlM»3 diierMs Citt^uin-
t, of the *ayd Cori^pirAcy w'ch H, M.
I Ittmw of htforr, fl. M. loiiud l\mt He-
Nfre 1 prir.td nimmd Hy IVmoos o«»uter-
MtlJ* l>. of Moam'th tbjit t*e deoyM
H|^ luy fuiuHled^e of the Myd Vow
I
llik wmn inaher of preiil turpirixe to
[It expcctiul th»f ye 11. of Mumti 1»y
havio<ir iipfju all occ^i^ii^rtK, aud i^u
fjhif pttv^s;*^ wh ith dol«
nj», *oine are mi snuru 4ui « oiher(»
tv«fh in lh(* ori;riiiu} ; iJiudi' m hM U
I tiraikets, lire wiiUvn in itic lUMr^jtUH
litmU
|i)9 to have bc^ii a firxt drunifht
TiapH It wa« attcrwardf rejected
Dg^ftubbt I tilted*
otter forsaking of that [Dang'erotts Re9tle»6e|
factious Party should ha%e f^liN^ed the world
of his true Itepentmce ; And thew AlepartSn
t*' riy to the Disadvamage ot the saydj
I ' L jnrlgM ft necesjiary ihr tlie aalis^ f
U( tinii ni idl i^iiimI inciif and for ye 1). of Hfoo*]
m*ths vmdicaliun that he sh'd write & Letter ]
to II. ^i. in Cuutrndictiou of Uiea'd [such] Ee> j
porta,
•♦ That the D. of Monm'th did theretfpoaH
write [wai thereupon permitted to write]
L<ecter to H. M. hut auch a one as H. M. c*A]
not approve of ; H M. therefore ordprVI
ther drau^^ht of a letter lo be made drawen ua ]
in Terinefi so agre^ihle to Trueth, and so titled 1
to the D. of Monm'th*s circutnstancea thai]
ther« coutd do ohjedioti to it. [lu so much thall J
this Draught which teing given [Shcw*d] by^
H. M. to the sayd Duke, be took it, be writt
it over wHh his otvn Wad, Ue subscribed it, asd j
Kent It in His Ma*Me,
**That noti%ith<ttM(iding' be had thtix reeeiv'ff^J
writ out and «eut this Letter (m \m own act J
to II, H, yet he came aflerw'ds [not
hiiurii after] and pres«iM H. M. ?ery earnestly t#
have the Ltticr Untik ujrjiju,
** That His M, seeing this, and wondriug^
very much at it adrtsed him seriously to c»oo^
feiiliir vtry uell of what he w»s then deslringf
and coiujv alHtut [n iidit him to take time] ta
dot : and nhvt him li*^r for hie last flt^aolutioa
till the n*»\l moniintf.
**Thti the D ot Monm*th cimeing' aOer*
wards wi^iAHi tivxi tiiurniug lo H. M. and (ler*
sitting in y V ^^anii* Thon . hta And ik%irm H , 1^,
gave bim die lelu^r \w lud wntleiito hiui hack
asfain [and be delivrrLd to H , M.] and the on-
gitt»U drtiMgbt whereby hf h»d wiitt it out
lif^inijf dpmiinded ot biui tie gave it ka( k again
til His lla'lie.
** Ki^ie beini; biffkly diMillllil
with 1 I* r «d FreeetdMig 1m east Mf*
V Ckauibrrittin io ce^iiMtid ftM'tbwith jre wmfi
Duke to depart the court, aud not to come 1^
bib IVeai'ncf .
** That ir Bi. baring ( 1 Cs^isqUi^]
the originaW Dratxgbt abu .,i, .. :.t be openly
mad in CoiiArdl waa |4«ika'd to Ontor tbai tW
«ame logLther w*ih this Relation sh'd be enter ^4
aud remaiu in ye Couaceil D4»oki/*
IQSBl r JASfES IL
Nd.IIl.
jMtbned. 19 Deo. 83.^ flui llft*tiev De-
* dw'oii in Cocmdll whh D. of
* MoDin. & tb« Dnke of Moii-
* moQlb'i Letter to hu Mo'tio.'
Ai the Court at WhildiaU, Dfoember ye ISth
1683.
*^ Hie Me't^ wes this day pleaaed to ae-
^ foaint je Lonfa of je Conncill, that nnde he
ted rmiTod ye Ddlce of Monmouth imo bia
inercy harioff had aererall Reporta, that the
■aid Doke^a senranta and othera from him en-
deavtered to make it beleived that he had not
jMde a CoaftarioB to hii Ma'ty of ye late
Conapiraoy, nor owned ye ahara he bimielf
had in it. Hit Ma'ty had thought fit for ye
Yhldieatioo of ye truth of what ye aaid Duke
had dedared to bimaelf, hia Royall Hi^nea
being' present, to reonire from him m writing,
by way of L're uml'r bia owne hand to ac-
nowledge ' ye iame, which ye aaid I>oke
having refused to do in ye termca that it waa
co'mmled him. Hit ftla'ty waa ao much of-
fended therewith, that be had forbidden him
Hui Pretence^ and co'manded him to ilepart
je Court, and for ye Ibrtber Information of
ym Council directed ye letter that ye aaid
J>uke bad been required to tigne to be entred
m foltowa, and waa pleaaed to decUure that he
idid not intend ye tame ebouM be a aecret ;
* I hare heard of aome reporta of me aa if
' I tibonld have lecaened ye late Plot, and gone
'about to diacredit ye evidence given afflunat
* thoee who have died by Joatice, Your Ila*tf
* and ye Duke know bowingennonsly* I have
* owned y« late Conspiracy, and tbol was not
' conscious of any desigoe against your Ma'-
< ty's life, yet I lament ye having bad so great
* a sbare in ye other part of ye said conspi-
* racy. Sir, I have taken ye liberty, to pot
* this in writing for my owne viu<lication, and
* I beseech you to looke forward and endeavour
' to forget ye ffaults you have forgiven me,
* I will take care never to co'mit any more
* against you, or come within ye danger of
* being again mislead from my duty, but make
* it ye busines of my life to deserve ye pardon
* your Ma'ty bath granted to your dutifull
* Of this Letter there is upon a separate
paper in the Office a draught supposed to be
Uk the hand writing of the Idog. It agrees
with the recital here, except that this word
ingenuously is there spelt ingenioutly. Ex-
cepting these two tlie search now made in the
Paper Office has not produced any article pur-
porting to be designed for the signature of
Monmouth ; though sir John Dalrymple
(Memoirs part 1, Book 1, p. 40, 4to Edition)
tays in a note, * In the Paper Office there are
two copies of the Paper which it waa intended
Monmouth should sign, the one it in tir Leo-
fine Jeakins't band, Md bears very bard upon
MouBoiitb, the other ia u the Idiig'B hand and
bmadi more delicate.'
Argyle. Ontfaeoae:!
the beada of hie vaetuna plaoed on i
bleeding bodiea bmrrath, with an.
« Sic area et aoeptn toanrar.' On the oOml
their heada upon apikaa with an -'iii"n|liu
^ilmbitio makaoMb rapt.' 8ae 4 USmg^
Hktory of Scotland, 166^ Editvn of IBM. . «^
Mr. Seneant Hey wood (Vwdioatioo oftlfe
Fox'a Hntoriod Work, 417. notn.) m^lkm
Dah-ymple't atory (Mem. Pint 1» Book 1, m,
68, 4to EditMNi) of thefonuly leport tbntikw
Jamet mvited himaelf to IteaUbar wMi At
ducheta of Monmenth on the day on wUeh h«
hutband waa to be ezeented, and thatp yjag
admitted in the expaetatioa tint hia Thiit Mp
to introdnoe a pardon for the dnka, he ki^'
haved with fondnoM to bar ehiMran, and d»
Uveredtoheramnt of her gnat ftnnay aa-
fate whkh had laUon to tile crown by her hit*
band'aattaiQiler.* A^ the learned ainlMrad*^'
that, ««in an abatnetoT Royal GtaniB k
hia poateatMNi, it m atatndthat in thn mmtk
of January, 1684-5, 86 and 87 Car. t. a
grant waa made to tM trutteet of Chv umtatt
of 8|pakluiig and Holbech foe 9U years, fro^
the death of bit m^jeaty 'a royal corisort m ib«
rent of 51 per annnm, and alan of *u acri el
land near the Bfewa, and ttaUea built thrnai,
for 99 yeart firom the 15th of Jlogusit l^^^ if
the like rent, for the lifo of the auteh^ «!
Monmouth, for her teparate me, wtib reauift-
den ovur. to her children. And there m ibt
abotract <rf'«iother grant in the aame momfi U
the same trustees,!? all the chattela reid,«ii)i
and cbatteb, < fbrfoited by the dnke of Ikfr
* mouth,* (except the leaaea before
in trust that the trustees * shall convey the
« lease of the bouse, wbkdi the aaid dnka W
* building tor him in Sobo Square, to ilnlhitj)r
* Ward and Andrew Care, upon their paymot
* of 1,S00/. to the dutebess of Monmouth. Aii
« as to the rest of the chattels and gooda shift
* suffer the dutebess to enjoy them to long m
* she lives, with further appointmente ibaMif
* to her children.' But in January, 168541»
a grant is mentioned to have been made to iia
flutcbess of Buccleun^h and her heira, of tbi
?reat house or lodge, and park called Mt«
'ark, and messuages and landa Ijring in fiidt-
mansworth, in the counW of Uerte, or Mtf
thereunto adjoining, * forfeited to hia niajtlQr
* by the attainder of James late duke ofJua^
< mouth.' Whether Moor Park ever had Um
part of the family estate of the dutcbeat k art
stoted. The date of the two first of thaieca-
tries most be incorrect, for the granto are i^p-
posed to have been made in the reign tf
Charles Sd, and six months before Monmonlb^
attainder, possibly they ought to have ban
dated aa of the Januaiy in the anbacqntnt ym^
when the grantof Moor Piwk waa i ' "*
• Ihave
utterly foiie.
totUnkthallWi««rh
lldf)
S JAMES n.
, the toiti Lunky^ mm! ar Willkoi PM-
_ jtMkibnrtMnMtowateh wiienaOyBigfat
md dtty, ftrom the timv of the takiag of dn
Mttd kite rfoke, unfit they bail. Mit credl bin
Mfe ftt Whitehall, ftom wbeaoe he was eoo-
vegredta the Tower.
CoHiaie e^attbat the attaiuder of NoDOMMth
did not take plaGe iw North Britain: be, bow-
ever, ttatei that the poeterity of Mo^nKNUb did
pot ipberit the dokedoon of Bneckughy dee.
until the death of thednefaeaa{la«ho«iaiwe
hafo oeoi, p. 1061^ «Im» hoMon had iMi
granied an mXk mt^ her hiilani)iB IfM,
Aa ui the gfaaidf nliaMay la a ■M»flaili|
wife aa jmnt-teaanta in opeeial toil, aad Ibo
operation In aoeh enwof a»aMM
hn^band^' lifing the wiAi| eaa He;,
learned Ophiian aad'AifaaBaal
Siailbnl.Barony-Cieni aa nf
Colkietion, roL r, f^M 1671, el
Onery, Whalwwibecileal
hrtereit in hia wift^a knded piupeit| f
848. Proceedings against Gilbert Burnet, D. D. afterwards Bt
shop of Salisbury, for High Treason : 3 JauesIL a. A 1687.
[Wodrow's History of the Sufferings of the Church of Soob>
land. Lord Fountainhairs DSecisions of the Lords of Couefl
and Session.*]
CTRIMINAL LETTERS AOiniiT DR. GIL-
BERT BURNET.
JvAM£S» See. To ear fonts, See. hendds, pur-
■wante, maoers, and messengers at arms, oor
■hertt in that parti eotojuncmy and eereralty,
speehdly ooBstitnte, greeting: Porasmooh aa
• Of this Case, Fonntainhall writes :
« April 14, 168r. At Priry Cooncil, there
as a letter rei^ from the kiaj^ against Dr. Gil«
hart Burnet, ordaining an indiotment of treason
to be raised against him, for conversing with
Atyyle, and other forfeited traitors in I^ndon,
HoHand, Sec. Though this wag the pretence,
vet the true quarrel was not so much his printed
Istters of travels, as some papers be had sent
over to both bouses of parliaments, containing
reasona why tbey should not take away the
laws against the JPapists; and a private letter he
had wrote, bearing that he bad beard of, or
aeon at Rome a writ signed by all the popish
princes, and the kinff of England with the rest,
(which certainly is talse) to extirpate the Pro-
isstadts: upon this orderaditlay was raised,
and he was cited to appear on SO days. Tbey
eanoot foifeit him in absence, 1. Because
tbey can only proceed in abaence against per-
duellion, and rising in arms. S. None of the
witnesses used against him, viz. sir John
Cochran, and Waterside hb son, West and
Burn Englishmen, Mr. William Carstaira, and
Mr. Rioliard Baxter mmitters, are to be here
then: but tbey will denounce faim fugitive,
which will opemte the same effect to cut off all
Seolsmen from oonversing with him person-
ally, or commnnicating with liim by lettsrs ;
WMch leave great acandal and oftooe, aa tmid*
iaf to harden him.''
^liiMll. Dr. GilbittBnnMt, aaer«ew
lor the
it ■ hmnUy BMasftnad eeiBpWiMd 1» wi^M
onr rbrht trnaty and famihar oomMlIrt m
John Sabymple thd yovnger, of SMIr, etfii^
feeatey far omr hitereati n|no 4aeiii
Bamet.
That where, natwitibatMMliaf hj ' -
and neta of parKameBt, aad eoMtaatpMiiitf
letteni he wrale ta MlddleleD m May !■«,%
shewing he had tmnsiatedl
threatenmg if tbey insutsd, that hewooMpdli'
lish an apology wfaieh asight diepleaaa imaa*
jesty, and others; which was conaliiiid Wearti
a^nst his native originary prince:, and •§
diet having been continned againat bpn tathe
99th of August, he waa denomioed fiigitifeAi
non -appearance."
As to Burnet's Travels, see 1
ball, 47S.
According to Wodrow, voT. 3, p. 591, ]
when in Scotland in 1683, aaid to the '
of Hamilton, He beliefed it would aefwle
well with Scotland, until we letnraed toMt
Covenant and renewed it.
As to fbrfbitore in abaence, aee p. lOSOy aftth
Volume.
Of these prooeedinga agauMt BaiMtf Wif
row writes aa foUowa :
** Dr. Bumet'a Tigorow appe«MMi
against popery exaqieintsd the Idng aMllii
Jesuits about him, so fbr as to ahewttialr HdH
against him by this naean praoeaa anhMSvB
iu absence, and when out of the iiaUaiMtli
king's own permiarion. And nil tielmrtWf
could do him, waa to bring hiniaaaM^ftfS
rsst of the excsHent nod worthy {miMisil
pretestants, who felt, fai aafarnS digf tatfHi
reached, the fbry of thia wmiod.
««When, hi<
baeiteiatthej
•ert-
r jfrtfifrBte fcTongrncf to yrvor T«>rcts1i1p*8
I'iu the tiiiuibtry, Uiis leads me lo make
umbte adftres!^ 1o your tunlithipf auti by
> hi* lnflJ^'*ity» I l»ave reri*ife<l ailverlts-
friim i5Miula'ti«J, that (be kinjr lia« writ to
fivy cutincil, onltrin^; imp lo be tiroce^d •
linst for bi^rh treastjn aj>aiust his person
DFcnmient, and ibut, (itirMuant to tbiSf
Bn^r's advocate h»« ciied ine to uppear
I If any tbiiiff iti the* world can sur-
■Bnd disorder ine, tliis must Decdii do k ;
TOW mpfj bavt* irritteri more, and preaeh-
BAg^insL all sorts ot* tr«^a9onab!e doc-
I practice's than niysielf^ so all the
p that Have been hhjkIh (if IhUj years,
80 far from ^ tii(% tbut
there has been < « euongb
t liiuU with me, yet ihero bas not matter
jpven 50 Diiich as fur examinatitm,
thirteen years since I came out of
bd J tor these last five years, 1 have
\ much ai mentioneil the commonest
hi mny letter tbsit 1 have written to any
'*" ' ii> I donot mentiounc-tsnf in-
e I kntyw that I need not the
iiit^io. 1 went ont of Kiigland by
i'a approbation, and I have 8tty«*d
Decanse his Majesty expressed his
ke td* my retiiniiuy to it.
tti now upon the p"?-'
OtintrVi and 1 i\ui
^r Holland; but th.
my here, my
kh maiwtly to l v, , IJO'te
\ will never fiepart from the
,>L'ct to ht5 sacrt^d person and
\ hkB ^uvei nmeiit.
s my coming tri tbe^ {lartit {have sol
^^rson, either of tri^^'lutid or Ncot-
i oatlawtnl for treason ; nmi when
tj mv accesisto Lhi'
1 by the
ifiirini^
* I iihalt be infintlely sorry, if any ju*^!*!?*^!!!
that eball paMD upon me in Hcotland, Hbatl
ohligfe me to appear in prtril tor my own de-
fence. For 1 Ciinnot betray iny o\rn inno-
cence 8<j far as to suffer any i' ms
nature to pat>$ upon me, wiiboui -n
apcdogy for mysel/'; in which f ^vill liii iuviied
to nmke a recital of that share I huve had ia
affairs those twenty years by p; * in
which I must mention a vast numi u*
cnlars that t am afraid must be ^^l^i^n iiMui^- to
his majeitty ; and as I will lo<)k u[ion this ai
one of the greatest misfortunes that can
{)066ibly befal me, so with all the duty and
Mimiliiy in the world, 1 beg that I may noi
be driven to it.
* I will not presume to add one word to your
lordship, nor to claim any sort of favour tjfr
protection from you, for I aildress only my
(telf to you as the king's minister for thoee
provinces.
* I am, my Lord, he*
" nds pathetical letter had no cflect. Soon
after, hla indictment or criminul letters came to
his hand. To those he drew up an answer,
evincing clearly his innocence.
*^ Those liis answers the doctor sent inclosed
ID another letter to the ear) of Middleton, which
deservt'S a room here, and is as follows ;
* May It please your Lordship ; — ^The copy
* of the citatiou agfainst me, ban been sent tuc
* out of Scotland since I took the liberty to write
* lait to your lordship ; iim puts me on a sc-
* cond address to you for conveying the inclosed
* answer, which I most liumbly biy down at
^ his majesty's feet. I ani cunhdeat, that the
* falshood of the matters objected to me,. wiU
^ uppear so evident to hi^ majesty, as well as |o
* all the world besides, that he ^vill not oi
* order the nroceedimrs lo be unite disci
iior]
5 JAMES 11. Proceedings agaitisi Dr, OUhert Burnet, [1188
orclajneU, thftt none of our suljjectfl of wliatto- to uller any inhe, sUoderOus, «r
ever degree, etital^, or quality, slmli presume
firisfcke Uftoo hand, privately or pitbltcktVf la
sernmas^ detJainations, or tamiliar conferences,
* )oii|^ a continued displeanitre f Bui mv com-
*■ fort lies in the MriintEs that I have within me,
*ofmy OM^D ir;no<:enGe, so tUui I dure jjppeal
* to Gud, ai I Jr> caw with all duty to bis rice-
« gerent.
* Since lhi» matter is now become so pnbJiCi
* and l^i*t now my nameissn|,'enetally known,
* I muM nut Ue wiuiltug" to my owu iunooence,
' especblly» whi?n not only my life irnd repu-
*■ tation ate struck at, but the reii^ou f uroici^
* h wmmded ihrougU my sides ; therefore till
* I have put in order my memoirs for a larjjer
* work, I find ii Ui some son necessary lo pi iot
* the citation, ti»(,'inher with ihisi answer. But
* I hufi much rutlier have all this prevente<J by
* an eHVct of his maiesity's justice, in orderin;^
* an end to be [lut in tins accuAatiun ; and tliat
* by some act that m;iy be as public a* the cita-
' tion itielf was, nlucli may bear his majesty *s
' being' aatistied with my Innocence as to these
* matters ; bitt if E have still as melancholy an
' answer to Uiij), us \ have had to all the former
* appJicalions I have made, I must maintain
* my innocence the best way t can, in which 1
* will never forcret that vatst duty I owe hit
' majesty, vt^haisoever I may meet with in my
* own particular.
*■ If tliere is any thing", eilher in tlic inclose*!
* p«ipr, or in i\\H letter, that seems a little loo
* vehement, f hope the provocation that I have
* met with w ill be hken ise consirlered ; for
* while my life and rep u la I ion are struck at, and
' while some here are thrpalening' so ht^h, a
* man muit be forgiven to shew that he is not
* ifnile insensible : ibonij^h my duty to the king
' IB proof AL^ainst all tiiat e%er can be done to
* j»rov oke me» yet 1 musst be suffered to treat tlie
' mslruments and procurers of my disgrace,
* who are contrivinjf my destruction, with the
* plaiiiiness that such practices draw from me.
* I will deby primings any thing" Ibr a fiwrt-
* night, Idt 1 see whellier your lordship Is like
* to receive any onler from his majesty lelating-
' to him, who IS, iVlay it please your Lordship,
« vour Uirdship's, Sec— At the Hague, May
* i7th, Old Stde, 1037**
»* When the doctor's letters were altog^elber
neglected, bcfi»re the puhhshinp his opoh>p'y
in print, he sent a third letter to the secretary ^
which hke^ise follows.
* 31 ay it please your lordship :
* I venUtre once more to renew my ad-
' drf'ss^s to your iordiibip, bdore 1 print the
' pajier that i sent you by my last, of the 17 th
* of May, toifelber with the two letters that I
' wrotf7 ^ou f for I fmd it necC'!isary to add tht2»»
' and that it i^o with the rcht to tlie prci».
•* ! uin told, that tjicatadruntft^^^r- 1 ■ !icen
taken upon an expu'ssiion in my , m
* which I wroti% thai by my a;-...,....^ .^iou,
' during tin stay iuttie^ my ailcgnAU«;e was
speeches, to the disdiMM r^m .id^ch, or cofiteiui
of us, our councd or |' >, or to tlic 4|f
honour, hurt, or prrju' us^ or to meMi
* translated from his majesty to the soven-i|pitj
■ of this pmvince, as if this alone was crime
^ enougfh : and I hear that some who hate
*■ been of the iu*ofessiuo of the laur are of ikis
* mitid. I indeed thougltt that uotte wlio cvir
^ pretend to study law, or the general notiooi
* of the intercourse among nations, could mis*
Miikein ^o clear a |ioint. f cautiooed my
*> words HI, as to shew that I cotMiidered tlii
* translation of my allei^iance only as a tem<
* porary thing, during my stay hei^, Au«i
* can any man be so ignorant as to <''^»'i'' - *
' IhiK? alletriance and protection art'
*' their natures reciprocal; since theti : .:
^ ization gives a legal protection, there
* be a retinn of allegiance due upon it, I ilo
^ not deny hut the roi>l of natural altrgtaios
* remains, but it is certainly under a vusjka^
*■ sion, while the naturatizeil person enjovs the
* protection of the prince or ^tate tht^t has s»
* reccivcfl him, I kitow what a crime it hd
* been if 1 hati beci>mc naturalized lo any still
» in war with the king ; but when it wa« i
* state that ia in alliance with him, and ^' i
* it was ujwn sojuiit a ground as my l»r»; .; »
'be married and settlfHl in this siii r, i^ \i
* could be no crime in me to desir* ii, »ii i
*■ having obtained it, am not a lit\le «uias«ilf
* to hear any are so little convernant in ikc
* law of nations, as to t^ke exceptions at cn^
( words. Our Siiviour has said, * that a laaa
^ cannot serve two masters :' and the nature ol'
* things says, that a man cannot Ih^ ut tli«
* same time under two allcj^iances,
* jesty, by uatumlizingf the earl of W . u,
* anil many others of the French natiuft
* well w hilt a right this gives him to tbi
* legiance, which, no doubt. Ire as
* many others have sworn, and this is a
* latiog their allegiance with a \^ itncfm.
*> lord was to have commanded the trttopc t\M
» werei»cnt into Flaudci^ in ItiT" M bif
* natural prince; and yetthot^- m of
* France are high upon tl»e p*M..in
^ reiguty, it was never so much na pr«
* that this was a crime. And it U ii.i
* interest of all princes, to
* those whom they reccivL
* by naturajizing* them, {iuwe wi i
^ they shouhl give protection to ao n <
* and agents lor another prince) tit !
* not very giM*d ground |o assure uj. ,
* have nretcndrd to make a crime out^ wiifili*
' I could not easily believe it.
* JUy lord, this is the b^ • " " ,
* p^^ y^^^ lonlship upon
' being now a month ^
» dress to you, I mu
* solved to carry *' ■
•and Mr. DWf
* and the lhrcatti«;.|^ - ^. ^...-. *■. .., - t -,;.
* aien, aaake m« ^'uiidudis ikai mB my
1
J&r ffigh Treason^
rtairt «ir e.^fnte byif<jne, present* or tn
liuif^ nnt^er ihe jititn o> tieaili, titiii con-
i»f moveabii's. Auil hy ihe 10 act, 10
. 6, it b HUittite QtiiJ onlainecl, thai dl
ai1clres»es to liU IVI-ai^eKtY, are like la
\t> other cH'tTt but rhis, thdt 1 ha%e done
;y ht lUiirn, !>i> tbat^ it s«*einBt 1 am to
;eii in Scf)tl&mL ] am sorry for it, be**
fumit cnjfii^e me in a defence oi"
I mvaii, a jiibti6catiou of my oii'a
tee, wliidi 1 ^o to much ag^invt my
but God and inao see thul 1 am fon^
and no threatening^ of any here will
me, lor j wilt do that which 1 think
to day, thoiip^h 1 were sure
d Ibfitto Hiorro^v. But to
II iikijiiiriit of my lii'e, i ujU pay all
d fhU lily to his Majesty*^ — 31y lord,
vfrilh all iiosaiblo rcs[>ecls, your lord-
Sec'
le Hague, June 6, O. S. 1087/
in-line the doctor ^ets a tiew citatioo,
|oe 10, tnn«tly upon his 6r6t letter to
rvtmry. Thus* every tbiiiK' was im-
igitnst tlie rUH!tor and other worthy
tiii ihii period, and lurneil to i reason
it of eritoesf. Id tiu* citation there
I law riled ; and in jnw such a ci-
ijtd s I St hitu.
io %* Hi man, when
Coini Lpv Ins tivvii ruiiitirynieu hi ab-
ad this tt^i^Actiuo, that to eiirly oa
^timc before, be foresaw, and uiudu
^ is aspreealile to ilic taking* \]\tnx
ant sticoeesion, in the tlieu il-
and now royal fauidy of Brunawii'k
ver ; atMl undir uU Uie discourat/e-
liad at I liearl was plodding
upon whui ^ -1.' mi^ht do for the
I of the holv retonnaliurt and prntestant
so much ut h[^ hrnrt ccav when po-
I imiutiliii ioce his
iikin(^ Uei _ jo to the
K in his obi n^c i^c h«iil a cA^ugratnlatory
from Ihe H»oov»nan itiinjsiei% acktiow-
miir to be the ti rat per-
dij»tatit pro!i)it*ct of that
tiurn or f^naira to him, and by him
' he elector,
ajje the
il
.■^ and conresjjond-
uud Jihore of
>id!i difoounce
kr hun lu Li; yul io tin- horn/
«crved no tiiore about him lo the
nnl been Ibooghi iieoGBMiry to act
ii thde chargea ■llegcd
A,D, 1687- n^W
our nubjfcta contain themselves ift < ^,
mid difiiful obedience to u;^, our l it
and authority ; uud that none of theiu |(ieMiiue
or lake upon hand publicly to decluini, or pri*
in it appear to be compreliended ia the Cn*
miual Lettera*
Mr, Justice Bornet^ in the " Life^' which ht
pnbbsbed of bis feiher the Bishop, R^vet
this account of these proceedings 3gam!»l hiui ;,
" The high favour abewn him at the Hujjue,
alarmed king James, who was much iocenhed
against him, i\tr the accotmt he had printed of
bis Travels } in which he had so Rtroo^ly dis-
tditycd the miseries those nations groan undifr,,
wiiere Popery and arbitrary power prevuii^
that it seemed to have a sensible ettect on theT
people of Engrlond. The kiu^ \¥t^»tctuosr*
vere letters^ a^^aiost him to tbe j"" - - -- • f*
(lrun|*e; and when the marq;iis »•
«^'^ sent envoy to Holland, he U^v. _. .^. io
enter upon no other uiaiter <d treaty, uatdl oin*
author was first forbid the court there ; whiih,
at his impui'toriity, was done ; but hcconiinunl
to be trusted and employed in the same iruinner
as before; iiuiewyn, Fagcl^aud the rest of tbt
Dutch miniicters ctitisiduii^ biin daily.
*■*■ The report, that he was then upon the
point of marrying a considerable ibrtune at the
ils^ue, huviug^ reached the l^ni^lish court ; m
hopes to divert this, a propecuiiou oniigli-trea-
soD was set on toot a|faiost Ipm in SScotiutid.
Be tore notice of this prosecution came to the
States, he had been oattiralized in order to his
niajiiiige : When therefore he undertook, iu a
tetter to the earl of Miiklktoun, lo unswer all
the matters laid to his charj^e, he added, That
being' now naturalizetl in llulbiid, his allegi-
ance during bis stay there, was traOBicrred
troMi his majesty to ihe States* This eatprev-
sion was immediately laid hold of. So thai
dropppiug the Ibrme'r prosecution, they now
proceeded against him tor these woida, a«
yrudty of hijBfti- treason ; and a seuteucc «f ou«»
lawiy passed Mj<oo liiiu. I>*Albcvil!e tbereupou
first demanded Him to be dehvered up ; and
when he saw this deipand wus like to p*u%c
inclfectuid. he iosit»ted that he shuubh Ufr ba-
nishefl tbe nevi n ' fi
artUHc in the I ^
tiuiJ3>, iihich ixiniin a* n m l^ ^ihm miimit,*,
tliou^ih it could not be. pretended that he cmtoo
11 .iL... ' fluT of Lhfsode^riptions. TheMJ»*i-<
.wtrr to the liiilish envoy *s men
, I.Kit uH Ur* Buriitt, by uaturalt/
* was hecotne a subfecl of their own, tliey
* coiihj not banish liiin, unless some <'nme vrtm
* lei,^Hy urovi'd upon hnu ; if his Bnitimue
' maj«*sty had any thing to lay to im char^fe,
' they would coin I it'l him |o luiswer il ; and if
* his judires pninounced hitu guilty, they
* would punish hitu accoidinji^ to tluir lawn ;
* thui wa* ull that in reason <»r justice ixmVt he
» demoudeil of them/ As tins answer put lui
tad to all farther apptii^tioo lo the Stulea, mo i|
l^ave oecaMoo to lofiie uowurraaiable dc'tigua
nil] 3 JAMES IL
YAiel^ U> sfM?iik or viriie any purpose of re-
pruacU w slandcT af^amiit gur (i«rs4^ii, estate or
l^emaieDt, or to deprave uur t^ws and acts
of ItfUJianiftiCt or niisicoustrue our pruceniiD^,
wUer^liy a»y dijilikc mny be moved l>etwixl us,
oor noliUity'aud luving sybjects^ in (inie coin-
iugt uudt^i' lite pam ot dcatti ; aoil that tbe»e
tbtt da ID ibe coiiirnry ^hull b« reputed its it;-
ditUms and u icked iiistnimeutj, <^ucinie5 lo Ub»,
and the etiamitm Wfll of ibis reiittn^ aud tbat
the said patti ut' dctitb fhull be inflicted upon
ibeiu tvilii lil) rigour, in example ut' others.
Auil by tbe srconit ivct, 2 sesi;, of the 1 parL of
Iim(f C.'bar* 2, ve and our estates of parliament
da ^'ckr«^ Ibul in tbesu pwiiions tbat it is law-
t'ullor syAijacU^ ufon pretence vi' retbrmation,
or any olhrr ?•■.'! ^m.-.* Mrhatso merer, to eut<*r
i u to iea lilies IK s, or to take up arm^
against u*^ «r l... .umissionate by us, or to
put iimitatiiina upon their dne obeaience and
ulleffiance^ are rebclUcnis unit treasonable ; and
lliot all pertsons who sbalU by writing-^ prearJi*
iic*} *»r other nmlicioiiH nnd adri?ed 8[>eaktne',
eiapnm these tiea^ionaM iis^ ahall be
]lroG0e<le«t against, and ^ truiturs, and
vhull siilfer torfeiture nt UU'^ UmiM, and goods ;
likeas^ by the 3 act, 1 parU king Jam. l.and
57 act of bis £ parh and hy I he 9 act of 13
]uH. king Jam. $, and t4i act^ 12 pad. Jam.
G^ und divers and sundry tether laws and achd of
fiarliament of this our'kingilDHi, it is declareil
ttgh treiuion <or any of our »ut jecta to re^et,
iihpply, or iatercomraune with declared or for-
tsitfedf traitors, or give them meat, drink, house,
iwrbeAiT, or any relief or comfort ; and if they
dn in tke contrary, they are to undergo the
^iin« fiaina the nmd treilors ar rebeU ought
of seiiin^kis pei^nn, and even destroying him, if
he coi&ld not be taken. Uf this our nuthor had
iKitio^^f eii hiin iruin Jicvernl bandii, and one
in partioulur, liy «bp fntloiving letter from cap-
tBin Raxtnr, n m of unrjuestiuoed hn-
tium.and n-p i lose father was at that
time at£ ward tu tiji tjnUe of Ormond's tstate.
* Ilijgue, liie^rch 14, 1683. ,
: * Yhsnt Sir ;— 'Tiioiigit I have no aeqiaaiiit*
' nxic^t lAith y<my yd the estirrin 1 have fur
*'yv»tilr character, aiid the benefit 1 have re -
* *e»^*'* *■' vMur works, uhlij^c-s luo to ted you
Mb D^s agniiifll yiiu in England. I
''4ia r niber day to go into the scnre-
* ta' , where 1 wkw an order for three
' li) , Hind, tu be pmd the person, thai
^ ahah'dtiatnty you. 1 cuidtl hardly bvUeve
* fiTiy ey es , 1 1 uj t' I sa iv t he pa j »er, it s^^em e«i sn
WranfTe to met rhi»irouminnicBted]n private
^0|o my Inrd Oiiory, U'ho ttdd me, it wnii true,
*. tor he Itad ir from prmce George, My Iwd
* ide»inMl me in be pnvale in the lhiiig,"idl I
* came to llullauil, mni then, if I pleuHcd^ to
* l«H yon of it Sir, 1 mu your fneud^ and
* my advice to yon ja, to <uke an especrai care
* o4 yourself, for no df)iibc hut that great nmt
'will meet with a niprrcnary hand. 8ir, yon
^ abud never want a friend, wh«re 1 am.' >
Proeeedinga mgoinst Br. QUheH Bunuit 01
lo havtf sMlAiiicd, if ihwff bml to
bended,
NeiertlielesSt U i« of v«(it^« tt«t f
doctor Gdbcrt liamflt, «ii«kii|g ctf lii I
GoiJ, conseje-ncse, atid act^ae of doty,!
and biyaity to us his smtcrnpi
prince,'upon tlie iMfeiy ckl mhom
mumteuauce of wboae*6x»tn«i^ i
princely power, tlie
q\i ietnesK of tiiir 8iily««
tidiously and trtwmiaaUy ptaumal Id i
and is guilty ol' lite criitiea
in so far as, Architel4 UMUpfttU i
earl of Argyir* James Stitaft mq
James Stuart^ «oo*e liflne
burgh, Mr. Robert l?€Tgumom mam\mr ^\
lain 10 the late earl tpt ^l«f)abary, l\m\
Stuart of CnlfencM, II ilJi^in DttdiMiDf «» I
time of Westsiuiski, Mr KnL.ft Mima i
time clerk to our j art, md i
other re belfi and trail 1 ;| moM |
our bi^h courts of |iarUaificm t and jlitu
forieited fur the crtities of' treasaci, and I
our kingdi»ni of EoglaiHl* and la
Flandeni, Geneva^ ami ;$eTf*rtti mber f
aatd DoLtor Gilbert 1 ' rv| upQ
iioeond, and reitwiirtv t tti^ taoii^il
January, 1^ ' tncdt i
iheytars arJaBDtff,ft|
bruary, j^ianii >aveK.^I
respond, and i b ik n^l
Archibald lateentj vi ti^ > le, » Mridlnliw|
and tliat nithio tbe »iaid liodor itamtil
d^ellmg- house, in LincoIn'a^itiQ.fifl^ i
ttie Plough-inn in Our city of Ia/^ • |
suburba thereof^ or some oibrr
within our kingdom of
slandered and rpbro.uhttL
hi the di»«;
vermnent, /
and reoeived au.^wer« Ui
forfeited truiior, when !»
el<;evihci*e, exprenly caotrair>' lu hi« ikfva' |
aUe^iimce to vn hm aovc^rei^ jord aad ii
And si k like, njn ^^i^ aiHXMrd, I
days of the mi. l^y, Jimc. Ja
gtwt, Heptamber, ociob«r, NtfteinWr, i
eeml>er, 1686, and upoa tlie fiiat, mvh^i^
third days of tbe montbsof Jaunary^ ¥tA
and renianeiit months of the ymr HMw*'
f' r ^ -' tm! third days ot thr tomnli^ I
iiy, March, 16Sr>«va^ii' '
vn .... „. , .. ^ay or uiher of the m^\m^ ,
or yeahai the hmni l>oGlor Gilbert BarM ** |
mr»!»t treasonably rebel, iiutJ(ilt«.<<V nrric^
ed, tviuvcrifrt, and n
did favourh Uj rtn* sn i
be>t Fer|f'< ^i^mm
holme, an<: ifene
tors tind n
sfteMam^ t^H?Ta, ar
ntlier piut 'l)«rlai«l
elscwhcfLv itTvad
mlspeeeiii
person, a
sad pemtsia
part«tlB|
£nglaiiift, 4^^ I
in \bit^\
in ?»itr[i iiriniiviiiit
IIS and ouri
\
tns]
,for FU^h Traamii
\
Mnc tii" «over#igii lord and prince) exfrressly
c^uh'nry to Itii artpgianci? and duly. By coni-
Miittifii^ of (lie v^hieli crimes abov« tiK'citi^:;^!^ or
•iiher of iheni, Uie said llncti^r Burnet is
giidty and ttdijable of ilie crime of liij^'li treu*
fOB, flod is art nrid pari titcrt of, which bein^'
found by any inf|it*'si, he onijht ajid shoutd
•nflcr forfeiture of Ufe^ laud, niid ^oods, to tbe
Morror aud eieample of otbcrs lo commit the like
liereafter* Otir wdl is theretbret and %ve chari(e
y&n vtrtLilly and eomoiandi that inconlinent,
itoiiur lertCT seen, ye pass^ and in our natiie
and authority, command and char^ tfie said
l)oct(n- Gilbert Burnet above complained upon,
I13' soniid of triimpet, with displayeil co^t, unrl
ttsitig other suleT on ities necessary, to come and
And snfticient caution and surety, acied in our
books of adjournal, that he slvAi compear be-
Jbre our lords jnsli ce- general, justice clerk, and
eommiisioners of jufitieiury , within the Totboolh
or criniinal Court- house of Kdinburg-h, the 27 th
illy of June next to come, in the hour of cau«e»
there to imderly the laiv liir the crimes above-
mentioned, and tiiat under the pains contained
ill the new acts of parhameut ; and that ye
eliar^t*^ liim [>eTSoniilly, if he enn be appre-
fcended, and failing thereof, at Jiis flweiiint^^-
hontm, ond hy open procianrntion at the inarket-
erossof the head burgh of the shire, stewartry,
peg^atity , and other jtirisdiction where tin tlwelU,
to come and find the ?iaid surety acted in man-
lier lorejiaid, within six days^ if he be uitliin
thia our kingdom ; and if be be out wiib the
tfBine, that ye command and charGpe him in
lnaQDer turesiid, by optn proclnniation at the
tABfket'Cms^ of Kdinbui-gii, piiT und shore of
1/eith, to cocne and find the said surcny within
Uiwantiire days next after he is cbm-^ed by
y«l ilieretti, nn<Wr tbe pain of rebelhnn, and
ptiTthi|r of him to our horn* Which six and
threescore ilnys re>j>ectively \mwj; hypast, and
the said surety not h^in^ tbumi, nor no intinia-
litin made hy him 10 you of the tiudin^ tliere-
of, liiat ye ificonlinpnt tberpatkr denounce him
finr rebel, and put bun to our horn, esiebeat anri
bring* in all hist moTeables, gooilH und frenr to
«>or Uite, tor fiin ronteniption and di9obedi(Tnci\
And if he come and find thei;aid surety, iolt*
miion bein^ always made by bini to you of
lll# fiodint? thereof, that summons and mfisize
hereto, not exctceiting tbe number of 45 per-
flona, t«»jrether with such witnesaea uln bejit
know the verity of the prcmiaaM, wbose names
(ball be ^iven you in roll, solltcrilied by tbe
iaid rouiplniner, ilk per?ioii under tbe pain of
100 merks. And lliai \(.\ w r,hin 1^ days alter
bits dpouniMation fi^r not tiuriiujO^ of CHUtiim,
4NiUNe reuistrnte, thir our If iters, with your
CiXeenlions thereof, in our books of adjournal,
€onb»rm to the act of parliament made therea-
ntni^ iJi!tronhug- lo justicct as ye will answer to
9Stheieupon. I'he Hbicb to do commits to
iN>tt nonjuuctJy and w^verally our full |M»vter,
ly tbir <»or letters, dtdivermaf iheni to bf by
Yno tittty executed, and indorsed apiin to the
bv#r«^Qifen under our srg^net^at Edinburg'h,
iMtVliMlk yi^ of A^fhl^ &ti4 4>f our reign the
i.v A. D- 1687. [Ml*
tbird year, 16ffT, — * Ex deliberatione dtmrkis*
' ruuQ conyntisBlonariorum juHticiani/
Tnn. Gordon*
Tbe Witnesses a^inst Doclnr tiilliert Burnet
are, Mr. William Carstairs, preacher, Uobert
liaird, merchant in Holland, Mr. Richard
Ijarler, preacher, sir J4iim Cochrati of Dchil-
iree, John Cothran of Walei*side, Mr. RoUtit
West, lawier, Eni^liiihman, Mr. Zacb, Burn,
brewer, English luan .
DH. BURNET'^ ANSWER.
riook upon it ai a partieular tnisfortum^
tbat I am forced to answer a citation that if
inade in his ojajraty's name, wiiicb will be e?er
BO aacred witb me, that notbm|^ but tii& sennit
of an iudispensaye duty could draw fi om ma
any tbtnij^ ibul louka like a contending witli
that sublime character.
I owe the defence i}f my own iniH»cence, and
nf my reputation and file, to myself ; 1 ow«
aho to ah my kindred and friends, to my re-
ligion, aa I atu a Cbrisiian and n l^oteslant^
aod to my prolesBton as 1 am a churclinntn,
and above all lo bia majesty as L am his born
aubject, such a f indication of my loyalty and
integrity, aa may make it appear, thai tiy oot
going* to Hcotbnd, acoordnff to the tenor ai"
this cttaUoD, does not tlow irom any »ense of
^uilt or t^ar, but merely frnm those enga^^^
inents under which I am in Holland.
I hope my contrailictin^ or refuting' tli«
matters of fact set forlii to tbi» cilauun, ftball
not be so inalictou»ly perverted by an} , a« if I
meant eitber to reflect on bis majesty for
writing to bis council of Bcutland, orderiin^ this
citation to be made, or on Uis advotuitu tor
fiTnninfir it, antl iastbai? it out : But as I a c-
knowK dge, that upon tbe iotorniaUon it seema
was offered of those matten? here hiid agrninst
me, it was i^ery reasonnble for his majesty tn
order justice to be done upon me ; so bis adro-
cate, in wbose bands ibose inform ationa it
seems are now pat, had all possible r«asoo to
lay them ii^inst me, as be baa done ; and
tbere^tii-e I will not pretend to make any ex-
ception to the laws end acts ot parliament set
fonb in tbe limt part of lb is citation ; but 1 will
only answer tbe matters of tact laid to my
cbary-e, and whatsoever i say concerning them,
dotfs only belong to my talse accusers ; aud
tlieretore' I hope they ^nll not be lookwl on as
thinp; in wliicb even bis majesty's adrocate,
biit much less bis itaci-ed majesty is any way
concerned,
I am first accused tbriiavlug^een,eonver!»ed
with, and bold corresponiietice with tbe iate
earl of Ar^fyle ; and U* luake this appear tbe
more probable, llie pluc^e is markt^l veiy cri*-
ticnd) where I livifd, ond where, aa it is pre-
leuiii'd, we met: But it is now aluiuat two
yt^'urs smte the late Arg^ylc was taken, and
Mitfered, and that ti lull account was bad of all
bis i»ecret practices, m all which I buTe not
been Ottice so mucU aa iDentiooedy tbou^U tt«a
1115]
5 JAMES 11. Proceedings ngainsi Dr, Giiiert Btirttetf
now & ycjir since I bafe lived ami preaclied
openly m these proriuces, Tlie truth is, ihat
tor nine years litfbie the late earl of Argyle'a
Ibrftiiiure, 1 bad no surtof'corresiioatteuce with
hlro, nor did ( ever see him ftmce the year
1676. After his escape out of prison, I nefer
fliw bim, nor wrote to him, nor beard from
btio, nor hud I any sort of commerce with him,
directly nor indirectly i the circumstance of my
iiouse, and ll>c pluce wherein I Ii?ed is addeJ,
to make the lliin;^ look somewhat prnbahte:
But thouijh it is very easy to know where J
Jiverf, attd i having dwelt id Linculn-inu-tieids
the space of seven vears, it was no hard matter
to add this purticoUr *, yet so inconsiderate is
the ma -ice of my priemies^ that even in thi« it
Jeud.s them out ol the x\ ay ; tor soon after Ar-
g^\k'9 e^bpe, nud dnruig the stay that, as is
. belitved, he mude in Liondrm, i had removed
from Lmci*hi8'iijn>tiehls into Hrookbuildiiijirs^
this inakeii me i^uesB at the itilormer, who saw
tne ohen in the one house, but never in the
iitber ; and )«tt*veii he who ba*i lietinytd all
thut ever putst between u*i, has not impudence
aooui^li 10 chart^i? me with the Irastdtsloynky,
tliotiirh I coiicf^alcti very lew of my thuuj^bla
Iroin him.
With this of my seeing the late Ai^i^yle, the
Article of tht' scaiidafous ikod trea:wHuitjk^ ^ortk,
r pretended to 1' ' to him, a;:;^iiiiist
nil mujvMyU , i ninent, iA\s. to
lhci<roiMnl; I X iiiai this cantiot he
provL'd^ fiinee '.ad ; and ti is tini prt?-
* ^ * .1. .♦ . ^ i„t'i« utttn?*l in the
I s, nor h it needful to
,.i... ..,,.. ,...»...,..,., .,„s then only a subject,
no that »ny won is spoken of him at thatume
cannot amotiut to treason ; but I can appeal
*to all these wttb whom 1 have ever converted^
-if (hey have tver heard me tail in the respcet I
«wed the Uinqr: and I cm ea&ily In'ing' manv
witnesses, tVoui several parts of iuirope^ of the
leal with which I have on all occasions ex-
pr«B8wl myself on those b-nhjects; and that nouf^
of aJl those bard words that havobet^ so trrcly
bestowed on me has made me jfbigel my duly
in the least.
I am in tlie next place accused of coiTea-
--- ' ' with Jaraet Stuart, Mr. Koiiert Fer-
I ho mas Stuart, VVilliara Denholm, and
..**. *t .i>frt IVlaniij, since my' *^ "ut of
£ng-1and ; and that I have i t tbeui
xintl .,jii.,Iim1 them in foreiefii p.. - , , -* .*cuhirjy
Amsterdam, 1 toll trdam, I^ydeo,
. I n, or in some other parts within
the Netherlands. This article i« m> very ill
laid in all iH branches, that it shews* my ene-
i bai^e Tcry iH informations concernifi(f my
t general iii^fpiaintunce, since, though thene
ure amon^t thoise who are condemned Ibr
treason, Mime that are of uiy kindred and an-
cient acfjiLuntance, they have licre ca*<t toge-
ther a company of men, who are oil (.fatnes
8tuurt only iix<>epted) aljaolulel? n ' lo
tnc, whom I never saw, and %vi J
never exchanj^ctl one word in my ^vimM mm , ?i%
t flkr is I C4in rcmninb«r; one oi' tbim, l>h:
now
i
Uobert Mariin, was, as I ever tmdcrstood
dead al>ove a y^^ *- f-
ior i»iiit.i» Stuan,
with hmi twejiiy .
commerce with him ii
leas it waa timt t sa^
and that was several years bt
any aeuteucc pfist on bim : my
my motion ih, for 1 have not been m lirerfa
ibese twenty three vears. I retried in the
Hague upon my comm^ into H" nme
I was willing' to be under the n of
bis majesty *J4 envoy ; and 1 cluj>ic tho pUc<^
the rather, because at was known that nuneof
those that lay under sentences (.«' it. I
have never gone to Amstenlam cc
secret, and huvc never been theit
private affairs, and that never aS '
two at a time, and i Imvc licen hu . .^
while that I was in tlie^e places that I ,
there was not room Icli even fur calunip v
in ibe last plare, ii is ^anl that I lmv«
liukly and avowedly nttc^ied several s[
41 nd [lositions to tlin (tns<lftm ot bi^ majesty^
ptTson. authority, and ^ovt*mnient, :niH tltat t
coti^itkoe and |-eij»ifit in ilwse <r< • niC»
ticrH ; thi^ is ko geciemlly asMi i itti
ettou|»h tor me Ui *ia>, it is po^ui^ ^U iAimi
hnt 1 have yet dearer evidcncr to ibecmitiary
of ihirt ; 1 have preached :i ' .i rmon to
the liuf;ue, UL^inst all tit d'ictriucs
find pnicticc*5, sifii! ■ ' ' r hift*
fnlntj«s of sultjLMt itdr
sovrreujn, upon tin aivutmi^ -... ,v ^.^^Mji, , uuil I
have iitunjtiimed this so ott bo;b in public anil
private, that 1 c<mld, il 1 thought U convcnicat,
give prorda of it, that ^ould make all my ene-
mies be atbarned of their injustice and malio^
I'be witnesses cit^d a^ramst me are, titMi, w
John Cochtnn, whom 1 have not seen abavo
the&c four years last past, and wah wh«ini I
have bad no sort ot commerce sinrt- ( ^aw hnfl«
li IS almost two years since he h 'im,
so it is [irohable he then iidd ni'^ Um
ever tohl cuoccming n»c 5 and it i2i 1
that the matter woiibl have bet?u lei I
ing all this while, if he bin I
my prejudice. I confess I
(piainted with hirn ' ' >
ot honour, and 1
honour and in luv >' -. .u-t ! i- ':,-dy
rt lease him tromatl ti u<l»
ship and c<vT'Hl*riiH aaf
decldr« evti trn
us ; tor ihei- ';;ht
to own, thai as oit as wv t^^ uifrf
that were compliiine*! of in > . die
occasion to r«'penl my opinion v of
subjects, to Hubmil and Ufnv alt t 1 imi-
Iraliona ihat mii*bt lie in ti* 'Viit, but
never to rise in arms itfM^i « 1, The
next witness is lii
once or twice, an
uito a I
my pt^
bim to liif fiuUiv or ,1 ii »n ii>unii. > »• v
arc Mr. West and Nr. Uiurnt wli I il# 1
1C>-
juiTi luti! av ;t lima
Nflf SO %Aikjr tn lav
I117J
far High T'reamn.
A. n, 1G87.
cms
I
not know ; after fliem come 1^1 r, Carstaira and
Mr» Bairil, whose faces I ktiin* m»ifit]»er. It
aeeius ibeiie are the witnesses lo be IahI agaitisl
me, for the articl*? relutinpr to x\\t NetheriatiUs ;
t|>ut as 1 am ^thuily a stranger to Mr. Carstairs,
vu 1 tb not St* much »» know if ibtre l»e sucli a
I }H*rsori ill b«iji(^as Mr. Baxter ; 1 have bad no
I c<jrre-'*tM>mlence at all with bim, these two and
I twefity ^earSi uniess it w^^^ tliat otice or ttvice
L I luei hnii by accident, in a visit in a third
^ plaLL% and ibat once, ahout six years ago, I
Weut to discourse with him i-oncernin^ a mai-
ler of biiitory, hi wliich we ditferwl ; but as aH
our conversation at Ibat time, was in the pre-
teoce of fti>n)e witt)i^«i^, ao il waa not at all
relating to matters ot state.
And now i have ffone over al! the mattpr that
it laid a^rainst me in tliia citation, and bnve
made such reflection!* both on tbe facts thai
*re w llMdgf rd, amt ibe witnesses that are named,
" as will, ] b II pe, satisfy even %i\y enemies them -
L ielveit, of the fabliood und iiijustice af the*e
• itiforinationi» ; so that 1 jiresiiuie so far on bis
I tnajeHtv's justice^ aK 10 ^.^[►H€l thai all the in-
■ lli^nation uhich is kimUkd a|;Liiust Die, will be
l%irn*tl ujiou my tiilse acciisprs.
I ■ To all tbis 1 will aild one thti\t;^ fnrlber, for
f |QQ> jnsiitii.atinn, ibough 1 am lully satisfied it
r ia til at ^vbieh 1 am not obi i'^ed lo do, and
r wbich, if 1 were in otbcr circumstances, 1
J woidd not ilo myself, as I would advise no
' olber miiin to do it: For i I is a part of that
right that eiery man has, to preserve hirtjseli'
Eliy \k\\ lawtul ivuy.s, tliat he do not accuse bitn-
•elf, and, by €on!*e4|ueiice, that he do not jnircfc
himsf [| by imlb. of mutters oUiecled tn him ;
r and i do uut so well a|jprove of the courts of
P inquisition, as to jE^ive coniitenuDcc to a prac-
f tjce which was first set on foot by them, of
( reijuirinf^ men to answer ujkiu oath to matters
I ebjei'ted to tbei«. If I were not a churchman,
1 wontd not do this w hich I am about to do, as
1 declare I will never do it aiifain, let my ene-
mies lay to iiiy c har^e what they please ; but
the rci;^ard I b^ve to this sacred function to
I w hich I am dedicaud, m«k(-s rae now, once
for till, offer ibis solemn pur^ution of myself. I
I mtes* tin* sjreai Goil, the searcher of alflbini^s,
I andlhejudiie of all men, that all tbe matter*
t 111 faci laid 10 my chiirjif^e in tbis eit.^tiou, ere
I utU'Hy tr«'****ndU'j>is ami absolutely false. Tbb
1 am reail\ to runlirru with my corpora) oatb,
and to I eceivc the hacrament upon it.
* Anil now 1 hope I have t^uid enoufrh to aa-
' tisfy los mnjtsty conrerninj; uiy int»occnce, so
ilmt I am i.«^riHdcnt he >vdl not only diHcliari;e
all (uitber pruceednjops a|ijaui!*^t me iiiKin lbij»
acciisiiti n, but tbut be will e,x press hia royal
ijispleiiiiui>* asiaioKl niy fulse uccu;>en» : but if
iiie po%v4r of uiy cneuiies, and their crt'dit
I with luy I'Majesity, is >i,\\\ so ^reat, Ibut tliU
Diati' r iihalt be carried i\i\\.\itr^ and that ad<
vanlii'j^e ^ili.dl be t;ikun from my not ajijieaiin^
' in ^^i-otland, to proceeil to a sentf^nee »<(iiiost
me, wbah some brutal men no^vinthf JJa^ue.
arc lbreaU'om£^ helt>re-baad, tti;U they will
execute it, 1 ihcii tuaJu: my luo^i bumbk aji-
fveal to ih« ^cal God» tbe king* of kings, who
knoxvB my miiocence* and to %vliom my blocKl
will cry lor vengeance against all ihut inuy be 5
any way couccrucd in ibe sbeddtiig' of it : he'
will, at lite g'reat day, judq^e all men rigb-
teously, without respect of persons ; it is t<l 1
him Ibat 1 ilee, who, 1 arn sure, will I tear me«! J
Judge me, U God, according^ 10 the tute*
g:rity ibat is in me. Gilbert Burnet* '
At Hague in Holland, 17 I^lay , 0. 8. imi* <
Dr. Bubnet*s Secokd CrrATiojf,
** Jatnes, by lb e grace of God, he. greeting,'
Fo' . smetkle as il is humbly meant or com^
plained to us, by our ri|>ht trusty and iiamiljaf '
counsellor, sir John Dairy mple the younger of J
8tair, our advocate lor our interest, upon Dr^j
Gilbert Burnet: Thai where, by ibe commnUt]
laWf by the acts of parliament and tbe muni^ |
cipal laws of ibis kingdom, the dechuingamil
impugniuf^ our sovereign authority, or putting!
trea^unal^le limitations upon ibe prerogatives]
ot our crown, upon the native allegiance du#|
by any of our suojects, born Scotsmen, whe^ J
ther rcaidinsT within our dominions or i>ot, ar
declared to l)e hi^b -treason and punishable bjf i
the paiuH due and determined in ibe law foe j
treason. Nevertheless il is of verity, thai Dr
Gilbert Burnet, wbo is a Scotsman by birlli and
education, being cited at the pier and shore < '
Leith, at the instant e of our advocale, for m
veral treasonable crimes, to underly tbe JaWi^l
by virtue of particular command from us, di^j
rect to tlie lords oi' our privy council, and
act of otir snid privy eonncil hercu|ion, ot^J
dering our advocate to intent tbe process ; in^ I
steail id appearing' belure the lords of jusliciary^l
Dr Gilbert Burnet did write and subscribe 1
letter, dated at the Ua^ne ttie 3d day of Mawl
last, directed for tbe carl of Middlcton, one oc|
our principal secretaries of stale for our king^
dom of £n£rland: In the wbich tbe said D9C'9J
tor shews, thai in respect the aifainfof the united |
provinces fat) to bis lordsibip's share in the mi^ j
nistry, therefore he mukes the tcllov%iug^ ad^j
dresses to his lordship, and by huu to us, and
gives an account that he is certiorate of the pro
cess of treason cieecuted ag:ainKt liim, at th
instance of our udvocate; and, for answefsJ
thereto, the Doctor writes, That be bas beeaj
V.\ yeai^out of the kinj^dtim of Scoilund,
that be as now upon Ilie puittt of marrying
the Netbcrlan«ls, ami that he is naiurahzud b J
ibe slates of Holland, and that thereby, dur^J
JUg his stay there, his atlegiunce is translated
Iroin us to the sovereignty of the province of
Holland ; and, in tbe eitd of liis letter, be
certifies, that if tbis declinature be nut taken
citf his hand, to sist tbe process, be will appear
in print in his own defence, and will not so far
belray his own innocence, as to sutler a thing
of thai nature lo pass upon him, in which he
will rnai.e a rectUil of aiiairs lh«l have pa>';e4
these 20 years, and a vast number <
lar^, wbirh he believes wiil W di^
us i and therefore desire?^,
lorcifd to h^ whi«;b i^ a d..
1 1 191
5 JAMES U. Proceedings against Dr. GUbeH BnmHf [HJB
•tithonty, denying of bis allegiance to tis,
anfl astaeittn^, that hk»lle*;!^iance is traneJated
I frtim IIS to the sOFcrei^iry of the 8tAtes of
I Holland, and a Ihreatening us to expose, trtt*
I cluee, dt!(tMirA^ and bely our ifOYernnieat, nnd
I tlie public actings for 1K> yeiir<^ i)»*^i ! tliougli
)ieackni>vikMt*reef it mW be <Ji lo uh,
Jirei, Iw a rao^t indiscreet uiin i inso>
enoe, ne threatens tu do it in eont4?ni|^ft^ except
forsooth i¥« will aoqniesce, and soliVr the de-
clinature of our roval auiburity, ami pa&« from
the prooKss as havin(r no allei^iafice due tu us
from thei>octor, &c< in cotnmon lonu/*
BarnethimseHf (Ottn Times, vol. 1» p. 708,
f V ' I itionis that White (on:"ate4l marf|urs
* « ) whom Janic gtbe s^cund hail s^cnt
n\ Skeh<»n at the nuijne* Irad ori1**r^
? he entered upon hniiineas with Ihepvint^e
Hnc ess, to ask of them not only to iorhi<l
iifimet the court, hut to pronii'-^e tu f»ee him iim
I more, adding, " The king had w rit two tin-
fcfil lettei's against me to the priticet<s : !»he
rtrusted me f^o far that she sheweil ihom to me,
[ And was pleased to answer thcnk accordin*^ Xu
[ Jhe hit>t8 that t lUggeMled, Hut now it \\^»
yut so home, that this was to he Cfjuiplied with,
<«• a breach was immediately lO totlow «|ion it^
, S# this ^THsj done i and they were bnth »o true
to their promise, that 1 saw'neithcr the «me nor
the other till a fpw days before the prince set
•ail for England.'* fl'he prince, however, he
I lays, coubtaotly co
) Hie intermediation <!
^Ha%ini^ thus tl
[irhich king J
Hie !'-»' ♦' >,..>
I pro^»
I with him by
and Halewyn.)
u> with the dislike
talned towards hini,
,.c'.^.^ ti>. 796^) writeaoflbia
lost him, a^ follows:
...I a staid a year in Holland,! heard
many hands, that the king seemed to
i his on n greatneaa when he apoke of me,
r*rtHch he took occasion to do very otien. I
^ bad mibhshed some account of the short tour
I had mude b several letters ; in which my
tbief deaign was to expose both pojiery and
Ityratmy. The book was well nH!eived, and
[lias much read : And it raised the king's dis-
f^lea^ure very high.
My cootiduing at the Hague made him
aonclude^ thkit I wiii ;
him. And some \iu,
I out, r<?fliH:tinu on lli'- [u.
' firhieb seemed tii hiive a ^
|#»ow who read them. TU- - "-" ,-.'»x.* ►..
Ifdlaitd : and msny copies of theui were neut
|aU the partii of iLUi^land. All which lo-
nI the ting the nioie ai;fain*?t nie ; for he
h1 they were writ by rnt', as iiiilc*ed rno-it
rtbem were, But thut winch gave the crisis
> llie king'ti anger was, thai he i»e*ird 1 was lo
married to a consideralde torlnne at the
jue. Ho m proJL*ct was ♦ormed \^ brej+k
lb; If me witti high tre»-
in 1 lorrl Argile, and lor >
I fuiiur that were ouiluwod for hij^jtj tiv laini
** Th« kitf^ ordered a l«tt«r to be writ in hii
^l.ieK
» of
«so
wiihuut \\m
might hate
. Hut
name to hia adrocate in Soytland to proMnrtt
me for some probable thing or »'i
wa4 iutendcd only to make a noi^
ing but ihi'* .v r.i-i I .a- *i,..
riage. A I
in whit h 1):
a quii '
it, Iohl; 1
I pctitioneii the 8tatcai« who wtT^
to be nutura1i'/ed m order to my i
riage. And ihia pa^ in <x»iir»e,
leaat difficulty ; which perliti[M
been innde, if ibis prosecution nowTK^jrun id
Scotland, had been known. Now I ^r»* h^Mv
under the protect ion n
Yet 1 writ a full juun
all partiuulara hiid to iti^ < i
tcrs that 1 tient to the earl • >r
in mm of lliese I snid, t' ^
li^cd in lioUutid, tiiy
iiiy stay in thcMfpnu ,, .
maje«»ty to thi^ Makf). 1 n
iMter, that, if upfm i.tx ihh,
tetice sttouht pas-
ha pa forcml to j:>
account of the uli^ire ihui I i»fid tn
Iweuty yeur-s pai^t : In which ( i>
mrniiim Koine things, that ;
dibpt^asc the king: and tiu
iorry, if I were driven to it.
** Now t\\(i court thouglit tliey bill
VI T Mi!stmc; tor they knew they had
II >re. 8q the lirst citation wu5 kt
hUi, una a new one w a <; ordered on theav tirf»
accounts. It was preirntkHl to be hi^fh treaiao,
to aay my allfgiance was : - - t ^ - '
and it wai set forth, a^^ a hi-
king*, to ^tir*'<'*.-»t him With \\.,.,<.
the tntr :mt these last i
The tit, J struck at a grt'iiL ^
was a part of the law uf nationn. Ei^ery
that was naturalizLil took an OHih of iiJkirM
to the prince oraiate that natumli
since no ni:ui can iterve two m m b»
under a double allei^iance, it Im oet tain, that
ihei'e mfiHt t*e a tran^rer of altegiance, at hsMit
dn i>%y ill the country when! otie itii»
li;.;
*' ilii^ ojatter was k^ for
•ome ti«if»* the court ' la
L* tor sevirnu iiionitis. :\\ « i
ouilawry was given ; an I ij ' i
a-f-
T^
''■\
cibly. Tl I e methods *» he im:
were Vfr\ ridimliMis. And
many
therVi I ^^
effoct tJteiu. iHuny oi ei turt ^
of my frirnd*; in Loitdon, ih-
pr til to promMU
riv" ., J.ft< tif it. \ f
J iuid I- -. '' ■ .
I nn'M^ a«>;
iln-ti 111 the I>i.
I was not mi
■'\i
K\ IJiit i lh,Mf
t liciu. I resulted lo c*
I on, and to do my dukVi and to do what service
J I could 10 the fiiitirK', and to my country : and
I resigned mysekf ufj eoiirely to thut {jruvtdenc^,
^ that liaiL watched ovi-r mo to that time with an
^ indulgent care, and had mikde all the dessigos
^ ©r my enemies agamst aif! turn to my great
j^ advauiage.^^
^ After this, he has occ&fiion to notice the
»• transactions of Albeville with the Slates, re-
^ fpecting the occurrences at l^antam, after
pi which he thus resumes his account of the pro*
m feedings agaiuitt himaelf :
^ " Alheville's next negotiation related to my-
^ self. I had printed a paper in jusUficatioii of
tnyself*, togetlier with my letters to the earl of
Afiddleton. AjuI he in a memorial complained
T of two passages in that paper. One was, that
JL &ai(I it WQs yet too early to persecute men fur
" religion, and therefore crimes ay ainst the state
• were pretended hy my enemies : Thi*, he said,
_4id insinuate, that the king did in time intend
^ nersecute for religion. The other was, that
bad mtt in it an intimation, that I was in
inger hy some of the Irish papists. This, he
said, »as a reflection on the king, wiio huted
All such practices. And to this he added, that
hy the laws of England all the kiDg^s subjects
&re buund to seize on any person that was
indemncd iu. bis courts, in what manner
ever they could : and therefore he Uesiral,
tiiat both I and the printer of that paper might
punished. But now upon his return to the
|ue, I being outlawed hy that time> he de-
landed, that, iu pursuance, of an article of the
treaty that related to rebels or fugitives, I might
be haiiisheU the proTiDces. And to this he
craved once and again a speedy answer.
** I was called before the deputies of the
States of Holland, that 1 might answer the two
memoriab tliat lay hetbre them relating to my-
self, f observed the difTerence between them.
The one desired, that the States would piinith
le, which did acknowledge me to be their sub-
The other, in contradiction to that, laid
lim to me as the king's rebel. As to the
irticulers complained of, I had made no re-
action on the Icing ; but to the contrary. I
'Jd, my enemies fouud it was not yet time to
riecute for religion. This insiuuuted, that
ke king could not be brought to it. And no
_ eraon could be offendtd with this, bat be who
ihoughi it was now not too early to persecute.
Am to that of the danger in which 1 appre-
jiended myself to he in, I had now morerea-
mon than Ijefore to coinplain of it^ since tbe
envoy had so puhlicly amrmed, that every one
«f the king'* suhjecta might seize on any one
that was coudentmed, io what manner soever
tiiey could, which was eitlier dead or alive, f
was now the subject of the states of tloUand,
naturalizod in order to a marriage among
tbem, as they all knew : And therefore 1
claimed tbiir prat<!CtioQ. So, if I was charged
with any thing that was not according to law,
I anbmttted tnvself to their justice. I should
ij£(;hne no triali nor lbs utttovt sevciity, if 1
VOL. XI.
had offended in any thing. As for the twti
memorials that claimed me a«i a fugitive and a
relicl, I eouhl not be looked on as a fugitive
trom 8cotliind. It was i>ow fourteen years
sinc'e I had left that kingdom, and three since I
came out of England with the king's leave. I
had lived a year iu the Hague openly \ and
nothing was' laid to my charge. As for ths
sentence tliat was pretende<1 to be past upoti
me, 1 could say nothing to it, till I saw a copy
oi' it.
** The State* were fully satisfied with my
answers ; and ordered a memorial to be draun
according to them. They also ordcrwl their
embassador to represent to the king, thiU he
himself knew how sacred a thing naturalizu*
tion was. The faith and honour of every nitum
was concerned in it. I had been natuiahzed
upon marrying one of their subjects, which
wfis the justest of all reasons. If tiie king h:ul
any thing to lay to my charge, justice shoul4
he done in their courts. The king took thit
matter very ill ; and said, it was an affront to
him, and a jtist cause of war. Yet, atler much
passion, he said, be did nol iotrml to make
war upon it ; for he was not then in eondiiion
to do it. But be knew there were designs
against him, to make war oo him, against
which h« should take care to secure himself:
And he dxouhl be on bis guard. The emlma-
sador asked bim, of whom he meant that.
But he did not think fit to explain himself fur-
ther. He ordered a third memorial to lie put
in against me, in which the article of the treaty
was set tbrth ; But no notice was taken of tbe
answers made to that by the States : But il
was insisted on, that, since the States wer^
bound not to give sanctuary to fugitives and
rebels, I hey ought not to examine the grouuda
on which such judgments were gtveo, but
WfTc bound to execute tbe treaty. Upon
thljft it was observed, that the words iu treaties
ougfit to be explained aci^rding to their com*
man acceptation, or the sense given tliem in
the civil law, and not accord iog to any parti-
cular forms of courts, where fur uon- appear-
ance a writ of outlawry or rebellion might lie :
The senae of the word rebel in common use
was a man that bad bom arms, or hail plotted
a&;ain$t bis prince : and a fugitive wast a mati
that fled from justice. The beat with which
the king seemed inflametl against me, carried
bim to sa^ and do many things that were very
little to bis honour.
'* I ha«l advertisement* sent me of a farther
progress in bis dfsigns against me. He had it
suggested to him, that, since a sentence ii as
ptist against me for non -appearance, and tbs
Stales refused to deliver me up, he might
order private persons to execute the senfeuec
as they could : And it was.wnt over rery posi-
tively, that J, 000/. would be given to any one
that should umrder ffte. A gentleman of an
unbletnic^heil reputation writ me word, that ha
himselt' by accident saw an order drawn In tbe
Secretaries office, but no! yet signedy for 3,CKXJ/»
to a bla&k penoQ that was to lieizs or destroj
4G 1
JL
UM]
2 JAMES n. Proceedlngi agaimt Dr. Henry Compton^
me. AnrI lie also affiriULHl, thai |>nnce George
Had iieavd t^ the same thiii^i and LkuI desired
the persop lo wlioiu \\^ trusted il to coniroy the
notice of it to me; Ati(i my author wiis eni^
ployed by that |*orson to aend the notiee tn lae.
The king* asked JefTeries, what lie niiglit do
■gainst me in a |»rifra|e way, now ill at be conid
not W. me imo liis haikU. Jelferies answered,
he did not ^e how the king'eoord di> any more
Ihan be had done. He told tJiisto ^\v. Kirk
to send it to nie: For he conctiided, the
king^ waa tesolred lo proceed to extremities,
iiiid only wanted the opinion of a roan ok' the
law to justify a more violent method. I had m
many dilTt^rent adfertisementa MiiaX aie of Ibis,
that 1 GODchided a whisper of such a deagn
might ba?e been set altotit, an deaigv lo
frighten me iulo some mean subnission, er
into silence ni least. But it^ bnd nii other ef-
fect on tne, hut ibat I thouj^ht it fit to stay
more within doors, and to use a littte morelhaii
ordinary caution. 1 tliink God, 1 wa^ very
little concerned at it. 1 resigned U|> my life
very freely to God. I knew my own iniio-
oeiifie« and the root of alt the niaUce that was
aguiiial me. And I never ^oaaeaaid my own
»>ul in a more peridot calnu and in a clcaror
cbeerfulness of spirit, than I did durioff all
those threatening, and the apprehenfions
that others were in con(;eritiTi{<f me.*'
Henry earl of Clarendon, in bia Diary, under
dale Apiil 4^ 16S8, f^yB^ '^ 1 wa3 at the king's
terco : His majesty spake much oi' an answer
Br. Btirnet had written In a pamphlet, 6all«d,
* Parhamentum Pacldcum.* He ailsed me if
1 had read it ? I said. No ; I bad mit se«a it.
Upon which the kin^ aaid. The Doctor was
very an^ry, and used him, in hi^ usual man-
lier, wilb many rude and ioiioleni ejtpres^oos.
Bis majesty addeil. He bad not reoil the paiti>
phlet which th« Doctor prele&ded to answer ;
but bad heeid, it was a ^o«id i\m%g, Hir Jo»
L«>wther of Whilfbaven. bcini^ ihrrei satil, He
bad read it \ and did not remeutber any thinf
in it, which any one could except o^nflt.'*
Having already more thau once adverted l^
the question of fiurnet's veracity as an histo-
rian, (see voK fi, p. Iil4» vol. 10, n, 757, and
this present fobimei p. 1040 1 f " -'^ 'TPreaatk?e
' tbwl iPiiW rrsfipct to t^o mu iteohif sl
Uamet^s Own Times, as relui-^ -:^ u^^ reign ef
Jame» the second, Burnet's own repreaeinta*
tion of the circu instances, under which he
\vr<>te it, should not be neglectetl. AIUt bar-
iu^ stated that an inglorious and unprosfterotif
reig^, which had been be^n with g^'eat ad-
vantages, had, by poor management, bad dc»
st^ns, and worse conduct, come in concUuicii
under one of the strang^est catastrophes ttiat is
in any history, he says, ** Sticli an uiM^xpeCled
revo!ulion deserves to he well opened : 1 iritt
do it as fully us 1 can. But, having
yond sea almost ftll this rtngn, nianv
particulars, that may well ' - tn'
meinhered, may have esc^i; \i:t »» f
1 lad good opportimities to Lt w c • I , u f V > ■ • ^ '
will pass ovcT nothing that seems of
portauce to the opening such great and ........
traoRactioDS,? % Own Times G 17, 618» lol. eit
ofl724."
Hefiiy loril Clarando*. (who dkl fioi lihi
Buritet) r«laliii|^ in his Diuy whtt ^naagj m
the artiTAl of king Jatnes's oemmisiseiitts^ M
HtAgirford. (Dec. 8, 1686} to wait oo lit
prince of Orange, says, ^^ I told the ptinci
bow my lord Halifax' had desired to see llf,
Burnet, upoti which the prince still itMf^
would then Im fine tattling : Dut be i
speak to Burnet in prir&te, thet lie ha
mind any of those who were with Isio^ i
cooferse with the comnussianers.'*
I
u'
I
349, Proceedings against Dr. Hjihry Compton, Lord Bishop of
London, in the CouncU'Charaber at Whitehall, by the Lordai I
CommissiQaer$ appointed by bis Majesty to inspect Ecde^
siastical AfTahs, for not suspending Dr. John Sharps Hector olj
St Giles's, August 1686; 2 James IL a, d. IffSfi/
^The antient Hljirh Commission Court oweil
« its origin to the stmt. 1 £hz. e. 1, which
iu Ut as it relates to this i^otirt, is as fol-
lows :
^An Act lo rtitort to the Cromn the ancient
« Jurisdiction over the €itaU Ectluiaiticai
* itnd Spiriluul^ and ubQlishing alljorci^n
* pifWirt repujgnofU to the tame,
^ Where in ticDe of the fii|fn ot your most dear
* Btimet fifes the CoUowiDg account of the
nrV^noflbiscourl;
«« Mm^ ef the oleifj toied new a peit that
* father, of worthy memnry, king Henry 1
* eighth, divers good lawea attd si
* were made and estakHahedt as writ (
« utter eictinfi^uishmeiilaiMl putting ewejf
* usurped and foreign powers mi&
* out of this your realm, ^nd otfier '
* highoew dodittiioiis at) i, e< J
* tor the restonog %nt[ nri
* crown of this r«»l
^ tioQs, authorities,
made geod aittends fiir pitii fM-tfr«. Thw
licgan to iir»ech g«nr ml Ij a«n&inst Ps
wliick the ili»c»tc?sdid ooc The| eel I
1125]
Jt^T not Su^^pendirts; Dr* John Sharps
* mincncieti to the sarue of itj^htli^loDijiogor
* BiiperUifiii)^, by it^ason vrhemf, wc vmir
* nioftt liutiiMe uml obt-Mliuni sutjjpcts, miiti
"llhe xx%\ v^arot'lhe n-ign of your ^id itear
if«thvr, win* c4«itirHially kept "in jfood ord^r,
^ ftod warQ «lbltard«ueil ol' diners great amf
idir« to itiiily the (joints ^f controversy
And ttMO that tlicre loDan ed a yreat rarietjr of
«nBiJl books, CJiai were easily piircbmffe<t aod
•0O1I read* They examineil ull the ptnnts of
Popery with ft solidity of judgment, a clear-
•••• of Arg-tiing, a depth ot Teaminir, ftnd a
vivacity of wriiinj^, far beyoml any iking that
lisd lielbre that time appearoi in our language.
TlMtnttb is, they were %'ery unequally yok^:
For, if they are juitly to W reckoned "amoojjf
ikm best writen that haTo yet appeared on Ihe
IVolwtaiit iitde« those tliey wrote igoiait were
«Mtaialj amoog- tho weskaat Ural hm over ap-
piifcdott the Pop'wh aide. Their boukit were
Mrljr hut inBokntty i^rit ) and had no other
MmmgrittihMii, but IV hat wsa takeo oatof aoine
Ffaoefa wffileri, wbiofa they put iato very b«d
Sag li»h ? U0 thst a vtttory over tttem peed
iMve heeo byt ft meiin performance.
«« Thrv tftd ft migbiy elfiia on the whole
QSlicin : Eren those whs oof^d nol (waech
tbioga to the boitoni, yet were ftoiaxed at the
gum ineavmtily that appeared in tlii« enpra^re-
iPllil. Tlie Papiots, wlio knew what Service
tilt biaKop of Mcaun's book had done id Prance,
moiled to jmraue tbe same method here in
mwma^ tfMtiMB^ which they eotitie«i Papists
•vpfcaeiiied and misrepresented ; to which
auch clear anawera were writ, that wh«t effect
aoever lliat artiRce mig^ht have» where it wft9
■uppofted by the authority of a great king, and
the terror of ill LMage, and a dra^oovade in
•moitiirioiip yet it avcoeedvd ao ill in Enghind,
Ihil it gare occaaioit to enquire into the irtx
opfoioiM of that ehtifeh« nel an sume artlol
writers had diaguieed ihcot, hut as lliey wero
kid down in the books Ibat are of authority
•aoag ibem, inch in tbe deeiiioiis of councila
ftnaived among them, and tbchr estahlished
affioeft, and ft« they art? held at Ri>me, and in
ay thoaie t^iintrieiD whi;re Pn[>ery prevails with -
nnl lyiy kitermixttire wlih heretJcft, or appre-
bnndoo of Ihcm, as in Spain aod Portugak
ThiJ wan iknie in ao iinthentieal a [fmoner^
that Popery JtJielf was nevrr sn weH anderatood
bjr ihn ^tMNi, aa it came tu lie opoo thin ne*
♦* Ttx ptfioiia^ wbe both tnanayeJ and direct-
•1 Ibii natHwyttrwiA war, were cbneiy Tiilolaon,
lllliipgicBt, Tenniiion* end Pintriek. Next
HmtMreHharkick, Wilhaois^ €lag4
^*terhury, Whitby, Hooper, Mid
\^ akc, who having been hniiy
ab*.
ID I iaplaiii to iIk lord Prestoo^ brottght
over wtth hicn uiany citrinna diaoov eriea thai
Mmbotbiis4^ul anJaiw}wi«ing. Beaidea tl>e
ibief writers of tbotto bonki of controversy » there
liwt viany aermotia i>rt«ached and pfin««d on
those hmh^ that did very much cNljf'y the
whok aminii. And tbi« Diaiier was wattsgnd
A.D. 168<T. [11*6
^ inlollerable chargres and exaotions I>efbre
* tlmttime unlaufuUy taken and exacted by .
' such foreign power and aothority as Ulorn ,
* that was iivurpeil, uniil sach time as all (he *
' said good la^vs and atutute^ fay one act of J
^parUameot made in the first and second
with that concert, t^ml for the most fmrt once n
week 9<>me new book orac niKMi eami- mil, whictt
both instructed and animated tho«>e who read- 1
them. There were but rery few proselytes j
g-aioed lo I'opery : And these were ao incooo
siilcrable, tliey were rather a reproach thaA
ati honour to them. Walker, the head of j
Univertity College, and five or six more at j
Oxford, decbrad themselves to be of that re*
li^ion *, but with thiji brsacli of infamy, thofc j
tiiey had coiitiDued for sereral yefti-* comply-
ing' with the doolrine and worship of th^ {
church of EnglaDd affcer they were reconciled
to tlie ehureh of Rome. I'he Poprah priest*
were enraged at this oppas^ition made by tki# '
ciergy, when tbey sow their rfligion so cx«
posed, and themselves so much detipieed^
They said, it wae ill manners and want oi' dutj
to treat the king*s rehgion with so much coq«
tempt.
** It was resolved to proceed severely ogainii •
»ofne of tlic preachers, and to trv if by
that means they tnigbt intimidate the rest*
Dr Sharp was the reutor of 8t. fiilei^^s, and
was both a rery piona fliaii, nnd one of tbo
most popular preachers of the age, who had m
pecoimr talent of rejwliog his sermons with .
much hfu and zeal* He received one day, wM
be was eomlng ont of the puJpit, a paper sei
Irim, as bo buieved, by a priest, eontaininga |
efaallenge upon some points of controversy
tofichod by him in some of his sermons*
Upon this, he, not knowing to whom he should
Bcml an answer, preached a sermoo io answer
to it: And r after he had confuted it, be con*
eluded shewing how unreasonabie it yvaa for
Protestants to change tlieir religion on such
grounds. This wnt carried to court and re^
presented there, at a reflection on the kmg tor
changing on those gnHinds.
*' The inl«rination, as to the words pretended
la lie BpobeA by ^arp, %va4r false, as lie him*
telfanaiired me. But, without enquiring in ta
that, tbe oorl af Simderland scot "an ortkr td
the bishop of London, in the kind's name, re*
ilQirkg bim to suspend Stiarp tmioe<tiately»
and then to e5ran»ii»e the matter. Tiie bi>hop
an^werM, thai he hm) no powor to proceed iti
sr^'h a snmrmiry way : but, if an aectnMitioii
wt e bfongbt info his comt m a regular wav,
he wouM Meeevf lo nwh a feujiifre as could a*
warrAoteff h^ the Mf^lesiastieal law : \ et, h%
^aiii, he wmifd do thiit which was in bts powef*
nitd sliooid be noon tlie matter a sosfieiiaioii }
for be destreif t^arp to ulistain from olficiatilHr, ,
rdlthe mnUer shotilil he better noilersiooat
Hnt to ky snch a i^n^iure on a cWgy man. ana
snspension, without proof, in a judiciary pro*
c«emg» was eontrary both to law and jn^tice.
Nbarp wenlli^cnnrt' to sheir the nolas of hii
1W7]
2 JAMES 11. Proceedings against Dr. ,
[US
* yearjt of the rctgfns of the 1at<* kta^ Philip,
* apd qupcD Mflrv,}oitrhtgbnewisi5ier^ ^nli-
* tuliHl An Act repeulm^ all statutes, oruclcs
* a«il prOTisions, made agaiDst ibc see apos*
* toliok of Rome, viiice tbe tw^eutieth year of
fieriTion, t%1iich lie was ready to swear were
those from which h?^ had reail it, hy which the
fall! hood of the infurmation would appear.
But since he was not suspended, be was not
aftmltte<L Yet he was let alone. And it was
resolved to proceed against the bishop of Loo-
ilon f<ir contempt.
•' J emeries was much lunk at court, and
Herbert was Uie most in favour. But now
Jeftcries, to recommend himself, offered a bold
»nd illeg^al advice, for setiini^ up an ecclesias-
licol comuiiissiou, without caUin^ it the hig'h
coiuniission, prcienditii^ it was only a etandin^
«ourt of delegates. The act that put down the
\\%[r\\ com mission in the year 1640 bad pro-
▼ideil by a clause, as full as conld be con-
ceit ed/Uiat no court should be erer set up for
those matters, besides the ordinary eccle!»iasti-
cal courts. Yet in contempt of that a court
was erected, with fuU power to proceed in a
summary and arbilrarv way in all ecclesiasti-
cal matters, without Limitations to any rule of
law in their proceed ingfs. This stretch of the
aiiprt-macy so contrary to law, was ass^inied
by a kini^, whose religion made him condemn
ail that supremacy that the law bad nested in
the crown,
** The pers«)ns with whom this power was
lodered were the archbishop of Canterbury,
and the bishops of Dnrcsme and Rochester*
and the lord ch^mceMor, the lord treasurer,
and lord chief justice, the lord chancellor being
made pn^siilent in tlit* court iine quo non /* for
they would trust this to no other m:tnagement.
The bishop ol London wafi marked otitto he the
first sucritice, Sancroft lay silent at Lara-
lietli, He seemed zealous against Popery in
private discourse : but he was of such a timo-
rous temper, and Koseton the enriching his ne-
phew, thai he shewed no sort of courage. He
would not CO to this court, when it was first
opened, and declare against it, andgi\e his
rcaaoBs why he could not sit and act in it,
judgidj^ it to be against law r but he contented
Dimself with his not going to it. The other
two bishops were more compliant, Duresme
was lifted up with it, and said, now his name
would be recorded in history : and, when some
of his friends represented to him the danger of
acting in a court so illejfally constituted, he said,
beconKl not live if he should lose the king^s
K acinus smiles : to tow and so fawning \^ as he.
oiben, archbishop of York^ died this yean
So, as l^prat had succeeded him in Roche^er,
Ke bad some hopes itt fall of succeeding like*
wise in York, But the court had laid it down
lbram.i%im to kttu all the i: real see^, that
»hi ■ ■ ' ry
nisiakc; 'UU-m,
*• '11*4 . lit ii«r-
' king Henry the ei;;hth, and alto for llii
* establisibment of all spiritnal and ecol< ^^"
*tiesl rii^ssessions and hi^reditamenta
* veyecf to the luity, were al) clearly repeal!
* and made foid,' as by the same act of rt-
80f>, that was summoned to appear before ibis
new court. He was attended on by many per*
sons of great quality, which gave a ifcw of*
fence : and the lord chancellor treated him in
that brutal way, that was now become as it
were natural to him. Tho bishon vntd hf^e.
was anew court of which hekr ij* :
so he desired a copy of the com i!»st
authonsed them. And, af^er be had drawn out
the matters hy delays for some time, hoping
that the king roisrlit accept of some general
and respectful submission, and j»o let the tnat*
ter fall, at last he came to make his defiBOOir
all Becret methods to divert the »tonn profta^'
jneffectual. The first fiart of it was an exefp-
tion to the authority of the court, as being nsl
only founded on no law, but contrary to tbe
exprcKs words of the act of parliament that put
down the high commission , Yet this point ira
rather insinuated, than urged with the force
that might have been usetl : for it was
that if the bishop should insist too mud
that, it would draw a much heavier measisi
indignation on litm ; therefore it was rather
opened, and mo<lestly represented to tbe
court, than strongly argued. But it may ht
easily believed, that tho^ who sate by ? trttie
of this illegal commission would inaintaio their
own amhority* Tbe other part of the bishop
of London^s plea w&s, that he had ubeved the
king's orders, as fur as he legally could do ; for
he had obliged l>r. Sharp to act' as a man thit
was snB{>ended ; but that he could not lay
ecclesiastical censure on any of his c'~
without a process, and articles, and some
brought. This was justified by the coi
pr<icttce of the ecclesiastical courts, and '
judgment of all lawyers. But arguments*
strong Miever, are feeble things, when a
tenoe is resolved on before tbe cause is
So it was proposed, that be should be si
during the king*$ pleasure. The lonf ehtcr*
cellor and the poor-spirited bishop at Ourrsttie
were for this: but the carl and bij»hop of 11<h
Chester, and the lonl ohief iimtioe Herbert,
were for acquitting him. There wait not so
much as a colour of law to support the sen*
tence : so none could be given,
** But the king was resolved to*
point, and spoke roundly about it to ti
Rochester. He bsw he must ti?'
the sentence, or part with the v
he yielded. And lite bishop wu^
o^cio. They did not think fit to
his revenues. For the law3'eni had
TK»int» that hene5<*e8 were of the mlum
liolds. 8o, if the sentence ti»d tnint-
temporal ties, the bishop \%
matter tried over again i .
witi^rt* he wiij* like Xu
belt not beioy: aati^lK i
lie
IIBIJ « JAMES n.
-mkmmf be til
[IIS
•«miiior.tiiMriila.
find thai yoarhigbnaMyyoa^ktin and iue-
^eMMffiy longs or ^uai '^ *
^kftf* Ml y»ir»f Mi4
•tiMMt, 1^
fimwr SM MrtlMiitjr tjr lirtaa «f
<nM»wlMBaiid MaAMTttiyour ti%hoiii|
* JOT heiw ar inrr ■■■■« ifcaB tfcii ik Mtat — a
' for aucb umI to Mag tHM M
'■ImJI plaaaeyow liighMMpyowr
< tunl-boni tabjectato yoor bighnaai, yoor
<betnoraoooeaiors» aa your maiealT. your
•haJraaraocceaaoraahali Ibiak
'araaey naayOOGitpyaiidcixeciiteiflideryoiir
'Mfbnaaa, ycmr bciffa §mi aoceaaaora, aD
'maiiMr of jmiadielioiiay prinleM aMi
' prabamiucneaa, in any wiaa taooiiiig* or
•imMiolioB. trttbhi tbaao your realma of
< ISiiffhuid and Ireteod, or toy otber yoor
* btganeia dominiooa and oonntriaa : (8) And
* to TMt, retbitn, redrait, order, comet and
* amend aH each erron, bereiiea, achiama,
* abodes, offtncea, contempts and enormities
* whatsoefer, which by any manner of spi-
* ritual or ecclesiastical power, anthority
* or juriidiction, can or may lawf^Dy be re-
^ formed, ordered, redressed, corrected, re-
' stramed or amende<l, to the pleasure of Al-
'migfhty God, the increase of Tirtne, and
' * the conserration of the peace and unity of
* this realm ; (5) and that auch peraon or
* peraoaa so to be aaa^d, aiaiffDed, a«tbo-
* Plied and appoinSed by your bigbneaa, yoor
• * heirs or succsssors, alWr the aaid lettera
* palenta to htm or them made and delivered,
* aa ia aferaiaid, ahaM have full power and
* autborily by virtue of tbia aet, and ef the
* aaid lettera palenta under your hi^neaa^
* year haira and aucoesaoAv to esereae, oaa
* and oaeetila all the preaiisses, aeoording
« to the tenour and eiicct of the saM letters
* patenta ; auy matter or cane to the oan-
* trary in any wise notwithstanding.*
It doea not seem to be likely, that quaan Bli-
sabath would loog forbear to axeroisa the
yower with whioh abt waa thua invested,
•Ml acaonliagly in WiUdnafa Concilia are
aat forth savani oommiwMM ianad by het
vary aaily m hat f«n, te. tha ocguaaaea
anooorreetion of diAaanl natla
intbaraap Wav^of*
vid. S,p.480«
23k BCGLfiSLMmCAUi OOMMimaEf
§rmmHi to IA# Etigki Cmminunm%Jw
XcdamtHediCtmeit^'motL'Bj^ .
< EusosfHi by tha giace af Gad
BaghMid, Vfannce 804 halaad,
thafiivtfc ~ ^
'fiiythydsa. To thai
AariaQad^atM right twa^aadijt
tarhwya, ptJMto af aO 'irlghl^aad ■»-
taapahtaaa, and to tha I
Gad o«r light trH^aait
knhappb of Laiidam WlaeiiUnr, Slyi^
Wanaator, «L Daviaa, Narwialh Chiah»
V te tha tnm hci^fcb
arDovWviM
to oartwattyaaiiwaU biJiaad aa—wiw^
te. WhatUMy in ear ■aefiMMsl haUai
•I WaataiMtor^ tha SMiday af JMwy,
in tha iial yeaia of oarraigaa, «i**aia
I aadkcapti
sya thaaaaxt lb
thjarya Ami
■Mae and
tiUad AaActeraaanriagtothai
jorisdietion o#er the s
and ap'aaH, aboKshinga all iir>
power repngnant to the same, and tb'
other intitnled An Acto for the unifonpilve
of eomaaoa prayer aadaarriceof the chnrOy
And whereaa ako -in our p'UanMnt boUca
at Weataa^rtfae 19th daye of January hi
the ftfta year of our raigne, amoagtst
ether tbingea, there waaone other aeto aad
stotute aiade and eslabliabed, intituled An
Acto for the assuraunce of the qoeena^H
Bia'lie'a voyall power over all atatoa aad
aubjecto within der doaMaiaiona ; and for-
thar, wharraa in oar parliaoMoi begun aad
hoUen al Westasmster.thesaeond of ApriB*
ia tike thirteenth yeare of our raigii^ and
their oontymied untill the disaolnoaa af
the same, amongest other thyngea, thaira
waa an asliB or statute onade andestabiahait
intituled, An Acte to raforme eertayaa dia-
eoraes toucbkige ministers ol'the chuRh» aa
by the aamaaeuerallactea aftova at lufa
doth appeare; and whereaa dyuara aa#n*
ous and slaunderoua peraana iom net aaaaa
dayely to invent and aalt fourth fhlaara-
mots, taylea and sadMiioui
only agauat ua and tha
and atolula, buiaUohavet
latolula, but aUo have attt foui*
•BoiathaHS.
I
Jbr mi SuJfindmg Dr. Jofm ShM¥p%
k. D. 16S<3.
tnsi
* £ii|plAfid, Rieanin^e thcrf4>3r lo itio^^e anil
* procure slrif, dension, afiJ ' in
* ftnioni^tour lovinic^! mil oljciUen
* niucii to the disquieting of U!« qiki <k)i jt^ru-
* pie ; Tiierd'cire we eama^tye to h»f e the
* «aine si-veral actcs before- men ti4jned to He
* iJiily |Mit ill rxecution, and suche pertotn ai
* sljail litiinifiep offend in any t)iii«|f« con*
* trtry to the teaiior ind eftect of 3»c said
* M-tter«|] giatuteft, or any of them, to he
' Gondii; tielyf punished, and haring speetall
\ • IrtMl tttid confidence in your iTiBdonies and
* discretions, have authorigetl, ast igfited and
* ftppoynted you to be our commi^^ionerSf
* apd by theis presents doe gfire ftiH powerand
* ■nlhorttyeunto you, or three of you » whereof
* you thrsaidearchbiiahoppeof Canterburye,
•or the bishoppes of LoR<lon, \Vitiche«icr»
* £lye, Worcester, St. Davies, Norwich, Chi-
* cbt»ler, Roehefler.forthetirnr Ijolngor you
* iH- ^ ^ i^e autTra^an ol Ihnrrr^ or ymv
* tl Thomas 8mitb, Frauneis Wal-
•lii.^...*i.., UoiTfcr Manwood, Thom*i Good*
* win, AU^.vand«*r NoweU, Gabriell Good-
* maot John Whit^il^, TbomuiJ Hachford^
* Tb<»niaa Wi(*!on, Gilbert Gerniril» Thonias
* Bfoineley, Anthony Cook«f, Heiuy NeviU,
* Thomas' Wattes, Davy Lowes, Thomas
* H*le, Barthoh>wer Clearke, or John Ha-
* nioud, tu be one frotn tyme to tytd« here-
* alier, dunngr our pleasure, to require as
* w«4l by tbe othes of tvretve ypood and bw-
* fisiJ men, as also by witnetacs, and all other
* injes and nieanes you can devise of alt 6f-
* ftnett, eonteinplit transj^ressions and mis-
* dimcimirg, done and committed ami
-' bMfMlker to be committed, and done con-
*IVlfjto theteanorand effect of the aaide
* levcraH nctes and statutes, and every or
♦«ti*^ «f fii^Mfi »T^^ afso to inqnierof all and
•fci II, i^ronious, or o^fetjaive
* *>? .'ni9 liOokes, <.-*>i>leii»pts, con-
ilse rumoTM or tales, seditious
iivs, staundemus wordea and
ililished, inTented or tett forth,
r tu be publifsbect, invented or sett
« fbrtlj by aiiy pefSOD or ]^>er80ns a^in^t us,
* Of agminst any our maiestrate s or ofHoer«,
* myntsters or others whatsoever, contrary e
^ • 10 any the laws or statutes of this our
■^MMlnte, or against the quiet ^vcrnm> and
^^KW of our people and »ubjeeU in any
^^Botity, ciiie, boroug-h, or other place or
^^Hkcea eitrmpt or not exitmpt within thij
^^r rfttlme of KntHand, and of n!* -■ ' -
* tilt coadiutont, eouticf-lkrt and <
* WOCtl»"*"»^ 5"'rul i-iln-Jturv -a' i-.'i t-f ., , _._.,
" ' vve dot*
, whereof you the
C^uitrtliury, or I'! «:j
, feiye, 8u |ja»y«^,
or Hm-hester, for the
the hij^hopp Mitfr^f^n
♦ or
* W»rf* o< you
*■ biiakopp ot
* Lnndon, \^
•Worcester,
*t3rilt« MtiK:e, ur yo
• of |l«>v*r, Of v/*M
• He said Thonvaifc Sfiiitfi,
>, Vc, to be one from
oiir plewcrrei m Hell
' to beare iftd dettrmyne all ind efery ttno
' protni^fies, a » also to tnquier, heare and de«
termync all and singular eiiormityes, ilia*
* turhancsoa, misbehaviours, oflenees, as*
^ saults. fniyeis, and qiiarrells done and cem*
niMted, or heareafter to be committed and
' done in any eburcb or cboppell, church*
yard or chappelUyard, or ajrainat any *le-
Yvne service, or any mynister or myinit^rs
of the BBme, contr&trie to tbe lawes and sta-
tute* of this our reaJfii«, in any place or
places exempt or not exempt witbin thia
' our realrae, and also to enqwier of abd
serche out, and to order, correct, refomie,
and punishe, all and every such person or
persons, dwelling in places exempt or not
exempt, w*h wilfully and ob^tinatlie have
ftbsefited, or hereafter shall wilfullie or ot?-
ttinatlye absent themaelvesfrom the church
and such devine service, as by the lawea
anil statute of this realme is appoynted to
^ be bad and used by censures of tfie church,
or any other wayos and meanes by the
' said acte for imifbrinitie of eonimon p^-ayer,
' &c. or any lawes eeelesiastieall of this
realme is limited or apitoynte«l, and also to
' take order by your discretions, that the
^ penalties and fbdeituret limited by the s^id
' acte for uniformitie of common prayer, &c.
' afi^ttiust the oflendoi^ in that behalf, may be
^duely from tyme to tynie levied by the
' church^vai^ens of every paiiahe wh^re ah/
such oflence shauld be* done, to use of ilie
^ poore of thfe same parrisbe of the jyoode,
' Jande and ten'ts of erery such olfendor by
way of dtstresse, acc<irdinfjc to the tiuiita-
' tion and true meaninn; <A' the saiil statute ;
' and also wiee doe give and graunt full
^ power and authoritye unto you, or three' of
^ you, as i? afore*ai'd from tyme to tyme,
' and at all tymes durin^^c onr pleasure, tu
viiit, reforme, redreB!»e, order, correct and
^ amend in all place within thia our retline
^ of £og;laDd, as well in places exempt or
^ not exempt, ftll errorsi neresies, aclsmes,
' abuser, ofTenoe*, oontempts and enormitlee
^ 8p*uaM or eeclesiasticall whatsoever, which
^ by any manner sp^uall or ecclesiasticall
power, authority or jurisdiction can or
' maye lawfully he reiorme^l, onlered, rc-
' dreswrd, corrected, rafitrayned or amended
by ccTisurea eccleaiasticaH deprivac'on or
' otherwise to tlie pleasure of Almighty God,
thcincreai^eof all int'reii»csofverlue,Bndlhc
r— aervatioii of '^"- ■ ^ *■ and unitye of thia
1 ) 5H*, «nd|ai < ' the au*fe or p*.»wer
. .iiitted and ujjj. -.„_ ; l>y any lawes, or-
• dinance or statutes of thii our realme, and
* also wee doc g^ive and grant full power and
*■ autfthoritye unto yoi], or three M" you, as
• iifore^iaid, from tym^ to tv tike, arid tt ill
• tymrsduriniHr our pleiuut'e, to enquire of,
» serch out and caII bctbre you, nit and every
• tiich person or peTM>ns, ecclc?«ia*rtic3ill liv-
* inyf^ that slitall adtivedW mayntiiyne, or
* uflirmc any doctrine, A erect fy omirary,
« or re|n}gitaat| to titj of tte«rtid«i of re*
1135]
f JAMES II. Proceedings agaimt Dr. Henry Compton^
*■ tu^ion, ffhich only concerne the confisssion
•ot'ibeirue Chrisiiau faytb, and the d«)c-
* iriiie of the tacraineni €orupm«(1 iit a
/ booke imprinted, intituleti, Articles where-
"* u\wn itwat agreeil by theart'hebi^hupsarul
^biiihopg of tK>th |iro*jijces» ami tlie whole
} cUreeye, in the convncation bolden nt Lou-
* lion in the yeare of our Loi d God one
* thousand 0i?e hundreth mid 6i\ty nud
* two, accordin*re to the C0Liii>u(atiMQ of the
L* Church of Eugtandf for the ordaiuinij; of
1^ Hiurrsiiies of opinions and for establish-
^ iuge of consent, touching' true reU^ioti put
* forth hy the queeiie^s authorities and that if
* any person or persons beinge convetiled
* before yoUf or any three of you, as afoiv-
* said, for any iuch matter, shall per^tist
* therein, or not revoke his or ttieire error,
* or afiiir such reroctttimi eiUonn attirnic
* such untrue dortrjoe, then to deprive from
* ajl promotions eceleeiasticall, all and every
* such person and persons lo mayutayuingf
* afBrmin^ and pre«istiuge or &o eftsoones,
* affirming as is aforesaid j And furtht-r we
* doe gi?e full power and aucllioiity unto
* yon, or three of you, as ia aforesaiil, hy
* rertue hereof, toenc^nire, hearo, dt^termiiie,
1 and punish all incests* advow tres^ furnii'n-
* tion«jf outrai^eoua^ misbehaviourfif and dis*
'* orders in niarri*i^''e, and all other cryines
* and offenses which are pnuishahte or re-
* formable by the ecclesiasticall ta^fefi of this
* otir reahne, commiltefl and done, or here -
' after &o committed or done^ tn any place ex-
* eropt, or nor exempte uilhin tbiii our
* realme, according to the tea nor of the la^ves
' in that behulf, and according to your ii is*
* domes, conscience and disc^sions, williyg,
* cammandingeand aucthorisingyoit, or three
* of you, as is aforesaid, front ty^ne to time,
*hereatterto use and devise all Kuch pol*
*■ litiqne tvaics and meant for the triall and
* iearchinge out of aJl the premisses as by
* you or three of you as aforesmid shall he
^* thought roost e.\u€dient and neceifsary , and
^ up|Hiu due prootc thereof had, and the of-
\ fence or offencca before specified, «r any
^ ol them sufficiently proved a^^aiii!»t any per-
^* son or persons, by confession of the party or
* lawfull vt itnesscs, or hy any other due means
f* before you, or three of you (as is atbrc*
k'said,) that then you or three (as is aforc-
C< said) shaU have full power and antboritie to
< order and awarde such punishment to
* every such offender by fyne, im prison men t,
* censures of the churchi or otlierwise, or
' by all or any of the said waies, and Intake
' such order tor the redreiste of (he same a^
* to your wisdomes, and discretions, or three
' of you (as is aforesaid) shall he thought
* tneete and conTenienl ; And furlhcr, we doe
^ glue full pi»wer and authoritye unto you, or
} three of you (OS atbresaid,) u* call belore you
"^^ or three of you (as aforesaid,) from tyme
* to tyme, all and every offi^nder and of-
* fentiers in any of the premiajses j And abo
^ sueh as by.yuu, or iliree ufyQU as is afore-
I
* said, shall seine to be ■uspccl parsons io
* any of the premisses, and to ptticeedt
* against th«fui, and every of tbcm as the
^quallitie of the idfeoce or w<i^M;i.nii
* require aU, also all £uch w 1 1 «r
* other person or persons ll<ji •.d\
* you concerning any of the p renin
* yon, or three of you, as afores^iid^
* thinke meete to be culled belurc you, ur
' three of you as 8l#ire«ra}d, and iheoi and
' every of them to eikhinyne upfKin theirft
* corporal! othes for the better trisll asd
* opening of the imlU of the premisjui
* or any part thereof ; and if you or
* three of you as aforesaid shall 5ijde any
* |»erson or |>er£ons obstinate, or dis(i)e-
* obedient, either in tlieirc apparence htiotc
* you or three of you as aforesaid, at ytMir
^ calling and ooiumuudemcnt, or ell« iii nat
* accomplishing or not oWying your ordrr*,
^ decrees and commandments or any ttiin^p
* touchinge the premise*:, or any parr
' thereof, and then you, orthrc^of you, a<
^ is aforesaid, shall h^ve full poiyex and siic-
^ thoritye to punishe the same |ierson or pcr^
* sons so otfendinge, by executiotis and other
* censures eeclc!&i^stical)« or by fyne aocortl*
*■ ing to your diM:reations« or CMtu*it tb^
* same person or persons soe oHending' to
^ word, there to remaine until! he or ibry
* shall hy you, or three of you, (as is slwre-
* said) enlarged and dtthvered, and beeaiiw
* there is great deversitye in the f»t:rsv>D» that
* are to h-' r"" ' 'ri?tore you, >* 'r-- ■*'
'dvrellifi fiyi>u,sonj<
*and}*ou^ ...^ . ,ij.;ged wilh^i^i,.u.^., .
* and taulls, the s;*edie rehires vrh^rcof i\
* most requisite, and thereft»re nmro ^yt^^h
< or etfcctuall and siraighter <
* your leuet^ missive i& re«^; - i inert
* {»art of those causes, wee, lor the better
*■ execution and furiheraitnce of our senke
* herein doe give full power and and
* unto you or three of you as atin
' command all and every our jus
^ other officer and otiicers and nubiecLA
* this our reaUue in all places:
* as not exempt by your h
' bend rr • ' - ^
' son or ]
* to he i;o,.»* .
* any matter t r ao|
* part thereof,.,.. . ..,
* to our nseas you, or III
^ said, sltatl by your let ,
* or theiixf persouall appearaunce, to b<
* belbre yon, or lliree of yoo, ss nfn
* and soe to attend as ap|»e« r
* case any such person or j
* prehendt'd be not able, or will
* refuse to privc *iufficient iK^imd to our n
* hjK or theivi'
* you as afore
* name, you, ^
* give comm^i
* Uccr or otlu r ^fci vm.i , .ju.ici *
' he or they soe to bt coavrtitiNl hRfmyim
i
a, it
* s\.m\] hapyirn to retuavnc, cilliei' ihr the
* liiing^iii^e liim or them lie lore yfm, or elli
* to Ldimiiiue*' hitii oriiitiiii to ward tir otUtr
» sulJe eusloJie, soe lu remu\ lie nurill \ nu, nr
* ihiiie of you, an atopttjaid^ ^hall further '
* ordtT tor hib or tlu*ire enbrg-einent^ aiid
* furiiii'rmure w«m? «loe give unto you, i»r
* three of yan, as atoresaid, TmU pcjwtr ati J
' luthnntie by tlieis presenu, tt» take a^nl re-
* ceave ly y^JunJisnttioiis, i>fe»eiytotreoder
* 9Lii4 sufipect persfin tn be convcnleil and
* brougliie bt*lbrc you a leco^ni'/jkntnic or re*
* co^nwanci^s, obl!g^€ouurobhi*itligiis, to our
' usa^ iti siuch some or somitie&ot' laotiL'v ii» to
* you, or three of \ou, as atbittJiid^ »haJl
* see [lie meeis and conveiiienl, as well for
* there jiei-sonall ap|iarunce before you, or
* tliree of you, as aiiiresaid, as also for the
* perrorjiiciuiieennd accomphAhc'inent rd'such
* orders and decret^s, as to yim, or three of
* you, as aforesaid, »tiaJ I sctmeeomeinent m
* thai btbiiLif; and lurtlitr otir will aod {Aes-
* sure is» that you shati a-ssuiue our trustye
* and wifH-belofeil subjecte Williaui Bedeli
* to be yonr rt-gestor, \i*lioni nee by theiK
* presents doe depute lo t!iat cflect, or in hia
* absence or dtfaiUt any other pubilque
* sufHrient Qotarie or ootaries VYhomsocier,
'you tlit^ areliebjsshope of Canterbury^ i and
« hLslitJp[>e ol Lfjndotj fw the tymc "beio^e,
* fib all by your (J j sere t ions and considt rations
* of the ty tne and jdace jug^de moKte mecte
* and apt to iurlber our serviee in this be -
* half, lor ibi; rehiring of all yom- actes,
* decrees, and jjroccedincfs, by veriue of this
* our i'om mission, and sTiall lymict Huto the
* Kald re<^ph'ter, suck allow an ee for ifie
* pay net* of hiui or his clearke in that bebalfe,
^ as to your diTicretions shall be tiioui^bt
* meete llo be auusvvereil, as well of the par-
< lies hetore you, or any three ol" yon, as
* atore&uid, to be conrented, as of the iyiaes
* nhich you a^jsetiiie and leiie by tbit:e of
* this onr couimtsi^ioii as the vane Rhnlt re-
' niuer, and that iu like inasuier you by your
' diner etiou thaU ap|ii>ynt one or rnoe iiies*
< seuijer or messenjjei-^, and other olHeer or
* officers, to attend upon yon for your ser*
* nvt* m this f^'hntle, and ^hull liuiiLt unto
* hirn or them, fur his or their paynes, such
* allow an ee as you shall thioW g-fHid, tlie
* same to be aoswereil unto him or them in
* like manner and tbrrno as betbre uiuirh-
* }n|j;e the suid Regisler is nppoyute«J, and
* tuither our will and jdL'asure is, that yon,
•or throe of you, as af<iiesaid, !»hall Imm
* tytne to tymc appoynt out' suthciMit person
* to be receiver, and to tieather up and reeeir e
* all such some or »oninu'K of i^ioney as by
« you or thrt'e of you as alortsaitl shall by
* rcrtue of tjiis onre eommis^ion he a?i!iesiied
■ or tsL\eil, for any fyue or Jynt* uppon any
* person or pur:»unH for llicir otience, and
* I bat every such reteavor by you^ or thrfe
* rrf you, as aforesaid^ to be appoynted, shall
* receavc all such some or sommes of mouey
* for any such iyne and fynes, feo« by you,
VOL, XI.
* or tlirce of yon, as is aforeslild, to be as-
* teased or taxed, aud shal be aecomptahle
^ for t)te same, and for the ju^t receipts' nnd
* true aeconipt thereof to lie made, \stv. xnH
* and cominanud that theire t^hal be tw6 paper
* btjokt'H in<h nted, made, the one to rt'OiU^'lie
* mib the athul receiver, auit the other v»tth
* the »aid n-^ester, in both \i hich bootees
* f>h[d] be ctitered uU such fyiie and fynes ns
*' by yon, or tljree of you, as aloresaide, skat
* be nssea.ssed and taxed in that behalf; aotl
* to e^cry such entrey in either of the saifl
* hookes the handes «t you, or three of you,
* as aforennid, shall be std^seribed, and iho
* said rceeivor thereby ch arched, and thai
' y^u, or three of you, as atbresaid, by bill or
* bills assigned with your hand, shall and
* may assigne and appoynt to the said re-
' ceif or for hi« fiaynej* in receaviDg the faid
* somnus, and al^o to vour reg^irter, mcs-
* senger, and offijiei's, and tvery of them, at-
* ten tlant uppon y<^\i , for there pay nes, tra? ells
* and charges to be austeyned iu our service
* about the luemisses, or any parl«,lliereof,
* pf such some and sommes of money for
* their reward es and pay lies as to yon or
' three of you, as }m aforesaid, shal be
* thoug'ht convenient, wiiiiugie and com-
» mandin^c you i»r three of you, as atbresaid,-
* once iu every Michalmas Tearme diirtng^
* this oure conj mission, to eertiiie into our
* oourte of £xehef|uer, as welt the name of
* the said receivor, as also a tjote of all such
* fines as shall be sett or taxed belbre yoit
* and by him receaved^ to the intent that the
* laiil reoeavor may be charged thereby, and
* uppon the dctermiufitiou of hia accomikte,
* wee tnaye l^e answere*i of Uie rcsidewo
' thereol', that to us shall apperteyne over
* and be!»ideH the allowanires to the said re-
' jjKster, mes^ene^ers and other officers, by
* you, or three of you, as aforesaid , ifiven
* ujid liiuilted, willinge and rojnmaundm^e
' ufso our audytors and other otheers to
* whotne it shall apperteyne uppon the sight
* of the Kftiil bill si|Fned with the hande of
* you nv three of you as la aforesaide to make
* unto the said receavor due allowauuee ac-
* cordtng'e to the said bills uppni his said ac-
* conipt, and whereas tlieire w«re dyvera
* catliedral and €olh't^eat churche**, pTamour
* scholeii, and other t'ccll»*seaiiticaU incorpo*
* rations:, errected, fouudei!, or ordwyned by
* the late king otf tramous luemorye, our
* deere lather kinge Ueury the eight, and by
* oure bte deere brother kinj^ Ed^vard ih*
' sixt, andhy our late sisterijueene Mary, and
* hy the late lord Cardynall Poole, the ordi-
' naunces, rules and statuts uheret^l, he either
' none at all are alto^eilher imperiect, or
* being oiade at surh lyme as the crowue and
* r€|;LineQl of this realme was subiect to iba
* Ibrreme usurped aticthoriry of the sea of
* Konie, they be some poyuies contrarye^
' divers and ropugnsnt to the diguitye and
* prcr<i^atif e of onrrrowne, the lawes of thii
' our r^rae, and 1ii« pr^ssnt Stita of t^Vv-'
4U
1139]
2 JAMES II. Proeeedingt againsi Dr. Hmry Compicm^ [114(1
gfion xvitfain the same, wee therefore doe
^W9 fall power and aucthorityc to you or
sixe of yon whom wee will you Uie fore-
fiamed arcbebisshoppe of Canterbnrye, the
bisbopps of Londoo, Winchester, Elye,
Worcester, Norwich, Rochester, for the
tyme being, Gabriell Goodman, William
iJeyor, Thomas Walts, alwaies to be one,
to cause and command in our name all and
singuler the onlinaunce, rules and statuts of
all and erery the said cathedral! and colle-
giate churches, gramer scholcs and other
ecclesiastieall incorporations, to(>^ej(her u ith
theire severall letters pattente, and other
writings, towchincre and in any wise con-
cerninge theire severall inrections and foun-
dations to be brought and exxibitcd before
you, or sixe of you as is aforesaid, wil-
ling and commaundtnge you, or sixe of
vou, as is atbresaid, upon the paine, exhi-
biting and uppon diligent and deliberate
search and examinatiou of the said statute,
rule and onlinaunces, letters patentes and
writinges as is aftiresaid, not only to make
speedy e and undelayed ccrtificats of the
enormities, disorder, defects, 9urpu1$:!<^e,
or want of all and' singular the statutes,
rules and onlinances, hut also with the
same to advertise us of spche goode ordrrs
and statuts, as you, or sixe of you, us is
aforesaide shall thinke mccte and coir.c-
nient, to be by us made and sett fourth lor
the better order and rule of thfi said
severall churches errections and founda-
tions, and ye possessions, and the reve-
newes of the sauie, ami as iitaye h?st t-ml
to the honnor of Aln/i^hty e Coii the increase
of vertuc and unity in tlie said phiccs, autl
the public wcule and tranquil litie of ihis
our realme, to the intent \vcc maye iherc-
uppon furtlier proceed to the altrinjrt',
making and establishinge of the same, and
other statuts, rules ami ordinaunces, accord -
inge to an acte of p'liaincnt thereof made
in the first yeareof ourraigne; and where-
also we arc enfbrmed that there remayneth
as yet still within this our realme, dy verse
perverse and obstinate persons, which doc
refuse to acknowledge ye iurisdiction,
power, privilege, sup'ioritie and prc'!icun-
nence, speciall and ecclesiastical), over all
states and statuts within this our realme
and other our dominions, which is given fo
us by vertue of the forsaidc two actes, the
one intituled an acte for restoring to the
crowne the aunciept iurisdiction over the
state ecekoiasticall aud s;>*uall, and aboKslj-
iiige all io;roine power repugnant to tI:o
same, and the other intituled, an acte iic
the Gssurauikce of the quoene's ma'r.i.'s
royal! power over all Ltati-s ard snbicttca,
within her domminions, we ihevcfure ooe
assijjne, depute and appoynt,und by iheis
p'sents doe give full power and aucthority
and juris<ticti')n to you, or three of you,
whereof you the arcncbishoppe of Canter-
biu*ye or bishoppet of &c. for the tyiae I
beinge to be one, to tender and mmiiter th«
oath expressed and sett fourth in the said
acte, intituled an acte rettorioge to die
crowne the auncient jorisdictkm Ofcr ja
state ecclesiastieall and sp'uall and abo-
Ivshinge all forreine power repugnant to
the same, to all and every archebiatboppes,
bisshoppes and other neraons, officers and
ministers ecclesiastieall, and also to twerj
other person or persons appoynted or com-
pellahle by either of the said actes to taki
the said outh ol* what estate, dignitie, pre-
hemiuence or degree soever be or they be^
and to receave and take the same oath of
the saide persons and every of them, ae*
cordinge to the teanur, forme and effect of
the said actes, or either of them ; willing
and requiringe you, or three of yon,
whereof the said arcbebisshoppe of Cin*
terburye, or the bisshopps of Londoo, &o.
to be one, that after the refusall or refo-
sales of the same oath by any pemn or
|»'sons aforesaid made to certifye ns ac-
cordingly under the scales of yon and
every ot you as aforesaide, the refusall to
take the same oathe, and of the naniea, phecf
and degrees of the person or persona, ror re*
fusing the same otbe before ds in our cooit''
commoidy e called the King's Bench. More-
over our will, pleasure and commaaDde-
nicnt is, that you our said commisBioiien
shall diligently and faythfuUy execute thif
our commisiou and every parte ani
bniunehe thereof, in manner and
aforesaid, and according to the true ]
irijL^e ih'.M-eof ; notwithstandinge any appd-
iacion, provocation, priviledge or exemptioD
in that hehalt'to be made, had, pretended, or
alledjjed hy any p'son or persons resiantor
dwelling in any place or places, exempteor
liot exempte withiu this our realme, any
our la\v(s, statuts, proclamac*ons, other
il^raur.tes, T;ri\ cicdges or onlinaunces, which
i;c or MiR\e seme contrary to the premiaei
ijOlvvitlisi.indiuge. And that for the better
credit and more manifest notice of your
doiuge i;j the (xecuc'on of this our com-
ifiission, uur pleasure and commaundemeot
is, liiat unto youre letters missive, prt>-
cc.wvj, de^Tces, orders and judgements,
from or hy you, or any three of vou tt
aior. said, to he awarded, sett fourth, hsd,
mr.{ie, dc'crred, given or pronounced at
i^niljcth or Londou, you or three of yon,
as af*or('!»uidf*, »hull cawsc to be put ana af-
f \ed a sculc engraved with the Ri>se and
lac CV.v. nt? over the Rosse, and the letter
C. I'efore and the letter R. af^er the same,
with a ringe or circumference about the
sjimj* scale, conteyninge as followeth:
^;igitt' Coiu'issar' Rtgn' : Ma 'Ad' Cas' Ec-
clcast' : And fynealiy wee will and com*
maundc all and singular justices of peace,
maiors, shc^riffs, bayliiis, coostablea, and
other our officers, ministres and'sulgects in
all and every place and plaoea,
and not cxempti within our i
nil] ^ fid Su^nding Dr. John
* tkoy kitowledg'e or request ii om you, or
* lbrf« «1" you, i* hereof you tbe Bai4lttldiC-
• bi»Jioppe oJ" CanierUurye, ot iIj? fiislioptici
* rtf L^riidnn, \\ Jiit liisttr, Klve^ \V tucif^lur,
* Ht. J)ii»!f-T, Ntjriiii*'i, r'liiem'it* r or Ho-
or you the
. or you the
iiHi» \c. in lie one iH" Ihem
yiveii or made !*> be ayd-
ftir the due
i,2- .j.u I •' ■■'" nt Ihl-y
try nl'ilietti teiidiM^ le, mui
till i..it> (0 the cu. . -. T^ "L ihcire
lis. Ill wUnes5€ \r hereof,
tl theis our Icticrsol com*ii-
* mou with our ^rcut seal, if itnesi
*oiir»* ' ;unl>ury# the ixivth dayeof
iprill; iu the tii^hteenth y«are of our
liOnl Coke 4 Inst, n 36 says : " The first com-
ffiiiKton U[ton tlicse statutes, whereby alKiut
SO bishops were deprived^ and many olberx
ofthetKipisb clergy, is said to be loBt^ ami
iDmneu It is not, as it otig-ht to have been.
And it is affirmed by some that have seen it,
that it passed not above twenty sheets of
paper copy vrisc; but now the hig^b eommia-
»iori cuDtaios above three hundred sheets of
pa|i4*r. And it ts Ukewise affirmed, that
j\'. tn;fh com mission was inrollrd (as
til ;iit to have bceo) ttnttll my lord
chrinct nor Egerton's tirue, so as no uiiin be-
fore that tiiiu\ could know wbnt their juris-
dictiau was till that time.'*
Againft the proreeftin^s in the Hi^h Commis*
•100 Court 4 ' hnd beeu iiiadem the
t^tjtn of Jo. List* hi llic following'
r* rouj^Haints were mudi imbiiter-
c i the Stat. 16 Car, U ibe Ct*urt of
Siiir 1 numfier and this Court were both iilKi-
Jiabal. The a<:t (16 Car. 1, cap, 1 1) con-
eerning the lii^h Cotauiis^iioD Court ih uu
folia ^ » :
• Wlicreas in the parhameol liohlrn In ihr fit^t
* year of tlie ro^ii «f ttie late i\ j-
* teih, late tiiurii fif Eiinfland., ti' ui
* ai't iiKiiit Ucd, iutit^led^ An act
^ re5t<)rii>^ i n llir- aii«"ii-nt ifirisdtc-
10 ov«r I i-
lil, aoil .' . , f-
^Ugnant ti> iUc itniuc ^ ta uhi^li act,
lOiiifut other thiuijB, there in contained
daus«, brauvbt aiticlc or i^'^iitcnci^
bert'by it wuh enactcil U> this rfl'ect ;
imelVy thai the said late queen *a Lig:h-
Qmi tier heirs aud ttooce&fiors^ l<iog9 or
iwxm of ** - I . -" i,j have full
>wec ai! of that act
l«tt«irH ^ v,J<*at wal of
Iifc^laotl, to ji^nierii^ tvAmv uml ;uilti<jnze.
BharffM
A. D* 168a
[1118
iu\
I.,
Im
ll.T
fl
'jtoidaouid pica"
nt*'*, hvi iivirM or
or per^utui btijig
* naturaUUom aubjecti to her lii^rlmrw^ her
* lirirfi or 6ueces»or«, ai her her
* heirs or tuccessors ihonld < t to
* eitercise, use, occupy and ti^t;<.iu« under
' her highness, her hi^ai^ aud fiucce»sor», aft
* raatiner ofjuriiidieticinis, privileges anil pre-
* hcminci)ci\ in any wise iimchiosr or con»
* cerniog^auv Fpiri". ' ' ' luris-
* diction witliiii tli*.- Und
* and Irefamf, or ony nun-i nei m^uut^s do-
* minions and countries, and to visit, reform,
* redress, order, corr"^' ■^' •' n,..^,,j <jt .^jj,^
* errori, hfcre6ie«*» s nceg,
* rontempts and i ..:,.„ ,„„.iJLver|
* which by any manner of spiritual or eccle-
* aiastical power, sutbority or jurisdiction,
* can, or may lawfully be rcformeil^ ordered,
* redressed, coricctcd,' restrained or amended, '
* to the pleasure of Almighty God, the in*
* crease of virtue, and the conservation of '
^ the peace and unity of this realm : Ani
*■ that such person or f»cr«on9 so to be named.
* aasi'^ned, authorized and appointed by her
* h\g\mesfi^ her heita or 5iicce8!»op<, a|](er thi
* said letters patents to him or them matle
* and delivered, as aforesaid, sliould have lull
^ power and authority, by virtue of that act,
* and of the said letters pstenls under hot
* hlglincss, her heirs or j^^ '-^ - - ■-- ^'^ rxer-
* CISC, use and execute r ae-
* cording to the tenor a r.i- - U l' said
* lelter^ pnients; any matter or cause to the
* coDLary in any wise nolwithslandiiijf.
* ^iid wheieaii by colour of some words in I hi
* uforr:;:iifJ branch of the said act, whereby
* C-' r5« are authorized to execute
* tlt^ ionaceurdiug to the tenor and
* otlcci oi lite kind's letters (latenta, and by
* letters jiatents |;Toijnilcd lliereu[Min, the said
* coil rs have, to the f^ieat and in-
* »i! i'otii> and oppression of th«
'kit.
Mb.
*bt;
« m:- ..:... ..
* en^ucil tfi i)ie Um^'g stUfjects, by occasion
* of tile £aid bruitcb itud eottiuuNHinins tssiird
* thereupon, ami the <
* Thert'tbre for the repre^
* of the Ibresaid abuses, mtsehiets and Jucoii<
* veniencies in time tiiconic ;
* Be it enacted by the niOj^ « most excellent
* tuajesty, and the lords Ihd commons in this
* preiient par ha meat ni»enibM, aud by the
* authority of the san^e. That the fbreiaid
* branch,* ' 'or senti'nce, iihaU
* from hi .<aled, anoulhni, r^J
' voked, umunji uMi, uiii Utterly made void
* for ever ; any thinj* in the sard act to thtf
* tin .1 Ltnv e^irt
* shall be tm or ap|M^iiitcd
* within this r, _^ i, or noinmioii
» ot W alvx, whicti shall or inav have the like
* power, juri«dJctioa or authority ^ aa ikis aaitl
fine and imprisoii
other auilionty imiI
• ttl jurisilictiou re-
divers other great
-uiencies have als^
1I4S]
2 JAMES IL Proaedingi against Dr. Henri/ Compton^ [1144
* high commission eourt now bath, or pre-
' t«tidcilt to have ; but that all and every
* sticli Jettcm imteuts, commissioiiB and
* p-AQts, made, or to be made by bis ma-
* jesty, bi* heirs or successors, and ail powert
* and authoritiefi granted thereby, and all
* acts* sentences and decrees to be made by
* virtue or colour thereof, aball be utterly
* void, and of none effect.'
Concern ing this Court, see more ia Coke*a 4
Intst. cap^ 74.
It may be worth notice, that Echard, vol. 1,
pp. 507, 50», speaks w rtli rej^ret^ if uot with
iiiirrow, of ** the niin of Uie^e two Comis,
m^hlch might have been of excellent use both
to church and state."]
Tti6 King's EcclehajiTical Commission*
God,
and
IreFaiaU dcfeuder of the faith, <Stc, To the
* most reverend tatlter i» God, our rig-hi Irus^t^'
^ nnd well 'beloved *xjuosellor, \\ illr&m I^oid
**IaMES llic Second, by the gmce of i
* king^ of l^nglaiid, 8cotland| France
* arthbiahoij ofCauicrbury, pnmateofaU E»jf-
' lan<l, Biid miiUt>pohUin. And to our rig^ltt
* trusty aud rig^bt well-bdoved counsel Fu/,
* Geoi^e lord Jeffereys, lord chanoelior of Eui^-
* land. And to our ri^ht trusty and riy^ht well-
* beloved cousin, and councellur, Lawrence earl
* oi Rochester, lonl high- treasurer of Kuj^laud.
' And to our rijs^ht trusty, and right well-
^ beloved cousin and counsellor, Robert earl of
' Sunderland, president of our council, and
^ our priucipal secretary of slate. And lo the
* rig^ht reveraiid father in God, our rijj;bt trusty
* and well-beloved counsellor, Nathaniel lord
* bishop of Durbaiu. And to the fighl reve-
' reud tuther iu God, our right b'usty aud well-
* beloved Tboains lord biabop of Kocbesitr,
*' And tci our fi^ifht trusty and well-belovL-d
* counsetlor, ^ir Edward Herbert, knight, lord
* chief jai;i' (' of the pleas, befoi« us to be
* holdeji. Greeting''* We, for diver*
*good, M ^ ^ t! necessary causes and cou-
* i»ideratiouAf us, hercuuto especially movinj^,
* of our mere motion, and certain knowledge,
*■ by force and vhrtne of our supreme aiitho-
* nty, and prerogatit e royal, do assign, name
* and authorise by these our Icttei^ patent
* under ihe great teal of England, yon the
* said lortl archbi&hon of Cantt^rbiiry, lord than-
* celbr of Eni^^laud, ford high treasnriT of
* Eii^land, lord president of our councill, lord
' bwhfip of I)urcamt% lord bishop of Roche*ipr,
' and our chief jw*>tice aforesaid, or any three ,
* or more of you, wlit^reuf vou ihe said lorfl |
* chancellor to be one, from time to time« und
*■ at all times during our pleasure, to exercise, j
* U-se, fjocniv and ♦ vtrnre luuter o<, i\V< Mtrnntr \
•c.i ^:-« ;
•iu . .:
* tual t^i ^LU.
♦our rratut
* \Va1ei»t and
■ contempts, and eoonnities whatsoevrr^ whieli
« by the spirittial or ecclesiasiical lawa of this
* our re-alm can or may lawfully be refonnad,
' redrcH$e<1, corrected, restraiueil, or amieDdedi
* to the pleasure of Almisfhty fiod, and incrcaaa
* ofvirtue, aiidthcconserratinn of the peaocaad
* unity oj this realm. And we do hereby gift
* aud g^i ant unto you, or auy thfee or more of
' you, as is afore^^id, whereof you the wiid lord
* chancellor to be one, thus by us named,
* aBsi|p»ed, authori^Lnl aud ap^Kiinted^ by fofOt
* of our supreme authority and prerogitire
» I'oyal, full power aud authority, from tiioe to
* time, and at all limes, duriujj our pk-asute,
* under us to exercise, use, and « '< th<;
« premistis, acoording^ to the u-n^ t of
* these our letters patents, auy < i-
Mo the contrary, in any wise n'«
* And we do by these presents give li i -r
* and auttiority unto you, or any thn*; i n
* of \oO| aa i« aJuresaid, when ^ ^ - i
« lord chancellor to be one, by ali !
« means fiom tune to lime hi
* our jdeosure, lo enquire of all
* don«-
* and (J J- ._ , _ - L
* laws of lUis our reahu^ m auy com
* boroujjrb, or other place or (daces, ♦'
* not exenipled, ^^iihin Ihin our ri-Hhu *ti Kug-
^ \mu\^ and dominion ni \VaU% and of all 4a<l
< every olfender or utft^ndcis therein, and J
* and every of them, tn order, corrtsct, I
* and punish by censurti of the church*
^ also we i\o y:i\e and grant full power j
* authority nolo you, or ai
* you, as H alorcsaid, whcr 1 1
< chancellor to he one, in hkf ntainn r
» said, from timt^ lo Uoio, and at nil tiuN<i \
* durinqf our pleasure, to enfpur*' '■*' - b i
* and call t*etore you, all and c*
' cal person or persons, of \Ui. -
* dignity btfcerer, as shall ofieiul ui any of »!»• '
*■ particutitrs before lueutioued, stnt liKiiu «Dd <
* evtry of them, to oorrcct and ; nth
^heir misbeimviouns aud mib , by I
« suspendin^^ fir deprivin«^ them frfMu ull prouK*-
« lions f^eleMastical, aud from all lutic^tonft^n
* the church, and lOjnHictMurh yth< >
4 ments or censures uiK^n them, aci
i the ecclei^iasijcal laws of this reahii. Au4 J
* further, wo do give fuJi power nud autlioriiyj
I unto you. ' *
( afoi^esairl,
t lor tube 4iut, i.v *ui
t ner aud furui a:!» is ni 'k^M
uii^UcuuuN, vv^tlun this
!id, utid dominiofl of
rulorm^ redress, ortler, |
• From the folfowinn: p!is^rijjt*a in Nsrc
Lutti^eirs >I8. nU li^a^o/*!
i. I it seems that tht . Coma
exf rciseil their jmi^ictiou u* Ciu
monial ;
'' Jamvary J9tli 1606. The wMr boU
*«()ifn«tf aiid mjicnd all luch ohu^^ olfcqct^^ 1 the l>ukc and jJuolwiMl' l^ocMk ptttf tkffJ
* TfOf 1
FGnn
' rapr"'-*, ^■'•— -t 1— :t-i
or f>ffer»ce«, which are i
* (aw , ui *i*;. .,L.. ,v..;m,, txitiimitte*! or done, or
* bere«iUT to be curamitteii or done, in any
* ulace tx. rupi or nat exempt, withiu this our
* Ff to Ibe teaour of the eccle-
•«»^* nat U^balft granting you, or
* any tiiree or wore of you, as is aforf^airl,
* whereat' you the snid lord chancctlor to be
•one, full power nnd aiitbority I o order and
* award such piiniBhmtmttoefery«ucboifi?nder,
* by censures of the ctmrcb, or otiier I a vrf ul
* wiys» tt% i% aforesaid. And further, we do
' ^tve ftill [inwcriind authority unioyoii, or any
* tJirccor more «<f you, us iu iiforetaid, where-
» of you the fi^\\ lord <! r^ ., be one^ all
* and c»«ry offemler aint tii any o| ihe
I |^p.,.nu... ..Ttf| ftUo all ^11. .^ . V yon,' or any
* iti ' *d you. as IS aforesaid* whereof
* jfiiL : _ ul Unt] clraiict'llor to be titif, shall
^crein to Ik- stjtpecte^t pers<ju5 In any of Ihf
» prrtiiJM's. and ih.'tn m examine, touehiui;
* ^^ V of ihe premises which > oo sbnM
* <*'• '-.t them; and to proceed a ^piinist
* Ih^'nt atid evi?rv of them, a*t the nature and
* ijfTaJjty ofthf'orfLntce, or^n!$])icron in ihwi belialf
'ah : nod a!«o to call all siuch witnesses,
* f>'^ rier-ci^n f»r pf^fTson"!; th?it ran inform
* y i yoit^ or
* ft > ^vbere-
* Vm 1 r > ' I r M ' I n. r I • , ; • , "-
•^ of the truth of tl>
«uf ^ -« '< ■-,, 1.
•ft
'Ci: ..
* pmons vf '
•in th»*irup^. vu, or uny three
' ur more of you, \is i!( uiare»u<t« whereof yuu
' the &ijd lord chancellor to be otJ<^, at ) our
* cnllinji^ and c<»niftinndment, or el«ie not in
* obeying', or in not acconipiishinif your ortlrrs,
* d*%'rrea« «nd cornmuudiatuti, uf any ihiny^
* l«tichius4' the prrinist'ti, or uiiy pari i hereof,
* CM !• hmoch or (dnuse contarueil in
Mil sHwi, that then you, or any ihrt^
'oriiKu* < I 1 .iforcsiiid, whrrrof^ou
* the aaid h»i -I r to be one, aha II hTive
* fuN (>o\vei 1*1 ii ..m.i -Hi'.' to punish th«* fsuroe
* (wrson nnd )>eiion* sio offendiritT, by exrinn-
* itMim* i< im ir,rw iivj^n^ drprivmioo, or Oilier
' < 1 ; and *.*hen nny per-
* >' 1 rir proHcfUted before
* V i-^aid, tor Jiny of the causes abnve
* ev (I the mst^ntv and suit of any
* pc'ii»4io |'it»si-<mt»ni^ thf ufienct* in that behall',
* that then you, or any three or more of you
C«i# hi this l^olU*etion, a. p, 1091, 1&92.]
In**' ' * ' iin»e l>eforv ihe Ecd<^
*ii» they Imve determined
tb** 3.1M . iiiiM . Mf I 41 iier lj5<K)/* per ann, lor
hrr it»tkint<'nui)f.'e.
** F«ljntary Kiih 1601^, Tf^- '- -' ^'^vcntry
minitiritifd tfi utterul ihn I ii Cotu*
outjiecomplauit (;i 4,.. .....'*
*u. Hie said h»rd
Hid any per?*onor
iie or dtsobedioiTt
Vkn is aforesaid, whereof you the ^id lo^d
chancellor to b« one, shall have full power
aud authority to award such rt«t« and ex-
pences of the suit^ as well to and against the
|>iirty as shall prefer or proarcute the ^id of-
fence, ns to and uirainst any party or parties
that shall be con vented, acconling' aa their
oauses shall require, and to you in justice
shall be thought reasonable. And further
4»ur will and pleaiinre in^ that you assnme our
weU-belo*ed subject Wtlliam liridgman^
€s<piire, one of the clerks of our countnl, or hia
sufficient depot y or deputies in that behalf, to
be your register, whom we do by these presenti
depute to that effect, for the regiatriog^ of all
your acts, decrees, and proceedings, by virtue
of Ibis our commission ; and that in like man*
ner you, or any three or more of you, whereof
you thr said lord chancellor to be one, by
vniri ilp^rri^tions sball appoint one or more
I or messengers, or other officer or
I cessary and convenient to attend
upon you for any scrrice in thi>% behalf. Our
will and expresH commandment id«o is, ihal
there shall he iwo puper books indented autt
madt', the one to ii'main with the .said re-
iri'^ter, or his sutlieicot deputy or deputies,
the other with nuch t^i'^^tit und in nucli
place* us you Uie i^uid comuiissiooers, or any
Ihn'eor more of ^on, whertnd' yon the said
! ihanccllor ti» b** ooe^ bhall' in your dis-
ii»; think mo^t tit &nd meet ; in both
V, mh books shall he fiirly entereil all the
aet^ decr**e'S, and pr<>tei*diti^s made, or to btf*
inad«', by vntoc ol this nur coiiinuf>sion. And
whereas our »lnlver^4ito■'^ of Oxford nod Cam-
bridge, am! di;ii^ . itli diid nnd collegiiitc
chill ehev. schools, ami'
other eeri+ uis, have beetr'
erected, toonded, mid endiiwtH.1 by several of
our projjcni{or.», kioL^ u *d «|ueen& of thit
realm, and MOine o^hi r by the charity and
bounty of some of their aubjecia, a** well'
wiihin our UDivtrisities as other iMirts and
places^ the ordinances, rules aod atatitlea
whereof be either imb^/zled, lost, cor-
rupiefl, or aUo^eiher imiKitect -, we do there-
lore iK^ive full power end authority to you, or
any five or moreof yon,of whom we will you
the forenamiMj^ the Ion I chiini-ellor aliviiy^ i<t
bi: one, to can He and cotiifiiand in our name^
all and !>ingu)ar the ortlinances, rules anil
statutes of our jsaid uin»eri.itits, and all anil
every caihtdral utitl collegiule churcho!!, cul-*'
lc;2;^, granmiur-schoolftj and otln^r eet-lesias-
lical iocor;>oration3>, together v^ith their se«
rerul lelf er!» patents, nnd olh»T writiux's, touch- '
iug, or in any wise concerning their fsevcral
creel ioti«iurH! toundtLlionii, to bi' brought and
exhibiteil het«>r»* you, or any live *»r ttuir** of
you, as i* aforeKiid, w hereof yon iIm i
chancellor to be one ; willing, com
aiid I ' _^of yon, or nn> '* lof
yon, qd 'w hereof V lord
mrj
2 JAMES II. Proceedings against Dr. Henry Compton, [114S
« dinances, letters patents and writings, as is
« aibresaid, the same to correct, amend and al-
* ter ; and also where no statutes are extant, in
* all or any of the aforesaid cases, to devise and
* set down such gx)od orders and statutes as
« you, or any fi?eor more of you, whereof you
* the said lonl chancellor to be one, shall think
< meet and convenient, to be by us confirmed,
* ratified, allowed, and set forth, for the better
< onler and rule of the said universitips, cathe-
* dral and colle<(iate churches, coUejE^es and
* tCrammar schools, erections and foundations,
* and the possesjsions and revenues of the same,
* and as niay best tend to the honour of Al-
* mighty God, increase of \inud, learning and
* unity m the said places and the public weal
< and tranquillity of this our realm. Moreover,
* our wdl, pleasure, and commandment is, that
* you our said commissioners, and every of
* you, shall diligently and faithfully execute
< this our commission, and every part and
< branch thereof, in manner and tbrm afore-
* said, and according to the true meaning
< thereof, notwithstanding any appellation, pro-
* vocation, privilege or exemption in that be-
< half, to be had, made, pretended or alled^ed,
* by any person or persons resident or dwellings
( in any place or places, exempt or not exempt,
< withm this our realm ; any law, statutes, pro-
< clamations or grants, privileges or ordinances,
<* which be, or may seem contrary to the pre-
* miscs notwithstanding. And for the better
« credit, and u:ore manifest notice of your so
< doing, in the execution of this our commis-
* sion, our pleasure and commandment is, that
* to your letters missive, processes, decrees,
c orders, and judgments, furor by you, or any
« three or more of you, as is aforesaid, to be
* awarded, sent forth, had, made, decreed, given
< or pronounced, at such certain public places,
< as shall he appointed by you, or by any three
< or more of ^ou, as is aforesaid, fur the due
c execution of this cur coinmission,* you or
* In No. 31 of Owen Wynne's MS. in the
Library of All SonU' College Oxford, is a re-
port frou) the Solicilor General, sir Thomas
Powys, cont;iinir.g a draught of Uie comniis-
flion which h stilcd a commission < for exccu-
tiou of the L.^.ws Ecclesi»utic.')l, within this his
Majesty's real 111.'
Ncal, in his History of the Puritp.ns, fails
not to ad\cTt to liie inco:i«^uity of a Papist
prince exercising fccj'.es.isiiod supremacy.
Kennett, 3 Co:ijj.!ete i&i>t. p. 454, iu a Mote
(3 cd.) says :
** There was a tocon:1 co:n!;;:s.si: -noftiie same
tenor authorisiiii^ an- 1 :■; ;r.hi:ir.;r i*>.e L'Jid
High Chancellor of E:i .»:ar.:], t!;C L(;:d Trea-
surer, the i^urd Preo.dent oi'tlic Co:-!ic:l, Jol.ri
•arl of l\lu!Lrra>e then Lord Cii:.!r.5'LTljin, tho
liords Bisliups oi' Durham and Itochcstcr, and
the Lord Chief Justice Herbert, or any tr.rce
or more, of which the Tiord Cbanci^llur to bo
one, to examine and judge in causes ecclrsias-
tical, Teste Meipso apud Westmonasterium
INo?. RegniSecuDdo, 1686: And 1 tiiiok
' some three or more of yon, as it aibrenid,
' wherof you the said lord chancellor to beooe,
* shall cause to be put and fixed o seal, eogrt*
* ven with a rose and crown, aod tlie letter J.
another commisiion dated the ISth of January
following constituting and appointing tbe Lonl
High Chancellor of England, the Lord Pre-
sident of his Majesty's Council, the LorA
phamberlain of his Majesty's Household, i1m
earl of Huntingdon, the bishops of DurhanOf
Rochester, and Chester, sir Robert Vin^^
L. C. J. of B. R. sir Thomas Jenner, one ot the
barons of the Exchequer."
This bishop of Chester was Cartwriglit, of
whom Burnet says, that he** was a man of
good capacity, and had made some progress in
learning. He was ambitious and servile, crael
and boisterous ; and by tlie great liberties bs
allowed himself he fell under much scandal of
tlie worst sort. He had set himself long ts
raise the king's authority above law, which bs
said was only a method to which kings might
submit as they pleased; but their authority wti
from God, absolute, and superior to law, which
they might exert as oft as they found it neoei*
sarv for the ends of g^veniment : so he was
looked on as a man that would more effectiisUy
advance the designs of Po^ry than if M
should turn over to it. And inifeed, bad as bo
was, he never made that step even in the moil
desperate slate of his affiurs." 1 OwnTimsi,
695, fol. ed. Burnet also says, tlutt Cartwri^
and Parker were pitched on as the fittest ■•
struments that could be found among tlw
clergy to betray and ruin tlie church. Sm
more concerning Cartwriglit in the proceed-
ings against Magdalen College, Oxford, a. d.
1687.
Against the aboTe commission sir Robert
Atkyns wrote the following Discourse concen-
ing the Ecclesiastical Jurisdiction :
A DISCOURSE coNCEnNiXG the ECCLE-
SIASTICAL JURISDICTION IN TBI
RRALM OF ENGLAND: occasioned
BY THE LATE COMMISSION IN EC
CLESIAST1C:.\I. CAUSES.
THE preanihit; ackuow ledges. That tbe king
justly and righifu!!y is, aud ou^ht to be, su-
preme head of the vhurcii of England, aD«*>ii
so re cog nisei 1 by the clergy in their convoca-
tions. And it IS enacted, That the king aod
ills successors shall be taken, &c. the only
f.npreme l.ead in earth of tbe church of Bug-
!ati:). And shall have and enjoy annexed to
tl)c imperial crown all jurisdiction, \:c. ao-
tlioriti<s, &c. to the said dignity of supreme
hei^'J of the same church belonging. And thai
the king and his heirs aud successors, kings of
this realm, shall have full power and authority
from time to time to visit, repress, redress, le-
tbroi, onler, correct, restrun and Mnend all
such errors, heresies, abuses, oflbnces, osn-
tempts and enomitia wbitaoe? er Ihaf Ml
1149]
firr m/^ StuftmSng Dr. John ^hnrjh A. D. t6S6. [1 150
*tiid flgure IK befbre, ami tlie R. hfXiT t!ie * * C" mi mission rinomm Kfgtre BlitjcsUlJi ad
*«Mi«v Willi tmg ore -as* Finally* wc will
*mine«etl, c^ntainin^ a^ ; , , 1 singular oibVr our tnt-
wliwh br any raiiniicf of f piritttBl auth(»nty or
J irht, or niiiy, lawfully lie reff»rtn-
i, ordered, redressed, flfc. Any
t'ustijiii, fort^ipn laws, fbr«:igii lathorlty,
Tipiion or uiiy thing to ihe contrary not-
landirtip^.
/K«lB,Tbw aetdoth not msketbe king to be
flic tttprennc head of the church of England,
btu ai'kno«|t'd^-rs, that he ever both been so
£lis reciti'il hy the Filatute made in the same
■" anient of 20 H. 8, c. 3. the act for the
fruits. See the preambli-s towards the
Htlef pari, being the first paragraph.) Hee
•Jio the oath prescribed h\ tin- .tatiit.^ nf 5^5
11. n, cap. 1, for the h
tlic nth ill Mr. KeWi ^ -
tiites at large, very full to this purpose, to shew
<l»aft the act of 20 H. 3, cap. 1, s^ave the king
Mile, but only acknowltnlged, that he
: a riffht to it, and that tlie bi^bupof
LJIome bad hut usuqtetl it.
I ioi li the act ol 20 H. 8, cap. 1, g&Te the
rliltf no new title, «o it jfave him no new, r»or
furUier BUlbority in spiritual and ccrlesiasticai
Ibings, nor oier spiritual aiul ecclesiastical
^rufinfl, than what he had before.
Therefme it is to lie etiquircil what iuria^ic-
tioa or authority tie kiii;^'' had hifore the inak-
iagof that act, and hinv the ccolesiftsdcalju-
■YicdicttcKi was of right and duly before txtt-
and adintntsiered, t'lA. in what courts, by
rules, lawf or canons^ and by what |)ersonM.
19 clear in law, that the king him Keif
wmiw^ly in his own royal p<?r*ori could never
take to biniscif the heariu'^ of any ranse pc-
clada<ti(*ail or temporaU and adjudge and do*
tirmitff' the- c^u>ic himself: For by the law
and 1 ^u of ihe realm, lh»* kiug hath
coin I bi» power judicinl to divert*
conn*, vniiir iti one courl, ' ' ah
h held in sir Ffl. Cc'lr' .j
at the lower end of ;' lo.Miiie
of fol. lUr. All 1 ;i? and
jmiCerMingii in law ».,. ....-,,..,.,, »v, .,ie courts
of jtisitir**, und tise kiu;^ duth jurfoi^L' by Ium jnj««
liCf-iiv. S< f :lif n4-ciurK llr't i* i .-. l.v l)\i^ rririn^ of
m ' '•»>
«a-i ^ ■-..('-
cli!«iiHrtiail cloves as wrii as teoiporal ; for
fnrca^ man ktiowis, that there lave been from
HiQ ftnt constitution of the kiitf^'dom ceit^m
^ntrrt* and jorif dictions eret trti nithin »hi!»
r< ' ind detcniiining of sj^rituiil
»u»es. 8tldcu*i HiHlory of
All tbi» i* excellently well ict forth by the
p-" -" ♦ *' Mtuir of 2i H. 8» cap. 12
Thcil H^ the kinjr hftth
■y.^MM' hcfld of the realm (which
:< by wuy of metaphor^ and
latiou to some (Body ;) therr-
itatute tn the prcnmble procc«d«
» ^ ou t^hal tb« bod/ is to w UicU iUd
head relates, tw. The liody politic of the rculm
* consists of all sort and dcgrtes of people (wiihiQ
this realm) «lividcd by names of ^piriiualty
and l< The statute proceeds ta
meoti I I r>' power, aiuhority ami ju-
risdiction tiiL King^ bath within the realm in all
causes. It sherjs tts how that power is dit*
tributed, and by whom to bc«xercised. Not
by the king in penton, nor at hh \iii] »nd plea*
sure in any arbitrary way ; but as that pre-
amble farther instructa us, The body spirit ual
h^h power in all <^ n^tr^ olivine nod spiritual to
determine and tc? ull such otticesand
duties as to their 1 - lual dolh appertain ;
the like is declared a^ tu temporal causes to be
in the Mtlu r r»art of the said body politic, called
the t' And both their authoHtiea
and ju^ do conciir in the due adminis*
tration of ju^iit r, the one to help the other*
The preundde of thestat. of '^4 II.B, c. If,
t>l further shews, how that this ec-
tji ind fipivitual jurisdiction, bad been
< * ' ' I :d by several smcient acta
1 I be USD qiai tons of the
biN-n>|T"i i%i'in»r yui>\ tlint toiv^r before the re-
formation of religion.) li r ^mo* the enact-
ing part| which does oiilaiu, i hat all causet
determinable by any i^piritual jurisdiction, whe-
ther they concern ihe king hiiiisell (sis the eaie
of theKmg's divorce) or any of the tubjectSa
shall be heard, exauuned, discu«%cd, clearly,
ttnally and definitively adjudged and deter-
mineil, within the king's jurisdiction aud au-
thority, and not eUe where in tsuch courts spi-
rit uaf and temporal of the same, as ihc nature
of the cases shall re<|uire.
Then the sara«' utalute al^Witi* In wbal;
ct>utla, and by %vhat slips and methods, suitft
and pr<»ceedjng5 concerning 8iorltu«l and cc
cleKiastical nmttcrs ouglit to be hundted, sc*
paragraph 5, 0, 7, 8, 9, 10, It begins with tha
arch-deacon*» court, which is infimi gradUi
and process gradual Iv fr<im the arch-d<
tothediorc^an, frotu him to the ractroiwlii
and at la^ it «uentiooa the convocation, as the
suprerncst.
Note. That further ap|>e*ils have been givea
by several acts of parlittment, as by ^Slt^ U»
c, 19, from the urrhhiwhop or meir<tp*ditan to
the king in Chancery, which is by comroi!»i««a
of Delegates, *tc. 'And it hath been rt*aolvt;<|^
That though the actcof 24 H. B» cap. 12, ^ud
of 25 H. a, cap, 19, do U|ion cerUun ap)»eut«^
!f\ake the sentence definitive as to auy turlb^r
apjieal, yet the king {n% supreme head)
grnnt a coiiunis^siion of review : S«*e th«
of H alii well ucainst JtrToissirKf^"'*^^^ M^
Ucportx, fof 46'i, and in the fu in^ fo|^
78V, in tht! rft*.«* of Biril again , jiu^ |^
ur Edw. Cokt^''*4th Institutes, lot. 4541.
\ud j»v tb- ki'yi['n ec« temia^^ical pow^r %i^^
I ' fttodiimentui Iwws «r t\^
I .^. . . v^aeveraieuurts^KtliioVv
I15|] SJAMBSIt
* nbtert andfaljeelto in all and cf«Kj jphee and
* places^ emnpt and not emnpt, witbin our.
* realm of England, and dominion of Waloa,
tnentionad and confirmod by the aaid aeteral
4cta of parliament, and may not tiiaralm. be
txercisea by an v* other, bat by mdi courlay
and in anch method and manner aa by law,
and the aaid acta of |iariiaibeat it la pro-
vided : So alpo those courta cannot proceed
arbitrarily, bat by the knowp and settled eo-
eletiastical laws, constitutiona and canons that
are in force.
. By the act of 1 Elis. cap. 1, entitoled. An
act ftr restoring to the crown its ancient juris-
diction orer toe estate ecclesiastical andsu-
ritnal, &c the serenteenth paragraph m
l^ebie's Book of Sututea, it is enacted,
That anch jarisdictions, &c. spiritual and ec-
diesiastical, as by aay spiritual or ecclesiastical
power or authority hath heretofore been, or
mav lawfully be, exercised or ua^ lor the
▼isitation of the ecclesiastical state and per-
aons, and for reformation, order and correction
of )he aame, and of aN manner of errors, &c.
abuses, offences, contempts, and enormities,
ahan for erer by authority of this present par-
Imment, be uuited to the crown.
By the 18th paragraph of that pet the queen
and tier successora have power by Tirtue of
this act, by letters ratents under the mat seal,
to,assign,j&c. (as often as they shall think meet
and for such time) such person or persons, aa
the queen, See. shall think meet toexeroiseaU
manner of jurisdtctiona eodesiasiical or spi-
ritual ; and to ?isit, reform, redress, order,
correct and amend all such errors, &c. abuses,
offences, contempt, and enormities wliat-
aoever, which by any manner of spiritual or
ecclesiastical power, authority or jurisdiction
can, or lawfully may be, reformed, ordered,
redressed, corrected, restiaioed or amended ;
and such person or persons so to be named, &c.
shall have full power by virtue of this act, and
of the said Utters patents, to exercise, use
and execute all the premises according to the
tenor and effect of the said letters ^tents.
See sir £dw. Coke's 4 Inst, in his chapter of
Ecclesiastical Courts, fol. 324, 996, and see the
Sd Observ. fol. 326, observe the words, yiz.
It was enacted out of necessity, &c. and ibid.
I<f«ces8ity did cause tbis commission, and it
was not to le exercised, but upon neceiteity ;
for It was not iotended, That it should be a con-
tinued standing commission, Sec.
That the main object ot that act was to de-
prive the Popish clergy. See fbl. 332 Alraere's
case, and Taylor and Masvies case, left to the
proper diocesan.
Upnu the last recited clause in tliat of 1
Eliz. was grounded the late court calieil, The
High CoinmissiiHi Court: From which act it
may be observed and collected, that it needed
an act of parliament to give buch authority to
the queen to grant such letters fiatenta, or
commission ; and that without an act of nar-
Uamtnt aoch commliwaii cookl not hift Dosa
PfomdJagB MgAui Dr. HmgCf't^M t^lM
* any tlnoe or i«iaioVyo«f 'm- Is
\ thoB, or aiQr
la
tabs
mwrn^g. I
For if tbe queen by her meer jirt*
l^gltiTe atjd supreme power m eocl^^lsi&tveal
eapwea could have grantt^t such comiiiis:>itiDf
ao aot of parlianie^t had been uuiirc^iAiJirj.
And the express words of the act am, That tb«
queen, &c ah all have power, [by virtue ot ihii
atet) alid ihe law hud (as hath been hefore ub>
ierred) diJ^tributeJ the kind's eccle^iaftioi
power and jurt«dictiou into several courts : ^
that, without a new taw, the like power cmii
not be put into any ^Hlirr [m^uU in dervigi '
of Iboae ordinary ecdesiaatical.eoiuti: ^
Secondly, note, this act maJBca ao wim rri—
nor offences, bnt giTca the ooamWoMn^
patenteea power to riait, reform, redniai &f.
all auch errors, &€. aboaea, offsooei^ uumLppH
and enormitiea, wbidi by any mumer of ».
ritual or eoclfesiytiefd power can, or UwMly
may be, reformad^ radrts^si d\ ^.urrtcttd, Su
In sir Edw.Cloke'i 1*^ I^k^oL ^9i Itwii
resohr^xl, Trin. 6 Jae. ' Per totam Curiinn/ ia
the court of Gommoa Pleas (there being tbfo
five judges of that tamif Cuki> being rhtcS'
juatice) tliat the high comaiissioners bv viniie
of their oomminon, and th;ii act of parfiiuneiii,
ought to proceed aocordbg to eccKesiuit^cil
law. Seoondly, if tiiair coiiuniiisio u giti e \kiM
any power, wnich wm not allovred or warr^ol*
ed by that act of par!bmeDi« it was not It^
(which proven thst ancb pawer camm be cx^
erdaed oy a oommisfeioii uuder the Gre^t Bm\
merely, without an act of p^rliumetit) »««
I>rake'a case in jnsdci^ C tokens Reports *if lb*
tune of king Charlea, fol. SSO.
^ There it is also resolved. That the long l|
his commissioners cannot alter the cccksias-,
tical law, nor the proceedmn of it.
And if the word (lawfully) had not been k
that act of 1 Eliz. yet it miist have beensoia-
tended, and the judges of the coounoo iMf
(who are proper judges, expositora and i
preters of acts of parliament) would harass
understood it; aa appears by the n»olntisn s(
tbe judges in the case in the saine 12 Rep. sf
the lord Coke, fol. 84, 85, and little itfirf
therefore was given by the Ji|dgea to oomaus-
sions under the Great Seal, which tbe ar^
bishop of Canterbury (Abbot) aaid, had ben
made in like cases m the timea of king Hm,
8. and £d. 6.
In the laat caae, ibidem, fbl. 85. the dad
justice Coke saya, he had seen the oommisMi
made to Crooawell (by king Hen. 8,) la bs
vicegerent, and other cpmmiasioiis to othnt
(by bis appointment) and he reim to the i
mission at large inserted in bia book of p
dents.
See in the aame U Rep. ^ air Bdw. Oofa^
f. 88. Excellent rules to be qfaaorvod MR
such extraordinary commiaskma, fife. Jwtf
ought to be soleroaq^ read ; for their .BnYJasi-
sibTy cootaid many Hpigi ^ffjm
tilt ooDunWoii 18 tM «p» Jilf!
Jqy Hot Smpending Dr. John Sharp*
A. D. 1686.
[1154
* akliti^i li«l|iin^« or assislin^ upon our com-
* tna mi I Ileitis, tu aud for tht! executing your
Tile eommiivMorirrs uiay every one of thcfn
r(f«|iiire copies ol' iUe crtmniis&toii : The com*
mi:»^i(niL'r>t ou|ftit lu sit tQ ikQ open place, and at
Note hIno, that SMch comnuSBions ouglit not
to be kept s(?cret, but they uuglit to be enrulled
in the cfitturery, that tlie subjects may l>e iiniter
m known autJiitrity* See mr Etlw. Coke s 4
lti«tit lol. 332, the tniihlle of that fol. And
VpOfi irregular and ille|jiil cotntnUsion^t in ec-
WNAstic^it cuufies, the remedy is prohibitioa
9ut of the courts ui VVe^itmrnsler.
In the same 1 Inntit. t'oL 340. the author
liath this note, Ao/a, Htcphen Gardinrr bishop
of Wirirfipster was deprited al Lambeth by
commission from kiof^ Kdvvard the 6, made to
ten persons, proceedtftg upon it, * ex Oificio
* m^ro mix to vel promoto omoi appellatione
>n, %iummane de piano, absque omni
li et risrura Jndicii sola Facii Veritate
* ioipecta:* The author passes no opinion upon
it. Qutere, by what luw this was ivnrranted.
It rontl he rare and extraorifinary, otherwise
•ir Kdw. Coke %Yoald not h^ve so specially
HI' t, but * a Facto ad Jus noQ valet
.^u:.e, that part of the act of 1 Eliz* viz,
lite IBih para^-raph (before verbatim tntn-
aoibed) nz, of the tjueen JEliz. and bersuc-
O^iaori grantiny^ such letters patents or com-
muaiom in ecclesiastical causes, in repealed by
iiie act made 16 Car. l, cap. 11. See it in
Mr. Keble^fi book of statutes at large. See
the lasi (larag^raph or clau«ie in that act of re-
1 of W Car. 1. It is enaeteiJ, That no iiew
irt Kball be erec4^ or appointed, which shall
ite the like power or jurisdicttoni us the hig^h
commrnaioners had or pretended to have; but
Ibat all such letter>i patents, commissions and
gratita, and ull powers and authoritii's thereby
riOtedi and all acts» sentences and decrees to
made by virtue or colour of tbem shali be
foid.
^ ",i- hie. act of 31 Car. 2, cap. 12, in
111 book ot staiiutes, does declare that
tbf "MiMiiir^ power of arrhbishops and bishops
was not taken a\%ay hv ihiit rrpL-alioLT act of IT
Car. 1, Clip. 1 1, (as this Uni act dutt^ it.)
Hut by lhi!« act of 13 Car. 2. cap. 12. in the
second para^uph. The aforesaid repcalini^
iCiof 17 Car. 1, and all ihenmttera jiod * buses
therein coni;iined (exct^pting what couof ros ihc
hi ssion court ; or, the new erection
4^i "^ 1 1 like court by i^muiission) arc re*
J. hee the third pn.raj(raph also tif the
of IS Car. 2. That the high commission
cotu-t shall not be revived.
H*) tlittt I coocetve, no sucb commisiion nor
kUtfrs palentt can now be (jfraiiteil, but the re-
licaliog act of 16» or 17 Car, stiuid^ in force
against it.
Ily what law or rules Crtmiwcll in the time
of kutg Honry ». and by v^hat instructions he
does not appear j lUt coajioiinlgaf lo
* precepts, letters, and olber processci, roqni-
i site iu and for the due executing of this onr
n^ake him vicar general (which was surety in
imitation of what had been used by the pope in
the time of his usurpation) or that of vice*
gerentin ecclesiastical matters (which seems to
be new and primit imprcmonu) are not now to
be found, of which Dr, Burnet in the history of
the reformation of the Church of England,
iikake^ some probable coojecturcs, fol. IHI, and
wherein consisted the diiference between thosa
two authorities and titles, and the commissioni
for the exercise of them, is not|easy to liod out ;
but the thing then principally designed was t«j
suppress the religious houses lielouging to the
regular clergy, which were great supports to
the Popibh tiierarchy^ not at all to mipeach the
lawful power and jurisilictiou of Episcopacy ;
for we find at tde same time as Cromwcll'a
commissions were in force, and had been then
but newly passed, fhat Crammer archbishop of
Cauterbury, made bis metropoUtical visitiitiun ;
under which (as I conceive) nR>sl properly falls
the couusanceof any contempt or abuse com-
mitted by any of his suffragan bishops j if not
in a provincial synod, *'* Archiepiscooi Jurii«
dictioni subsuut immediate suffraga&ti/' Hem
lind. F^roviu.
The exclusion of the pope In the lime of king
Hen. 8. made do diniinuiion of the power or
jurisdiction uf the clei gj, as to delermitiing of
ecclesiastical causes, or making canons, coosti^
tutions, and other sy nodical acts, as is rightly
ol>servcd by Dr> Heyliu in his Introduction to
the ilis^tory of Laud late archbishop of Canter^
bury ; upon this ground it is, that to this daj
they exercise all manner of ecclesiastical juris*
diction in their own names, and under the dis*
tinct seals of their offices, the statutes thaf
made some alteration in the matter beiQ|r all
repealed : see Dr. Ueyli&^s lutroihiction, afore-
said, ibid. fbl. S41.
The legislatire power in matters ecclesiasti-
cal continues in the ooovocattOD for raakiog
canons and constitutions confirmed by the king
and parliamtat ; discipline and the admonition
still resides in the bishops and those tinder
ibem.
In case of any irregularity in the mctropoli*
tan, report mutt doubtle.is lie to the head ot tbo
church upon earth, (the kiug)ai it was in tho
e4ise of archbishop Abbot, who shooting at a
deer uuroriuoately killed the keeper; and hts
jurisdiction (he b^iiig ituxpeniled) was supplied
by commission, as yoti mny read in Dr. lleylin
of the life of archbishop Laud, in the b7lh foL
of the book itself, but moie fully, fol. 170.
The bishop of London h next in place and
dignity to the metropolitaun, sec liis pririleges,
ibid. 185.
See Dr. Heylin' ' - t in it ic work of
retbrniiog the chnt in doi'ttini] or
exercise of the di«(i:i|..MM t t^ 'i -t-
tcrnow in hund, but in p c
no very ditlicult tbiugtod -,, .. _*.„ ,^ »^ ^. .i*
taken, foL 397.
I
I
I
I
115&]
fJTAMfiSIL, Pw^Migi tqpAid JD^Hmi^ (Stmjfbm^
« oomminifNi, m tbejr and evtay of tbeni'iaDder
* •urplettare, and will Mwwcr the onrtnyry at
' Ihdr fHinott perib. la witnew, Sec*
THB KING'S LETTER.
Bated Monday, ivmt tlw 14tti.-— ]Mifn«d
at FaHnm on Thanday, htkug tho irih
of file Mme Jane, in
Bar. Atterimry
** James JL
^ RjflHbt Reverand gutter in Gdd, wo gwwt
yon wdt. Whereat, wo bate been inftnuod,
andarefUIy satkfied, tbalDr. John Sharp,
recter of die Pukih Chnrdi of 8t Oikf in the
Viddi, in the coimMr of Bfiddleoer. and in
jonr dboMO, ndtwiflMandioff onr hie letter
bffaoflMMti^eferend FMhennOodthearoh-
Mdiopa of Cantitbaiy and York,^ and our di-
reonooa OQooeronMP oreaosQai siven as ow
oomrt at Whitehall, Ike 15th of fta;d^ M85,
In the aaoondyearif our reign; yefche,iiie
atid Dr. John Iharp, hi ootileaipt of the «id
orders, hath In aome of theeermons ho hath
innee-preafloed, piesumed to nudce tuniooomng
.NteefioniL and <o Utter enoh wtpreaiioos an
Were doI nt oir proper Ihr hfioi \ endesvoifring
Wieidhy to bcMi in tiio nfaida of Iris hearers an
Mi6pinioB€r«saiidoor mfero|iient» fajrm*
ainaawig liBarsand jealooSes todispesuBiom
e<K^ and rebslton. nese are therelbre to
reqnj^e aMooitnsaDd yon ionnediately
reoeipt Uaicof fbrlhwith to aoipsnd
firom ftatthsr prsadunip hi any uhMi ol
erchapel in yonr dlb(wsa» tmailie ina^
im satislhciion, 'and onr Airther pleasore he
known herem : And ibr so iloing, tlris shall
he your warrant: And so we bid yon heartfly
fkiewel.
'* Given at onr conrt at Windsor, the 14tli
day of June, 1686, in the second year of oar
reign. By bis Mqcsty's Command,
*' SONOBBLAim."
The BrSFIOP of LONDON'S ANSWER,
Sent by Dr. Sharp to the earl of Stmderland*
then at Hampton Court, upon Friday
June 18, whooottld hare no answer.
T6 the Right Honourable the Earl of Sunder-
land, Lord President, '<&€.
" My Lord,
** I always have, and -shall count it my doty
See the power of the metropolitan, and of the
appeal irom him to a provincial synod, and a
stop put there, and a ne ultra^ and that there is
no vicar upon earth appointed to bo the
supreme judge in ecclesiastical matters in the
opinion of the Council of Nice, discoursed of by
Pr. Stillingfleet in his antiquities of the British
Churches, fc^. 100. but still it must be under-
stood, that this fixed power in the ecclesiastical
judges and courts in England, is derived from
the crown ; but pow nndor the crown settled m
this method not to be interrupted; this .is
«* quoad polestetem jorisdiotionis noo ordinis."
[liM
to obey the kte 4n whateter
laysiqion me, that I can perfthn
ooniciencto: BtAkthla, I faoMj etma^tnl
am dbligcd to proceed aboerdfaigto law^ lirf
therefiire it is impoerible flbrnie to eonply;
becanse though iris niiyesty oohnnands wk
onlytoezecntohisnleasiire, yet, in the espa*
eifylamtodo it, I mattMlaaajdd||e; snd
yoor lonMiip knows no jotee condenms any
before 'he has knOwMge of the i
and has cited the party. However I east ti
Mr. ,Dean« and aoqosifliftd him wHfa his ma*
>0^*s displeasore, when I ftnd so rsady m
fire aO reasonable safMlhotieB, that I bait
tlionght fitto make hun the bearcref this si*
iwer,.1roin hhnthat wffl never he oofrilhr-' '-
the king, nor otherwise than, My^'lMd,
lordships most homblei
On 8widvf after. Dr. Sharp
to Windsor, which waa- njoi
read: WhidihiaaihUowix
To VHK KB«a*s 1
The httmhie Pferifeioiiof John I
V
LOMDOII.*
toW
pieaaedtog^enotioaof it,j
pvBdic eierosK of Insf
aHMa en to do.
^ Yoor petiliotidr can with* _
afirm, tliat ever since he hadi ben SI [
he hathihitMidly endeavdnred to do
service he could in his pfatoe
well to the late kng, yoor royal brotiier,Stf
yonr miyesty, bodi by pleaching and ellMi^
wise.
<« Andsoftrhehatfialwi^heenfiomvMl-
mg any thmg in the pnlpit tending to seUmi
or faction, or any way to the distorbanee of
your majesty"^ government, that he hath npsv
all occasions in his sermons, to the uUnost if
his power, set himself against all sorto of dee*
trines and principles that look that way : An!
this he is so well assured of, that he cannol M
apprehend that his sermons have Iwen vsiy
much misrepresented to your mejesty.
*< But ifin any sermon of his, any words or
eiepressioDS have unwarily slipt from him, thslf
have been capable of such constractiono, aali
'ive your majesty cause of offence, as hese*
mnly professes he had no ill intention in thsas
words or expressions, so he ii very son^ Wt
them, and resolves for the fnture to he so cato*
fill in the discharge of his duty, that yoor ma^
jesty shall have reason to beheve hun to la
your most faithful subject.
** And therefore he earnestly prayethy Ihrf
Sharp was at'this time dean ef lilN
succeeded TUIelson as dean ef Otoft*
♦ Dr,
wich, he succeeded
terburyyand in 1091 waa
Yoik.
1157] for nnt Suspending Dr. John Sharp* A. D. 1686. [115S
ivlitcli the rest of the cleri^y enjoy imJer your
iuajetty'8 ipneious goverameut*
your majesty, out of your roynl (jrnce ami c\e-
moncv, woujil be [ilejjie<l to l&y a^iile the iJU-
pleasure vou Lmi^ecyitceivtid aj^iDst your liuui-
me petitiontfr, and restore him to tW favour
^ So shall your petitbuer e? er prajf &o,"
1^ . In the Council Chamber at Whitehall, &c.
^P Mercurii, 4 dU Augusti, 16S0.
I Fretent in Council, Lord Chancellor, Lord Bishop of Durhani [Crew,] Lord Trea-
»urer [Earl of Rochester,] Lord Bishop of Rochester, [Sprat; see vol. 9, p. 3622
Lord President [Earl of Sunderland] , Lord Chief Justice Herbert.
•t « ^ 1 n- u 1 - Lr Jitvofit: but vour lordgluivs kiiou it if a ibinflf
Vpow my Lord Bishoo^s apficEit-ias: before i ,/ ,» "\ »•,- _^ * *- i * •
^, ^ ^y , "^ *^^ * ^* I I ultii;fctliep new to this jrenenituHi, and, It iuay
theni, accoh («if ti> a Hiimmons sent unto lion. I * " .. - ^ u i* i ■ •• „ i k "i
-1 T J *^i * II t *T I ' bt», somethuisf nmv be tound m it* whereby I <
theLord Chancel or Jefftrevs beiiaa^riz, ' , .^ ^ f j «■ * j • * "^ -^
*- ' * may be iiistmicteu and directed id my an^iwer ^
Lord Chancellor, My lord bishop of I^u- \ ami bthaviourin the inallLi*, But, my lord, if]
don, the lords here prese^it have received or< j I may not have a copy of it, willyour lurdsbijif ,
flers from the king to inspect al ecclesiastical * please I luay either read, or hear it read ?
nfikirB and persons ; and he halh cornimande<l i Lotd Ckauc. That is a thing 1 cannot giaift
vt to cite yuu before us; and 1 desire you J uf myself,! must ask uiy lords comiui!>*iioucra' '
vrould give a poiitive and direct aituwer to it : ^ judgment ; and d you will be pleased to with-
What was the reason you did not suspend Ui
Sharp, when ihe king coinniModed^ and eent
you express orders so to do, and lidd you what
It wa«4 ibr, viz. for prt^acbing seditiously and
a^iufit llu? government P
Lard Bhfinp. 1 hate recelveil such an or-
der; and il what was done iti that affair wai
done aiuii^^, and contrary to my duty, it was
my iifnorance and inadvertency, atid not a wil-
ful fault : I hate liecu alwaysVeady to express
my duty to \m majesty ; and if in this particn-
lar I have not complied, it was because, as I
was told, I could not. ] was not so sballi»w as
io go on my own head, hut took the best ad-
vice I coidd get : I consulted those whose bu«
fiioess it h m<*re perfectly to understand these
proceed inoftj ; all lold tne I could not legally
do it, hut by way of citation and hearing him.
Lard Cftonc. * Jgnoraniia juris oon excu^at ;'
you ought to have known the la^ , and it was
m wander you did not : the king is to be dieyed,
and it' you have any reason to ahew in this par-
ikulaj, we are ready to hear you.
Lord Bishop. J kfiew not what would he
laid to my charge, and tht^refore was not pro-
Tided to make such a delenoe as I might have
done \ but it' your lordships will give me a copy
fkfyour comtmasioD, and a copy ot iDy charge,
and aUuvv me some time, 1 will endeavour to
give your lordships satisfaction.
Lord Vftane, My lord, I would not misin-
lerpret your words, but bhall desire yitu to e^f-
plain their meaning. If by de-siring a cupy of
OUT commission, you ile&ign to i|uarrel wttti the
juri$<)icUon and legality of the court, I have
another answer for you ^ but till 1 know your
lueaning here, my answer is, that no copy of
the com million can be granted, and it is uo*
reasonable to desire it \ it is upon record \ aU
draw, you shall hear it.
The Bishop and all the company withdrevr
for a Quarter of an hour ; tlien returning, th« j
Lord Chancellor said :
My lord, all the commissiosers are of opi-
mon, that yonr request is not to he granted,
and that tt is unreasonable* Might every una
iitai appears here challenge tlie sight of our
commissioQ, and the reading of it, all our tiiM
wdl beepent in the reading, and we have some«
thing else to do. The proceeding of courts im ]
this Kind are never by libel and articles ; * 8a- J
' pientem succintim ore teous,* by word of 1
mouth only ; and ii is a short question 1 ask^ <
Why you did not obey the king i"
Lord BUftQp. It is a short question, but i
quires more words tn answer it. I pray yon
lordships to consider 1 am a peer, a bishop, and
have a public trust, though unwurthy, under m .
puLhc character ; and 1 would behave myself J
as becomes one in these capacities.
Lord Chitnc. We know very well yotir lord-
shfp^s quatity and character, and areVilling to
shew ah due respect to your lordship ; but yet ■
we must have a ilue regard for the king anil '
government too : his miyesty must not be neg-
lected.
Lord Bishop, My lord^ I suppose there if
no appeal from the court ; and %vheii a man it
to he c'ondenmed at one bar, and is in da tiger
of being knocked d^nvn at one blow, you would
think it unreaijooaliie he should not have souie
lime to make his ilefcocc.
Lord Chanc, My lord, I suppose their lord-
ships will be ^villiog to grant some lime: I
pray what time does your lurdsbip de«ire?
Lord Bishop. My 'bird, it is the assise -liiue, i
and most of the counsel, upon sonie occasioQi
the coffee-houses have it for a nenny a* piece, or other (either hiisiut'^ or tliverHion) are ui tlia
mud I doubt not hut your lord&hip has seen it
Liord BUfwp. 1 have never seen it, nor have
I defir<^ it for such ends, to dispute the lega-
ceuntry " I pray you, my lord, 1 tuay have tJl|'|
the lic'ginnuig ot the tertn^
Lord Chanc, Hah I That is unre
1159J f JAMES n. Proeeedingit^ahsi Dr. Henry Oilfitm.
hiM majerty^f bmiiien ctnoot admit of aaeh
dekys ; methinki a week aboald be enmig^)
what say your lordshipap la nol a week
ettoughf ■
The CommisMoncTB beioff aaked, mgiated
by the Chaocelk>r that a wedt waa enoagh.
Lord BifAoD.' 8ince your lonbhip will grant
DO more, I will ask no more.
LordChane. Acyoum until Monday' neirt,
the 9tb of August, 1686.
Upon the 9th day his lordship came, attend^
ed with his nephew, the earl of Northamptoi^
his brother in Ian , sic John NicholaSi mna hb
brother, nr Francis Compton, See,
There being present in council, the sanoe as
before in ttte same proceedings.
Lord Chanc, My lord, we are here to hear
your reasons.
Lord Bishop. My knrdi I haye lott no time
ibr preparing my anawer, bat am not so ready
as 1 might GiTe been, bewne I oould not light
of the commisBion your lordship told me was
opon record, and in every ooilea-bouae, but
employed a whoUN week to search for it, and
oould not have a sight of it ,untij last niglit : if
your lordship doubte the truth of this, I have
the person ready to make oatli here of it.
Lord Chane. My lord, you are a person < t^
honour, and we will not question the troth •!
whatTOu say, thefe needs no oath: but, my
lord, 1 must tdl you, that we will not admit of
•ny qaanndling with our commission, we are
weU assured of the legality of it, otherwise we
would not be such foob as to sit here.
Lord Bishop, My lord, I have other reasons
why I desire a sight of your commission ; it
may be, it may not reach me, being a peer
and a bishop ; and it may be, it may not reach
this particular case ; and therefore I desire a
sigbi of it, in n-gard I could not see it until the
lost nig^ht. 1 have not had tiuie to take advtce
uhat to answer ; if your lurdship will not be
satistjed, I iQust ^ive such au answer as I hare
|)rc|mred ; but it is my desire to have longer
time for it.
Lord Chanc, Is this all you have to say ?
Lord Bishop, This is the first thing : I do
not desire to prolonc^ the time, the necessity
' of the case requiring it, the counsel being out ot
town in whom I think to confide.
Lord Chanc, If your lordship will withdraw,
we will give you an answer. [He withdrew
for a quaiter of an hour.l
Lord Chanc. My lorcl, as I formeriy toll
you, we will not endure any quarreling at our
com mission ; it will be an odd thing in us to
give you time to pick holes in it; but we arc
willing to pay all due respects to yourlonl^
ship : what time do you require ?
. Lord Bishop, I shall submit to your lord*
ships ; but 1 hope a fortnight will not be un*
reasonable.
Lord Chanc Agreed t Yon shall have it
IBtil to morrow fiiciiigfat io the nomiiy.
[1169
TowbichmyLnndCaMiioeflaraMid, <
Lord Chime. My locd^wlieiLl uMfpam
commission was to be areb'fai eveiy eofta-
house, I did not apeak with-any des^^ ts 9.
fleet on year lordship, as if you were a ham^M
of coffee-houses. I abhorre) the tboadhlstf
it, and mtencled no more by it, but tliatit w
common in the town.
*^.
[Note,
When tbe biiiiop apake <
Thomas Chrget spafi
with a loud voice, saying « Well pot, weDjil;
* my knrd speaks nodiing but truth.' TW
was abo another gendeman, nr John Laivffcv
of Lmotdnahire, who as he waa eomngaiiv
in the crowd, said, < There are iomewSalS
* represented me as a Papist, but the ceuliMi
<ahal1 appear; I will not be albid, Mr
* ashamed, to vindicate my kHbMhoi^CHM
' before the commiasiOiurs thiiiiniiiiaa/]
Tuesday, Aogost 93, 1685.
There being present in oomdl dM mmn
b the fimner prooeediBga : The loid b«hii
attendmg, the prooeedinffi wei«f as IqBowT^
Lord Chaw, My lord, we are now nalTii
hear your lordship's anpnver. ■■
Lord Bishop, My loid, nnliiillielaniliiB i|
lime hath been veiy abort, euaMmSih$
wdghtiness of the matter, and the iribantetf
many of the learned counsel, I ha^ tahn wli
tdvkse I.oouM, and have eonaaHed tbasett
•re very learned in the hLwa. Ihepetheiewl
be no roisinterpreutkw of mTwonb, I da art
intend any thing which n derogatory le III
king's supremacy, that is undutifiil te bb Wh
jesty, or disrespectful to your iortlshipe. IH
counsel tells me, thst your prooeedinffB in M
court are directly contrarv to the statute bv,
and are here to plead it, if xyonr hmbhips wl
admit them. '
Lord Chanc, We will neither hear jm
lordship nor your counsel in the matter ;«•
are sufficiently satisfied of the legality ef s«
commission, as wp oiVen told yon.
Lord Bishop, My lord, I am a bbhep of As
church of England, and by all the law ia tbi
Christian church in all' ages, and by the fir-
ticubr law of this Isnd, I am, in caseof olibwe,
t» be tried by my metropolitan and suflia|gaBi!
I hope your lordship will not doiy the rifll
and privilege of Clinstian bbbops.
TA)rd Chanc, My lord, you 'know ear wt-
ceetlings are according to what has been dial
forrnerly, and that we have an original jaib-
diction : this is still qnestionuig our cqart.
Lord Bishop. It is partly.
Lord Chanc, Nay, it is aheolntely ao.
Lord Bishop, My lord, I hope vou wifl il-
(erpret every thincr in your commiasioa ia lb*
vour of the person that b brought befersyoat
I humbly conceive that veur eomaMMsa M
not extend to thecrimaa lakl to my efaevgf,ftr
you are to cenaure faolla wbi^ ahal la aw
initted : thuthati am aoeoaad af. W likif
thedataefyofreooHiHBMiu .•••w..*>*«
IGl] fir not Suspending Dr, John
Ijyrd Chanc. 1 confess thrre it siicti a clause,
'} ■ <' '- are i^enertil cluiitieir, that take in
I >t are pa^t, as well as llH»^e that ore to
ix>|He, itoth j^our tur(l><tii[i nnv tluti^ mure f
Wn Tit^hX to llie hyua ofttie rculm asa subj^^^t,
itiil the Myhtii uiifl privitfikfe* of ttie church n% a
|>btiop. i fchall, ^vith >our Jordsbips' le»ve,giie
jrmi my Answer.
kTbicli ^'ns aecepte^t ; and the bishop wtth-
k and Iff* Dr Sharp*s PeiitioD, which
F%iri|L; hud refused to accept.
Lord CVmj/ic. My lord, we have read the
d BUhop, My lord, it is Dr. Sharp's pe-
io the kiog'.
\ Lord Chanc, My lord^be pleased to take it
B^ato, we ure not concerned in it; will you
vase thnt your lordship^s Answer be read '^
Lord Biihop, Yc««, it jour lordship i»lease.
Jrty lonL 1 have this to sny further, w hat 1 ilid
iii <l.i^ jtiriiter was Jurispentorvm Ci/nciHiK I
my counsel, who is ihejudjfe of my
;js wetl as others; and Ihe law sayi,
bat what is done by ihe arlvice of counsel,
liall not Iff internreled to be done mtJiciously,
tr obfttnoiely. The taw, in this caie, requires,
;t tf a prince require a Judge U) execute an
ler, which \% not a^eeable to the law, he
11 ' Rcscribere vl Il4?clamare Principi.*
*i my lord, I conceived 1 acted in this uc-
' igr to my 4luty, for I wrote kick to my lord
lent, in as becotniu^ wordti as 1 could ;
■quatnted him, that ati order to siinpend
diation and henriuif the person, is
law, and expected his majesty ^si furthir
re. Id the neictplace» my Jordfi, I did in
dtci w hat the kinfr commanded to lie dune ;
tor I ad* i»ed Dr* Sharp to tbrbear preaching
Ittll his majtJitv had receiTed satisfaction con*
c f 1 tiint; lum ; and accordingly he halh forburn
■icesie,
i. Uan, My lordy will y<»u have your
|mpt:r I tail i:*
Lt*fd Bhhop. Yes, if your lordahip please,
bich coutained the King*! Letter, and the
^p'u Answer iliereto.
f*d Chftnc, Halh your lordahip any more
aay?
Lord Bishop. My lord, I desire your lord-
ship woutd hear my conniud, by whom yuu
' have mor»' clear siiid fidl ftatisfacUou con-
ttllX^ Whui I havi* vjitd,
^hrrrupon the liishop was desired to with-
^ilraw, Hod atter half ati hour, he and hiit coun-
mr\ w*'t r calif d in ; who neitj Urs, Oidish,
(Mi'c, and \cwtOR* A brief accotmt
I l>«*y pU'uded.
Dr. Otdnh, IMy lord, the question before
^'-ft^irlord^liiji i«!^ %^hether the hi'^hopof Ltindtm
1 t nt to thf kiu$;*H irofnmnnd ?
It uiiiMt be ci»n«rdcfcd?
»> i4 ' ' (jc done?
Shorpm
A. D. 1686.
[I16«
simdly, y
lly, Vt iiMt juii
t gireii by lam f
nee toil?
i{;^hi ta have
It is a]tpafeiit by tlie letter, that the king did
not take cognizance of the cause, for the words
arc, * being inhirmed thut Dr. .Sharp, ^cJ 8t>
that it coidd not be an absiolute suvprnikion ;
tor that supposeth a proof of the crime charged
upon him : then let us consider the wordt
themselTcs :
That you tuspend him from preachtn^.
Now, my lords, we have no such thmg in our
laws ; so that the nienning must be silencing
of him. VVhereHieve is an absolute su*>pen-
sioD, there out^ht to be citation, form of pro*
ceeding, judt;fment and decree j to act otiier-
wise is contrary to the law of God, of imf ure»
of all nations in all nges^ and was never kuowu
in the world.
Lord ChQTic. I am loth to interrupt you ;
bill I roust tell you, this is an unnecessary
harangue ; we know that it was not an abso-
lute suspension : but the question is, whether
the bishop could suspend him from preaching f
Ur, Oldish. Then, my lords, I have gained
another point; if jt Avere only silencioL' him,
the question is, whether the bisliop did not
execute the king^s commands ? 1 think he did,
and in such a method as is observed iu our
courts.
When any eminent person is accused, the
judges send* to him by a letter ; and if he ap-
pears and complies with the judges order, the
law is satistied.
*■ Judicium redditur in invituin nou in vo-
lentem :* Tho bi<ihop did send for Dr. 8harp,
shewed him the king^s letter, adviseth him not
to preach till the kiog had received satisfaction ;
in which he promised to observe his lordti hip's
comiuand, and hath not preached to this day ;
so that his majesty -s comnQand was, in effect,
fultilM, My lordj there is tlic like proceed-
ings in the common law ; for if an attorney
taktfs a man^s word for hi^ api»earance, thert
lies no action against the attorney.
Lord Chanc, ' Cuj us contra iium :' There
lies an action of ef!ca[>e against the attorney* *
Dr. Hodges. My lord a, the matter of fact
hath been stated, and the question is, wii|!tber
the hitihon hath been diisohedient to the king*a
commamlf It npjKiars that he h«8 not; he-
cause, upon the receipt of hia majestv'ii letter,
he required the doctor not to nrcacfi, and he
hath uheyed htm in that wnich the king
commanded. To ^u^ncud him the bishop
could not do, the act ot stispen&iun is a juilicial
act : the king vvrilcs to him as to a hkhop, to
suspend as a bisliop and as ajud;;c\ which
could not he done VI ithout the hearing of the
caui»t\ If the prince HOiids lo a pci'^tn that is
not A judge, that i» only in a ministerial office,
that officer is to execute his commatHl;* ; but
vt hen the king commamtK a judge, he coiu*
iimnds him to act a<i a judge. This is no light
matti-r the doctor i** accused of; it is for
piv;tehin£( sedition and rebellion, which re-
ij* V, And If ihehibhop, a»
H I 1 him, he had begun at
tbi vMun;^ iiiijj iiir itit* bad h(*rn judijmcnt biv-
fore procct^i: in tbiy cauio ibcre ou^ht to hifie
116S]
tJAllESIl.
beeD a cHatioB, ov booln gifiD|^
iUmoei, wbtoh would be to5-lMMiit to
lofdrfilpt I wiUgjfietliiioot: the ^
peror'a nooeediiigi agaiint Iba Im of 8£alv
tipon iotomiftiiaii which he bad niea?ed ; aim
King him no citatioii. the jkuig meeled to
ijpope, who declared the firboeadSn^i to he
Toid ; and that it waa against ^ kw of na-
tore, which is aboTO all positi? e lawai to
•entenoe before citation. Tliiaia the
of proceedmg before all eoarlSi and I hwnblv
boncdve it isy and will be, the mMliod of this
oonrt; for otherwise, the bishop need, not to
have been cited before you. The bishop hsa
done what |raa his da^, he was bonnd to re^
iimi his rcaasn to the king, why he did not do
that whioh Jie commanded^ and to expect his
Ibrther answer; which was done. I affirm^
that if a prince, or a pope, oonunand a thing
which is not lawfol, it is the do^ of a jnd|[e
retertiere; whieh is all he can do, quoting his
Dr. Prke, The qoestion is ut nipre : A
citation is^r^gcnftwa, and Can never be tsken
away by any' positife cbmmand or law what-
.eoeter: the bisbop hath obeyed the king so
dr as he coa'd, and did rescrioe, ezpectii^i^ his
DM^jesty's further pleasure. If toe bShop
could have suspended him, it must have been
done im akid ; but in regard it was Only silenc-
ing him, which was required; it might be done
In a prirato room : the advice of a Kshop 19 in
some sense an admunition, which is a jndkial
ict, and this was given by a bishop, and obeyed
bytbedocUH*.
Dr. Nrwton, My lord, the questkm is ui
MuprOf the bishop bath not beeu disobedient.
As in nature no mtfn can be desired to do that
wbich is impossible, so no man can be obliged
to do an unlawful act. (* Id non fit quod non
legitime fit.') Tbis rule obliges all men, at all
f laces, and at all tiroes. The charge against
)r. Sharp is of a very high nature ; and he
desired to oe heard befure he was condemned.
My Lords, the bishops are Custoda Cawh
funn, and therefore must not break them them-
aelvdb. I affirm, the bisbop was so far from
being disobedient, tliat he was obedieut to the
king ; For where be did rescribtre^ and heard
tfot the furtlier pleasure ol the king returned,
he ought to conclude, the king was satisfied
with what he had written, according to his
duty, and the king had altered his commands.
A citation, as vour lordships ha?e beard, is
according to all laws, in all places, in all judi-
cial acts ; there is something to be done ac-
cording to law, and somewhat according to
the discretion of the jud<j^es, and for that rea-
son, as well as these, the offenders ou|f ht to
be cited before him; that wbich was in the
bishop's power to do, he hath done, and it
was m effect what the king commanded to be
done.
Lord BUkop. If through mistake I have
erred in any circumstance, I am ready to beg
bis majesty^ pardon, and shall he ready to
make any reparation li$m WJpiWn
cgniMt Ik* UmM Q^^ [1161
TtebvbMwhhdKir i» balT •» lMri#
waa then oilUbu
JU CtoiZWa will hn tan agMw Wei-
aeeday Mil( nd( I iMm jMsr iMMii tolp
bsTB agjBi abawt toa bi thn jirwasu,
jjJA.Bmkap. My Larti, I ilwiratMi
naybatakwanoManibig flwfMnntos» «lil|
ara tak«i by the «Mb^ «f wlHit b«lb pMii
and that I may natba win epinwtfhil toil
king by the mistoka of dw nenmaii.
DM4CAnn. My bud, yw need not flbir it;
I hope yon bave a bettv opfanoanf oa ; 4h|»
sbau be no advantage tahpi by tfanm or ».
KsbopB^cA. Tbamsbaii boMttf
taken, butall imaginaWe oara tabem
ittgit
Notiu When the cQonadbM were |
Dr. Pbftld, the king^ ndvooaft^ atoadi
the chancdkir^ dhow, «nd took nalNi
, by wbfcbit wasczpeated tfaatbaAarif
make a reply, hot be aaid Mifafag r ial
it is supposed that be staki with the et*>
when the bidiop wiMrew, \
for bill"
- Dte Xwus, (^September, 1080.
There beiitt frasent uooynciitiiasMMii
in the former IVaosedinga.
Lord Ctoie; My bird, pimT sit down, tti
were desired td appear this dnr tobearvitf
aentence, which (to prefCDtmistafcn) wahsie
ordered to be pot in writmg.
Lord Biiftop. My kwd, maj I bnT» bvieti
speak before sentence is read r
L. Chunc. My lord, we have beaid joami
your counsel already.
llien the folk>wiog Instmment, wbeieby Ibt
bishop oI'Lonooo was suspended, was^ If
the Commissioners order, read by Ife
Bridgman, their lordshipa' register.
* By his Mfyesty's CommissKHien for Beds'
< sisstical Affairs.'
* Whereas Henry, lord bisbop of UindsB»
bath been convened before as for his diadbs-
dience, and other his contempto iniinliaasd
in the proceedmgs of this canse ; and Iba
said bishop being fully heard thereupon, W«
have thought fit, upon mature considtiaMsn
of the matter, to proceed to thia our definilisn
sentence, declaring, decreeii^, and Mv
nouncing, that the said Henry, ford biMf
of London, shall for bis said disobedienoeaai
contempt, be auspended during his miipfllyll
pleaaure ; and accordingly we do,^ by thsm
presents, suspend him the said tord bahsf
of London, peremptorily admonishing and r»
<|uiring him hereby, to abstain fromi
tion and e^^ecudon of hb episoopal r'
from all episcopal and other
jurisdiction, during the said i
Miia of deprivation and le
lishopric.
lomofid Um lii
paw ^ deprivation
lishopric.
' Given nnder enr band and oaal 4m «h dtf
«of September, IdfiOt %Miri*#«pi
1167]
S JAMES II.
Trial of Sir Edward Hdes,
[1168
begun, lie was, and still is an inhabitant and re-
sident of the parish ofHackiniprtan.
from the Protestant reh'gion to Popery ; and
that not only by the canons of our Church, but
by our acts of parliatnenf^ (vid. act 47. 1572,)
Apostates atWr admonition by their pastor are to
be excommunicated. Tlie bishop signed a
warrant to proceed in their processor excom-
Miunication ; tlrough it is hke it will sleep.
This lays also a platform against Doctor Sib-
bald, and Hugh Bniwn, who had also revolted.
But to qualify this zeal« the bisho|> in his
speech ordertMithero in their sermons to forbear
all personal reflections, but only to handle the
Popish controTersies in general ; and if they
pleaded to turn their afternoon's sermon to a
catechetick discourse, as was the custom of the
Protestant Church of France, now sadly per-
secuted ; that our fears needed not be so pa-
nical for Popery, because, ] mo, We had the
promises and providi*nce of Cod to rely on.
Sdo, The king's promise and assurance to pro-
tect our religion, (though some cannot find
ivhere the Idof has promised it) Siio, We have
strong laws m favours of our reformed re-
ligion."
*< October 28. A letter came signed by se-
cretary Murray, to the bishop of Edinburgh,
signifying that the king was m formed that se-
ditious s|»eeches were uttered in the pulpits of
Edinburgh, tendifig io stir up the people to a
dislike of the king, or the Popish religion, and
ordaining him to advert thereto on his peril.
He conveened his ministers, and intimattnl this
to them, that it had arisen on the public re-
flecting on doctor Sibhald, and the ladies of
liirrol and Meldrum had threatened him, >kc."
»* Nov. l'>. At Privy Council, the king's letter
was read, dispensing with the test to some
l^apists,who had been named in the new act of
parliament 1685, anent tlie supply and excise,
to bo commissioners in their rc.si>ective shires,
for uplifting and ingathering of that subsidy.
The letter bore, that the said act, !»y a mistake
had iujoined the said commissioners to take the
oaths of supremacy and the test ; whereas by
the act of the test itself, and the additional act
iu 1681, they were de industria omitted and
left out, seeing the king's service must not be
stopped by that ; and therefore he names about
C6 Papists who were commissioners of supply,
and exeems and relaxes them from the test,
dispensing therewith, and impowcring them
to act without taking it ; which seemed a
dounriglit derogation to the act of parliament
1683, and not in the king's jwwer ; for it was
said, whatever that dispensation might oiM^r.rtc
to secure them for all proceedings, yet if thty
actul after it, they incurred and contracted a
new guilt. It had also another clause, but
prtjudice to his majesty to dispense with any
others he please<l ; but ordained the oaths to l>e
imposi'd on all others ; which is conform to the
13lh act 1686, ordaining all Protestant heritors
to take the test. The true case was the duke
«f Cliieeii«berry , when cowmiwioiHT> had it par-
And the plaintiff taking it by protestatkn,
that the defendant within three months next
ticularly in his instructions, to suffer nothiag
to pass to the prejudice of the Roman Catho-
lics more than was already ; yet lord Kintore
treasurer depute, and the ule^ register, slipt
that clause into the act of the supply, which,
being challenged by the king, the chancellor
and treasurer pai^d themselves of it ujioa
oath, 80 it lauded at Tarbet's dnnr^ whidi
made the duke of Gordon do him all ihe lud
offices he could lor some time. This Uitn
alarmed some people, as an essay that the
king intended, by little and little, to putPa|iiiti
in tJic government, and which they thought
seemed clear from liLs s|»ecch to the EngJsh
parliament on the IHh of November 1685, wbea
they sat down."
" Jan. 5, 1686. There is a letter from thskiaf,
ordaining all the Protestant heritors to be pur-
sued and fiued before the privy council, who bad
not taken the test within the days prefixed by
the ISth act of |)arl. 1685. This may serve lo
humble and weaken that party who arc kwked
on as secret enemies to his majesty's succeisioQ
to the crown ; but by the principles of our lojal
religion his majesty had undoubted right.*'
** Jan. 8. At Exchequer, the high treasurer
produced a lv«t of the |)enstons bis majesty hi^
granted, extending to 52 persons, whereof
there is above 19,000/. sterling payable to Pt-
pists ; as to lady Mary Gordon, now oonDtM
of Perth, ladiL-s £rrol, and Largo, lady Mar^
garet Ha^ , lord Traquair, colonel Wlfitefoonl,
Doctor Sd>bald, &c. and some in the former
list were kept out here. Some qpnidged that
their taxes [)aid to the king, and particularly
the additional three mouths cess, should »
thus distributed and exhausted among Papists."
*' Jan. 11. The collectors of the king's «»-
toms, and their scarcher;s having apprehended
in a ship from Ijuudon, some Popish crod-
fixes, beads, priests vestments, and the fur*
uiture and ornaments of an altar, tl^y were ia
some doubt if they should let them pass, sceiog
the acts of parliament ordain all such baggsfj^e
to be seized on ; yet the 25th act 1587 ool^
mentions Popish and erroneous books ; but nr
George Maclcenxie, in his observations on that
act, acknowledges it has been also used as a
warrant to apprehend and confiscate such
trash ; but being for the chancellor, tbcj
would not meddle with them."
** Jan. 12. At privy council, there was t
letter from the king fead, wherein he impowers
his privy council to give abatement of the fines
they had iu)[>osed upon persons for church
irregularities and delinqucnces, if they aaw
cause, and that the parties merited it ; pro-
viding the abatement did not exceed the half of
their fine, if they paid presently, and s 3d part
in other cases.
" The privy council sent up a letter to
the king, m answer to his of the 6th Jsouarji
signifying tliat there were n.any who had not
mum th9 tsst out of contumscyi but firov
9
1 169] Jvr negferthg in tale the Oaths.
ifler Hw <idmbston into i1iesn«4 Atfiec of ctilonel,
did not receive tlie sacr«meut in munner as the
act lUrects, but netrlected ta rtTt-lve it ;
fj^omnre of ihc rlief. (ircti\L"<lt llieacts of piir-
finm * ''"H>, Jiavin^ b^'^u loinj of printing*
■o<i tablic ; and tlu*refiirc tltrsirmg^ lif
Itouiw ...o,. a farther diet and prorosnilioti tor
Uklfii^ it.— Ami, on the 'J8rU of January,
R*i' f ;»riu' Nruttiirr letter from the kini^, m
^ : eby , instcatl Cif prorcigiviintf
c1 J tht test, (iifi IS cnjaiuett to
lestniit heritor?* by the l3th uct «f imrltrt-
meiit 1685^) he iftspen*efl witli the tttkiii;^' it
durint^ Win plev^urr. — ^There ^vIl^ also a letter
• part J dispcnsjopr with the eur\ of Forr;ir'«
tikins^ tlic said oxth of the test, uhicb wa^ iin-
n^cestary, he being inctudecl in the y^Qcral
eiemption.
** Jan. 9. The prlntrrs and stfttioncrs were
by the privy council\*f order, nt let!?t the
chancellor's, di*charj^f.*d eitlier to pritil or sell
Any liooks reflect iitg on Popery, And a C'»py
•f ihi9 wa« (jfiven to every liookseller* —
Wh^n it was intimated to James Glen b<-»ok-
•ellrr, he nnswered tl«» maccri of privy coun-
cil, til it hv htid one book in his fi!top which
c<iTi ' "'"pery very direetly, and lie de-
lin.i - if he raiL^ht bc)t it, mcaniujij^ the
bibte. The order ran m ^^eaeral terras, that
^bin*:; should be printed or sold without a li-
^|r frijm the chancellor, nr the ordinary, or
' Herks of privy council ; but it was
as that this was meant ag-HiUfit
»ka of coDtroversy^ because they
tfie minds of the people a^inst the
ijgfion/*
!li?6. A letter conies do»rn to the royal
lKirOu;;h?t from secretary Mellort, si;,^nify)ng
I, ,i <i... m,ij^ desired to know what nhippinflf
I to each c»f them, in reg^ard he i-e-
^^, ljv his prerog^atire to g^ive them a free
wkli KtiT^land^ which many tho'tt^-ht
not Iw done u iihout au act of parliament
: But thi.«» was trysted now to amuse and
the boroughs into a compliance with the
iatt*« desi^ of tolerating Ponery. To
le tfod the duke of Queen sncrry gfot a
i^fT from the king', full of irracjouv ^xprcs-
■ioof, that he wnuld never forget the many
ierrices he had done him.
** April 13. The con Ten lion of the royal
•b*n»Ufrhf ( and the synod of Edinburgh met.
** There was a fiaper posted on the cob-
^eni' '^ *" - " >■- • - . -r t'-.' membem to Ijc-
wai - Edinburgh, and
eV X: . "'^* who were to
le^ ihctii i(t pcri iir\ !t\ ihetesit; so
tiiit ti- l*eem, itw'\ < ai 1 as had not
Iwncrlv bt'fn nintibr i.i^ tuki'tlj* t' %t : Av.A ilie
]ao^*i lelt»fr to ijjc royal boroujri^^, jririnniitd
«9ih >1jir<h l«sl, UHtrcad, to winch they re-
torDi*d nn aTt*<wcr rntreatinj^ his majesty to iio-
|iower hi louer io restore ih'eir pri-
^ik^e«, : the Ininfbs of barony and
ility, Auij ti» 5 Iieto « free trade
EJiJ^Iand : Air i;;lj the «oaitQ»*
A, D. 1(3SJ. [1170
Aferiy Ihot the defendant did neglect to tftke
the oatha of aupremacy and alletrijince, either
in the Chancery, or in iht Kings's- iK^tch, or mi I
sitmcT mentioiier) these purttcuhia in hit \
8pC4jch ; but the boroughs mij^bch^iin^ to th^ ,
court, none of ihcoe things wrre pcHbrmcd !(►
tht?m.
" A^ to the synod, [irnfessor Straclian had
the eoficitradcientfft^ who much prcM^cti roU-rj!-
tion to all who diflWed from us in j
insiuuuting^ a charitable accommodir t
the PapiHls, .and cited the two Iteynnlds. 7 ho
people xvA<^ so dis^^alisficd with hiui, that they
withdrew from his church tiierealler. The
bishop in his speech told ihem, that the kin^
would graciously d'jftrid our relijjiDu, and only (
craved the exercise of his own, It* these oi' his
own persuasron, in private, without hazaitl uf '
the laws ; which, he said, couM not l»e denied
him, because he might take it by his |>r<;fo-
pfalive of the churc-h supremacy, as settled Lf
the 1st act of parliament 16(}9 ; and that lfa«
archbishop of fcJu Andrews and he had jf»d an
ample commission to suspend and dc pt tv^, by
themselves iUone, any who picached scditioui
thoML'h <hey should be bi^^hups. And Mr.
i~ ^'11, minister at Preslonhau^h, har-
iif ltd rudely agr.inst Popery lu the ab«
hay church the Sunday before, was sharply re-
proved ; though he said, 1, That he had obey-
ed the bishop s old instructions, alluwiD^ them
to preach against Popery, sparing' persons. !j.
That a ridiculous religion mi^htoe treated in
ridicule ; for he had said, the pope was as tit-
tfc iufalSible as the bishop of the isles, who wasi
one of the sdliesft bishops in the world ; and
that he would believe the moon to be made of |
Ifreen cheese as soon as bclievo trausubston-
Liation. Then the bij»hop, by n ctrict nci^
prohibited them to employ ony iu their pol-
tnts of Edinburgh, or the 'stiburlw, without hi*
icense."
•* May 6. The draaght of the parliament*6 an*
swerto'the king's letter was read twice, and
by paragraphs ; And that part which roea*
lioned the pi"esent king's and his brother*« in-
nate clemency was am ended , atul extended
aUo to th^ir progenitoiu, eke it mijiht have
born a tacit ieth?ction and exclusion ot ihcnig
as if the whole race and stem h*«d not been so.
The greut dtrb^ti? arose upon tite iipjiellation of I
Komsui Catholics which the htter gave th« i
PapisU ; it was ui^ed, that U was not tit for &
Protestant parliament to give them thia title,
which thev assumed to themselves as iheir 1
due ; that "BcUarmine de Ecclesia proved Ihey 1
were the true church, because then very «fje«»
mies, and heretic**, crave them the deki^nalk
of Catholic, wtiich he make* the tirsi note i
the true church ; that Roman Catholic
tontrudiciiii in atfjecio, l>eing a particular iia»
versil ; that the common »rile they gave u
wa« herHic*<. 1 rt-presented, lh<»t there was no '
tfii«fi wirhtn the house more drsirou* to b^ve
tl r, marks of division btiriod, and th«(
V M, all united in the g^uerml oatuv ^
4 1
1171]
2 JAMES II.
Trial of Sir Edward Halet,
[im
any quarter-session^i in Kent, or in the place
ulicre he was resilient, either the next term
Christian ; it was true, the names under which
thc'\ wen* known in <i ir law, were the de8i(v>.
uatiui s ol' the Piipistiesil kirk, heresy, error,
sn|MTstilion, Popish iilolatry, and maintainers
of fhe «T lel dccrnos of ilic coiinoil of IVent ;
(Vi«l. d*'t ,5th lj(jr, and act 47lh IdZ'Z, Vc.)
a> d tiion^i) it was not sniiahle to the wisdom
and irravitv of the* parhaniejit to orivc them a
tiiK- ln»[)lyinir as if they were the true church,
and wf tnit a sect ; yH I wished sointf sott ap-
])< Million wuh the U'asi olfrnce iiiii4hl he fiillen
on ; and thereiore I proposed it init;;ht run,
**TIiose commonly railed Roman Catholics.''
And thnt tlir innsl part of nil onr divines call
us the Catholics ; and so Chameir he<rins his
* Pan^tratia, vertuntnr controversia: Catholicos
* inter vi Papistas ' The chancellor caih^I this a
n^^'k-namintfof tlie king-, and proposed it mi^ht
run in tr^neral terms thus ; As to tho.ce suhjet^ls
your inujesty has recommendid, ^c. The
arcId)ishop of GlaKnow's overture was, I'hat
we mii^ht call them Konian Catholics, not as
acknowl('d<;in{2^ them to he such, hut only as a
bare rrpititiou of the kinjf's words: 'So it
went to the vote, and by the plurality of ii7
votes, it carried that these words should stand
in the answer. But thoui^h it was ur(<^ed in
the case of Halp:reen's election, that tlic dec-
toi-s should be fined conform to the act of par-
liament, for elcctinc: w itliout takih^f the test ;
and that it should he markcti, that the callinff
them Koman C'atholics was only as iisiuir the
kin£r*s words, h}' way of compliment and civi-
lity to him ; y«t noneof ihir two were marked
in the hooks of P.irli.imv'Ut, tor any thiiiitf [ can
h(-;u'. It was also iM*-4C4l, that s.ime words oi'
the letter stemf<l to *^ive his majcsly lio|}es
and assnrancM^ of some coi.a-^sions and favonr,
Vi'hieh the jiarliament would shew to the Pa-
!>ists, \iz. as far as their roiiscionces would al-
ow, not douhtin^if, Sec. \V Inch naturally im-
pfM'ted some len^'th ; v\hereas sundry members
oi* |Niili:unent thought themselves ohliifed in
duly and iii^onnity, lo dcelnv, that they had
fuiiy exult. ined the case, and .oiind they could
po no lenuih at all. 'I'he parli.iuuntN answer
was so liitle s.itisfaetory at court, that lhou«i^|i
these an^wers used always to he juintcd hL'fore,
yet they would not suli'er this to le made
jiuMic."
'* As for the muin act desii^ned in this pailla-
meiit, anent the priiatc toleration of Popery,
there were many meolii.irs ahoul it. Duke
llauuiiouii proposed it miuht i>*i a <;*4:nend ia-
dul;r»'nee to presh} terians and all ; llii.'i allVioht-
ed tlie art Ii!»i .hop of St. Andrews. ^Sir liK.'orjie
Loekha-L iNi-sident niovel, that it should nv^t
beloiii» to any ev»nverts aftir the a<'t. U. That
if they pre<4(mied to assun;e t!ie piihiic exercise,
they shouUl ipso Jtuto forfeit the private. —
Yet some madman might l:e hounded out to
make them lose it. 3. That the Papists
should Ik? deharre<l from all PuhUctmployraents
aiid oifi€«8, uudttr tbe pauu ef trcasJoy and
afler his admiitsion to his said oiBoe, or withii
three months after.
that to be irrsmissable even by the kiDflf , ezoepk
with the consent of parliament. 4. That by s
declaration in writ all persons in public trort
should own, assert, and acknowledge tbe
justice and lawfulness of this tolermiion. Awk
it was moved by some, that if the toleratiM
passed, a declaration should be required, not
only of those in public trust, but of all persoDi^
approving the lawfulness thereof, thai none
mi^ht escape, but all be equally f^uilty.
" Many thins^s concurred at this time t»
awaken mens spirits, and to heighten their ex-
pectations on both sides. Strachan's seriBon to
the synod, in favours of moderation, alarmed
many, and made them more firm and zealou.
2. Ihcre were papers on both sideSi sons
^ivin^ reason why an ease should be ffrantei
to the Papists ; others giving^ reasons vviiy ov
penal laws against Popery should not be takca
away, nor weakened at this time. 3. Alex-
ander Miln, of Linlithgow (on whom tbej
laid much stress for making the burrowi)^
deserted, and declared 0|>enly affainst Popeiy.
4. Dr. Sibbald, from an inward remorse, and
trouhlc of conscience, (heiiig now come from
liondon) called for the bishop of DiukeLd, aod
declai-ed he can tind no safety, nor security ef
salvation in the Popish religion, and desired to
be re-admitted to toe Pi*otestant Church : and
ofl'cred to make a public recantation : but tbe
bishop of Edinburgh refused it as unseasoB-
able ; though others called it a very seasoDiUe
act and dispensation of divine providence, ftr
stren^thenin;^ staggering protestants. 5. Ram-
siiy hi:>hop of Itoss pre!iched a sermou in tbe
High Church to the mciubers of parlianieDt,
which siandalized the Papists extremely;
wl.i reon the cliancellor caused punnel him lie*
fore the bishop of St. Andrews and Edinburgh,
for defaming him and his brother Melfoit, by
saying to 31 urray the commissioner, that tbey
had put this bone in his loot of being commis«
sioner, to out him oi'his secretary's place ; and
that they dcMgued him no kindness by this
advancement ; and that ho was not coucemcd
to promote their self-ends. This left a great
tash on the commissioner, to reveal a secret ;
though others palliated it, that he did it of
purjMj!:^ to let llicni sec he was on his guard.
Ross stood on his defence, that by the caooos
he behoved to he synodically tried ; but tbey
not being able to prove it on him, it was let
fall. ^ '
*^ There were also at this time snodnr
pamphlets published to strengthen the Popish
i'actiou ; as the phihisophic Theses of Air.
Thomas Burnet, lU^gent in the Marishal
College of .Alicrdecn, dedicated to the duke of
Cordon, wherein he asserts the king may abro-
gate and annul laws, and that the three estatee
cannot question his pleasure : Item, Cartwrybt
dean of Kippon's sermon, that the kin|^ cm
dispense with the laws in cases of neoaentyi
and whereof he wm th« m1« judge : ItM^ •
1175]
foY nrgUcting io tahe the Oaths,
A. D- Km.
[1174
And that ibe defetidant after such neclect,
•c, 10 Mar. 2 Jac «. &t IJaekinglon in Keiil,
did exercise the said office, and siill datb, con*
^Fct^uasItc to Moderation, hy Pen the Quaker,
• tfieved : Item, Utflcctions on ihe Bulls
l*aaltJie III. and Piu» the V. nf,aihkst
'» V the VII L and queen Eii/.aheth of
.rating the case of these papal ex-
tjs, and itroving^ the Popish
Joyahy, apinsi Barlow Li>ilmj> of Lincohi his
Bruthm fulmen^ wherein he distcovers the vil-
lain)^ of tlieir kltigf- deposing doctrine, and why
they oiic:ht not to he culled Roman Catholics:
Item, u iilly pamphlett called a Net for catch-
' ig the Fisheisol men, hy a cadet of Diindtiir-
~^ regiment: Item, 8mulrv Catechisms, with
*ihop of Meau.Vi^ Pustura) Letter to tho&e
t*ints in his diocese who had changed,
he impudently avers, that they had siif-
»rolence neilfier in iheir persons mi^
goods: lietn, a pastjoil called Pupt-ry anatu*
' hrovinij the Church of Englund could
je idolatry on the Romanists, without
- jiiig themselires as guilty of the lame
crime.
^ !Snme who were for pleasHip the court,
givint;: them tintiiething't proprif^ed that any
' Its who should take thtr benefit of the
tion, should fir»t ahjure the pope^s
wer of depoKing* kin|r<i, and take tlte oath of
"^ iaoeei at least muking the kioff smircme
his own dominions; and that tney should
fare they were not obliiJ-eti hy the prin-
ciples of their religion to persecute and ex ir-
us as heretics ; and that this indulgence
Jd only last during the kind's life, or a few
ithi atler, thai if they cannot comply, they
may retire and go abrond : for they apprehend-
td that a lV(»teitant suc<rcssur would rej»cit>d
adf ; and if thisi parllameni would lie obstinate,
♦«ft tt tui-Iii ht- gj'ranted by another, if the
Kill. r- the nomination of alt the
' prni ijd, (the burrows beings the
li mxm wall which the Papists fomvl hiirdest:)
f IBif lea^ thry should chuse auolher to \h* ihcir
to parlijimmt, beside their
; h they mi 14 ht do, then for pre v en •
Lti^O of that, he might n^me the whole town-
lAviictt ; und so it could not mi^s,''
' ^ If 3. At Privy <*ou«cil, a Utter fmm
1 in read, de[»rivin^ Robert Bruce bishop
vj uiiukeld of his bishoj^iick, ^iithout gitinir
any reason, (have it wii>) notour thut it \^hh ff^r
hm oppoKin^ the e^:tabli-%buietii of Popery,) ul*
b€il lit^ £:tII nut fi i tttrm et lm(, am. Some
•aked, if the Kpirkiual su[o'emacy criven the
king by the tityt «ct of piirliaraenl I6tif), whi*
to 51 Lir. • ufi't Pratostaiit ; fur a Pnpifl
icy, and wiH tml have
ih^'Churthi* Voet ju-
iuterfii- )>Acr. r^p. I. Sect. A. § 12. deuiea
Hfer to prinrp^.*'
"in 4itiu the act
y b •imtni!'
[Krit^ 111 'lat II mttrl't have
IIm Protte ^ being neither to
trary lo the stattrle of 85 Car. f. for pririenl-
iug ilnngera from Po) i^h recusaut«,
Wheteupfin the dtiVndaoi *il Korheatrr. at
alarmed, united, nor fortilird with argumenta
and conrni;;e, a$ tlo-y grew aftiTuanis*. In the
narrative of the druutchl ot' llutt act^ *<om«
complained of the uord s^augiuiiary as odious,
nnd not a term of our law, It, TUm thr t-stntifa
shtiuhl pre4»unie to say, fhcsie laws were not
executed by tlicir pmlcccbHors ; sediiif tlie
executive power is not ItM^rred in tlieni, but m
the king. 3. In atfiruiinij; (uithcuit the king)
that ihey were resoUed to adhere U) the Pro-
tectant ielii(ion ; the three entaten, without (he
kirjg, not being ruitncn jtira^ and havai^^ no
power ; Vkml so it laoketl tike Oie sty Ic of the late ,
rebellious parliament. But the point vvai, tho
king would noi concur with I hem in that re-
sohe ; next it is pto(t$>utio lu itruria furto. It
is remarkable, that tlie draught of the act s>iy s,
th<»$»ethat are of the (ii)Mtiin reltgiiin sbttlt have
liherry, which is praatniU tctn^}ori%; rr^o itt
propnety of gmuirDur comitructtttii, llio^e v^iio
lurue«J PiipisU slWvt the act are nut luclufled,
** The methods of s^dicitution to obtain coo-
aent to this act were very sumi^e und extra-
ordinary, 1. The lading iiMde ol' men trotn
their places, who could ttave no iuttrest but
jerviiig their c4in*ctiiices. 2. The eom-
mandmg 3lar, Hosa, Kil'iytb, tftr John Ddl/jcl,
Ace. to their chirges : but they ulfrred ii» give
up iheir commtsiiont. Jt. Tlie ordering Or-
bision, ike, to go the higldniid comuiis^iuti
of justiciary, which he refused ; the king'i
writ to atttuil tlie pnrtiameiil biinK^ more ue-
cessory. 4. The Jita^iny;: thehivlivniuf Rosa.
5. I'he iniprisoniu$f my two ser^aulf^ ; I lie«
mij a member of purhument. (i. Tiie otfcringf
to remove Mr. John Dempstir, sir Patnck
Murray, Brooudiall, 'Ncc. voa not actual bur-
gesses, and i$o iur:i|Mdde ; and yet they bad,]
oeeu ailovted to sit and vote« 7* IMiebiiugmg
in of new mend»er8, us Newark, 4ce. thcuigli be
lurned against theuu 8. The iuiportunilie*
u«ed by sir Wilhum Patei'^ifin, Mr. Thouiai
G<»tdini, Baihe Aidy in Alterdcen, in concuiis-
iug member* of nailinLmetit. 9. The priutuig
and ipreading of sundry papers ul lhti» time (
HS Burnet'^ Thrses, lVc, 10 Tlteir dealing
with nicujber* not clcsr, to stuy viwuy or gd
home; as with Brolbs, tutor lif <>PLean,
-Vc. And then prulunifrng the mrcttng to
weary out the pocrrcr xort who hud exliau*ted
holh their money and cirdit 11. Tlie t^ttert
were one pi*st ill broken up and sernvhed, \a
ace if any corrtstiouilenee or iuttdii^icu'-'e ct'uUI ,
be di*icoveri d heiweeu Scotland and I'^nglauili
thry koiiwinif %q peHl-ctly »«^|l at I that j»iH»r(l
here. The Uiirleui «T»2**»te troni lloUaud bora |
«tl«o a go^kd jic**oiiot of wiiBi pu'ffieil m corjj
hcnts pjwliauuut : then tt wan nfport»d uh if hi^J
majt**ry liud heeu ooe^' r»i*cd*etl to cumr iImwhJ
him>.r|f by u Korprize, on twiior rliree duyf ]
|Mii>ting, imd to haie it umnagcd m tiia ouq^J
pre»euC»'.
ti Sundry provttkscce coocninrd utiu et thtt
1175] 2 JAMES 11.
the ai«>iize8 held 29th Mar. 2 Jac. 2, was dalj
indicted hr sach his neglect, and for executing
Trial of Sir Edward HaUs, [1176
the Mid office contrarj to the «aid itatnte.
And thereu(M>Q duly convict, as by the re>
time, to defeat this project of toleration ; as
doctor Sibbald's turning Protestant ; the lord
Douu's the commiiisioner's son, turning Papist;
Alexander Miln's deserting that side; and
God's raising up men to appear for the Pro-
testant interest, who were not very strict in
any religion : and the boasting of some, and
the turning out of others, contributed rather to
harden than to frighten ; together with the
bishop of Koits's sermon, and his usage, &c.
and tiicir hindering the other bishops to preach,
particularly Douoflas of Dumblain, because he
would not give assurance to forbear preaching
agiiinst Popery, n*)r show his papers. The
earl of Cailemlcr, and sir John Maitland, by
the old |)olitic, didercd from their fathers Lin-
]ith|^ow and Luuderdalc, who stood for the
Popish side. The conimUsiouer, in his return
from Dunyliirsel, knighted James Caddel of
Muirton, and he Mas his only knight, except
Mr. Robert Colt his advocate, whom he knight-
ed on the night the parliament rose, when his
power is expired. It was wondered how the
chancellor and secretary came to employ him
in so critical an affair ; but ihcy had promised
themselves no opposition ; and the Papists
had a good omen in it, that as one earl of
Murray made the 6rst penal laws against them
in 1567 (but they were made in 1560,) so an-
other earl of Murray his great grandchild
should take them away ; but this presage
failed them tor this time. The crown and
other honours were immediately on the riseing
of the parliament lotlged in the castle, and the
commissioner departed for Ix>ndon tliat after-
noon. The chaucellor followeil him a few days
theivafter ; and each of them biamod one an-
other for the miscarriage of the toleration act ;
hut much biaine was cast on Tarbet in this act
of religion, for he had possessed his majesty
with an opinion of its being attainable, and
shewn him the rolls f)f the menibors of parlia-
ment.and m.irked down tijosewhoni bethought
would beloraiMlagain*-.! ii. He diil cast much of
the bhnncon the two ltiy;i{)^)s, and they ilovoived
it on Tweedil»ie :inil iiiai ; however he took in
parliament a ratification to hin)self and his son
of the barony of Taibet, \uth an erection into a
rei;;'.iily : which duke Hamilton opposed ; but
Tarliel shewed, that the (uike'sown regality of
Kiiiiiril \vm\ more unusual clansis. Before
the 17th (f AUj^ust, to which the parliament
WHS ai!/m"ned, it >>as nf;uia jiroroj^'ilcd to the
■2 1st <'i 4 *Lt. brr ; tml a litilc bel'i>rc it, by pro-
il;iiiiuio!i it nus r.iyvrlved : i\'V by a new tuie,
tlh* I'opish \-\Tiy hjped to !4"t.t ti»e boroii^jhs
i!i<'-.T ri^j^litly eoi.S4iiiitcil,by i\\:: 1.:im;"'s assniu-
iii.r ti.i: nomination oi'tlu^ iriuj^'istraies; yet the
oilier paity bragi»til, that these conunissioncrs
ef sliires '.\ho had appeatcd for Popery would
nut ho. chosen agaiu ; and particularly some
coin^Kiah.*^:! of clectiu;^ hmls of the session for
mcnibcrs of pariianient, whereof there were
uiueia this parliament, viz. the deik-r^^tar,
(who was absent except a day or two, though
they pretended his sickness was but simulale,)
and the justice-clerk, (both of whom sat not as
commissioners, but as officers of state ;) and
the president, lledford, Forret, Bakasky,
Drumcaim, Boyne and Pitmedden ; whicb
last, as Athanastus, only opposed the ooart
One said of this parliament, what the Iriih
Tague laid of the earl of Feversham, wboi
the king was making him a knight of tW
garter for his defeating Monnurath, That Goi
only deserved the garter ; so the finger of GW
was much seen in the stedfastness of this pa^
iiament, who had not one great mau in pubfis
place to own them ; and it behoved to be fnm
some higher principle, that noblemeD, gea-
tlemen, bishops and others, chcarliilly U
down their places, rather than violate tbor
(Consciences. And amongst others, Mr. £«•
bert Innes writer to the signet, was put off
from being lyon-derk, because of bis not con*
pliance.
<' Some Papists compkined, that su* Williia
Paterson, Mr. Thomas Gordon and Baafii
Aidy, their indiscreet meddling with membos
of parliament to iuHuence them, did wrong H
their cause and interest. This ezcose was
made for duke Hamilton and the pnmAead
going alongst ; that by sUying in that party
and giving them moderate eouusels, they coiw
do the Protestant reU^ion better service thaali
cast themselves out ot employment, by refuyng
all concessions whatsoever. Yet others ssy
from Paul, *' We must not do ill, thatgood may
*< come thereof;'* and, by tiieir complying,
they scandali/e and ruin many weak ones, their
example being infectious.
" When the parliament is now risen re is-
fecta, it is said that the bishop of Ediuburgb,
lord Sinclair, Uoyne, and many others who ap-
peared for the toleration, boast that if the act
had come in, they would have been against it ;
which is a tacit acknowledgment that they
blush to own uvowetlly wiiat they did. Vet
when a king by his letter to a parliament de-
sires a thing, it is equi\alcnt to a commaod:
* est rogarc ducuni species violonta jubendi :'
but it is a great misfortune where subjects are
necessitated to difl'er from their prince ; and
they are to refuse hiiu with all the di^vTetioo,
humility, sorrow and regret imaginable. Ooe
maliciously said, that the bishop of Edinburgh
resembled Steven Gardner bishop of ^Vincha-
ter in queen Wary of England's reign lor craft
and subtlety ; and they C4»mpared our archbi-
shop of St. Andrews to Bonner then bishop of
i^udon, who was headstrong, temporizing
and cruel ; but in somu lucid intervals, he be-
|>ins to think he ha^ been too much Jed and
imposed ujton.
*' The new -converted Papists stirring at this
time for a toleration, (for the old ones were
not so forward till ibrced,) had this good tffedt
to cause the ignorant IVotetrtantf (tfcn of tht
Jbr neglecting ia take the Oaths.
mi
^^ptbf reof apppara ; whereujvon the plainti/T
PEfiie cnuiled to tlit6:iCK)/* B3 Ibrfcited by the
iiclenclimt.
I ^
miuisitr}') sltJily the cotitrovereits betwixt m
fc«iter : bul w ouiil to GotI ibe only emulatjon
prere,' who slioitlii kad the tuosi g^nlly atiil
poly lil« i ibis present king when duke of
Vork, was used lo say» tire 8i"<»t* PapbU having
|o iiiudi private fiberty of ibeir rdigioii,
^kboul ttiiy puDishmcat applied, bad no rea^ii
llo cxitnrdaiji.
! ** The Protestant parly irtaryin^ of the
leiig^th of this parfiajneiii, were'i»id to be
Uilnkin}^ uu str&tagcms to blow it up: As io
|»jri|i^ Ml an act for ratifying all our Jaws
uti&t Popery: or to stage the bishop of
Uuburgb, 1, For sayiyg hi liis last s^nod,
iUod bad set a Popish king over us* lor a
^nicni ; vrhich if true, thtn we cannot pray
* ihe couiinuauce or long fife of a judgment.
That iu plain parliament, in answrr to my
rd BUnlyrCf he reviled our confession of faitii
t 1567, to which we are swonj, saying it cim-
iaaiicd seierai thingi Popi«ht and other things
iMfderin^ on fauaticisni ; whicli was a miscon-
pmcling Uie lawn, and alienating the hearts of
me people truni the king, and leasing- making,
y U> the 101 h act in 1583 ; ami many
but the rijiiiig ot U»e parliament super-
l ibi« work/*
tiiber 9. At Privy Council, there is
i>m I be king, tnuking the earl of
^(a youth luile poKt minority) a privy
or; and be L»eing Popish h admitted
iPitlMNiit tbe t4^t. This is in in»itauou of the
blfUitk Privy council, where the Popish lord^
■rba were m tbe Tower, as Powitj, 6lc. arc re-
piit«d.>
f ** September 14. Tlie king'i letter wag read
In favour of the Papists, taking them under lits
kwK and protection ; and giving tbt^m tlie
private exerci!>e of their religion, with a
eJiajiel in the Abbay ; and he conunands his
Evy Council, and all his judges and magis-
4fit^ to maintain ibera in their nghls and
bmilrg*;^; (which some asked what ihey
fc-ere ;) und nidemnifietl them ngaitist all the
|ienai litwa, anit,^ fmr exprcMitm those ogiLinst
Imtfiit ng and drawing otbens lo I heir religion ;
^bicb kiccmcd to home an odd anti uure^iSfMiable
aoc^« Mee act 2Uli IbHl . lie uUn
bis chaplains and otberi, which is ihe
onlen of • Acohihi, of,unrir, \c.'
\ namlive of ihia letter extolteil the Konian
die 6eruce« to the crown, »nd dccUiruiMj
be diisloyalty of many Pi'oti*staot« ; 4iiid
OU aome of llie memb<ns of lb© lute
Dt ; and all are dischargc^d to disturb
answer was appointed to Im> prepared
unM the lOth of Scpteiobfi' ; and acconl*
ugly ttto drauglit^ came in ^ the o»»e formcsd
pv thcbiiih'jp ni Ktiinbiirgh, and the other by
lariiet, Agujust ilti' luKt, duke iijimillon ex-
ihat It called the kin^V |iii ntgative a
itcurtty and warrant for introdycing ibi«
A. D, 1C86*
[1178
The defendant pleads, that tbe king witbiti
tbe three mootlis, in Uie declaration meutianedt
and before tbe next term or quarter -teskiotis*
ease and favour to tbe Papists i for he 99,1^^ a
thing might be a ffecunty, and yet not legal;
as a protection against a caption secured the
debtor, yet it could not bu termed legal. The
cbauct^Uor aiUced briskly, who woulil quraiioti
kiis majesty's power to rclnjc tbe laiv* ? 8a
duke ifamdtou retiring fiaid, be wa« not doubt*
ing the king's prerogutivcf but wliat needed
tbe Privy Council declare it to be taw ? sir
Cieorge Lock hart president &at mutt:; but wbis*
jiered privily be would quit the Ijeod ere he
bigned it so ; thus the word * legaP wa:* delete
and *" sutiicient* put in its place. Their answer
rin in general terms, ackno^^lcdj^ing the king
to be liu absolute sovereign, and uiiaceountable
to any t)ut God ; and that they aoi|uieficed in
bis jdea>iure ; wbicli not coming up tbe full
Itnglhf did uotabsidutely please; however the
Chancellor would not liign alone an lieafl of ibe
court, but got all their hiind« to it on the IGtb of
September, and it was sent up. Thus they
granted what the parliament had refused.
They say the bishop ot Edinburgh, in a upceclt
thi$ day, insinuaied aa much as it be called the
last parliament a seditious meeting.'*
** 8epieniber 16. At Privy Council, Wat*
sop tbe Popish prtoter, if by a lelier, made
printer to tbe king^ii lamdy, though Auder^loa'8
heirs have a gift to be tbe king's prinkr ; and
the Privy Council gave him tiie right to prinl
all the prognoAtic^ations in Edinbur;*b, but
afterwards the clerks were allowed to extend it
to all the kingdom ; and more will follow/*
** Nov, 11. At Privy Council, there i!i a letter
from the king, uoiuiDating the carl ol Seiilorib,
a Papist, (by tbe marqutsof Povus his tather*
in-law 'k power,) a privy couu^t:ltor, with a dis*
peuKatioD from the oath of tiie test. There
waa al^ a letier inakng the duke of Gordon
one ; but he being aeot lor to tbe caxtie, and
demurring to accept at that time, it wasooo*
tinuetl tdi the next council day, Nov^ 18/'
** Nov, la. At IVivy Conned, the king, by a
letter to the bisboi»s ol 8t. Andievvs aod Et^in*
burgh, impowered them to admit any of the
cuntormist ministers (.v ho hud debited their
kirks for the test) to any cburcdies ol their
presentation withm their dioceses, a^ also \m
(Jlahgow, without the ttBi ; »o iviv ivai th«
archbifihop of Glasgow beginning to be neg-
lected. 80 me thuugbc they should m\ eui»
brace it, Wvause it was a & lengthening of this
prerogative* on which the toleiation of Poperj
and ditt|*cnMng uUh our lawsi were foutuled.
thh* Tf* ati^ueiJ, this bemg a GODaideration ex*
iriiiMC U» iheir eittryi and tbe sin only /re/ at?-
rWcAt, tiiey i>ught not to rt fufte a call or door
ojkentHl to them by providence* * \m luibi m
* noue*angeha^avero/*'
** Nov, %\), rUe king's yaug arrited howk
London to Ltitb, v«uh tbe altar, te»tnien|«,
iiiiagcii, nricKtu, and lAber ilepeuderi^ for the
Popidt cliupel in tbe Abbay/'
11J9J
2 JAMES n.
Trial of Sir Edward Hedeif
after his tdmittance to the said oiBoe, and be-
fore his suit began, sc. 9 Jan. 1 Jac. 9, by his
<' November 30. Bemg St. Andrews day, the
Papists consecrated, at least initiated, their
chnpel in the Abbay bv holy water, and a ser-
mon preached by Widrington. They bragged
this was a great providence, that it fell on the
festival dedicated to the patron of Scotland ;
but they can easily contrive, and make them-
selves authors of such providences as these.
Some affirmed they would not solemnly Ci)n-
secrate this chapel ; for probably it would re-
turn to the vulgar, proigne, and common uses
again : and seeing such multitudes flock to
theni, they behoved to have a larger place for
worship, meaning the Abbay-church, which
they took afterwards."
*» December 16. At Privy Council, Niddry,
a Papist, is admitted a privy counsellor."
" Jan. 18, 1687. Mr. Alexander Swinton of
Mersington, and Mr. James Daes of Colden-
knows, who had laid themselves aside from
being advocates in November 1682, because ol
the teit, arc now, upon letters from the king,
re-ddmittcd by the Lords, without putting the
test to them, in respect the king, by bis letter,
declared that he dispensed therewith by his
prerogative royal. The Lords did not vote it,
and have not yet recorded their letters. They
paid for each of them 7/. sterling to Melfort,
who passes nothing gratis, but exacts even
from the officers of state and president, for
their letters. Quariiur^ How far this entry is
a strengthening the king's power, to dispense
with and relax the laws against Papists."
*' The commission granted by the King, under
his great seal, to near 50 persons to visit all
our coleges and universities, was read, and the
members k;;pt their liist meeting. The pre-
sident sir George Lockhart declared he could
not act till he took the test, according to law,
which the members present did ; hut this
scrupulosity disjileased the Chancellor. Some
think they will purge our colle<;:es, and reduce
them to tl^eir iuundations, and inquire into
their mortifications, and plant whom they please
in them."
" Feb. 17. At Privy Council, sir John
Dalrymple is adiniited king's advocate, and
by a special letter the test is discharged to be
ao ministered to him ; though this was not very
necessary, because the king's letter fur a tole-
ration was also read, which discharged the
test in general, and sul>stituted a new oath in
its place, and gave indulgence and permission
to some of the Christian persuasion , viz. the mo-
derate Presbyterians, (Quakers and Papists, and
dispensed with the penal laws against them."
*' Feb. 24. At Privy Council, the answer to
the king's letter and proclamation of indul-
gence is brought in and read, declaring, they
conceive his majesty may employ whom he
pleases in offices civil and military, (but did not
mention ecclesiastic) and thanks him for his
reiterate promises to sectire our religion ;
which the Papists on the Privy Council meant
[1188
letters patent under the Great Seal, and Imi»
produced ui court, did dispeoie with.
of theur own. Duke Hamilton craved it upts
see till the next day. This was oppoaed ; hot
they allowed him ume td peruse U prasently,
he not having been called to the drawing of it:
On tins, he and bis two sons-in-law DuDdomU
and Penmuur retired. Tweedale, Yesterttd
Drummelzier were also absent. The oom-
sellors remaining signed it ; and to make the
absent as deep, they passed an act, that the
rest shall be required to sign it. And aoooid-
ingly Hamilton, <!kc. bemg required, they it-
fused. Vid. 10th March 1687.
*' A sub-committee of the new commifliQa
for the visitation of Universities met, and dmr
up three overtures to be presented to the coort^
to be past into acts; Imo. That in their etfaiek
dictates, they should instruct the youth uihs
unlawfulness of defensive arms and resistiacs
to the king; which seemed to set the cuiioai
spiiits on a question deserving rather lobt
buried. Sdo. That the regenU in all tisMi
coming are to be unmarried persons ; aeeiif ,
by the tbundations of our colleges in the tans
of Popery, tliey were designed for churchmeo;
and it was a rule and statute then, that they
should be unmarried: But Edinburgh isol*
lege, erected since the Reformation, has as
such restriction: And 1. 3. and llC. *Jk
* professor,' extend the privileges given thereby
to professors of liberal sciences, to their wives
and children ; trgo^ they were allowed tl
marry. 3tio, That no regent sUy above eight
years in the University. Yet ^ per 1. mucC
* de professor, in urbe Constautinopolitaos,'
great dignities are conferred on them who
had taught 20 years together. Thir two wers
to begin at Michaelmas 1608; and it wis
doubled if they should extend to primarsaad
professors. There was a bill given in by tbs
college of Edinburgh against their overture^
Mhich put a stop to them.'*
" April 1 1. At Privy Council, his majesty's
new letter is read, explaining and enlarging hii
indulgence to the Presbyterians, that they may
now preach viitiiout taking the oath, which h«
had required to be put to them by hia former
letter of the 10th of March, Vid. 5th JoIt
1687."
'* June 1. The lords of session met, and a
new commission from the king is read, nomi-
nating the same lords, with tliis difference, that
it not only dispensed with the test, and sfl
oaths, except that de Jideliy but expressly dis-
charged them to take the test ; to which com-
mission thev gave obedience, considering they
had taken the test already, and that this conld
not loose them from the obligatitm of it ; aod
that the king may suspend the laws during bis
own lifetime. The Popish design was to maks
the Protestants acting thus in public offices u
deeply guilty of the transgressiou of their grest
idol, the test, as Uie Papists who 4iad acce|>ted
to act in public stations without if, on the
kmg's dispensations. Then it was proposii
^fir neglecting to take the Oaths. A. D- 16M. [1 18f
fmnii and iliJiclmrg^ (amonc^ oth«ri) the <!efen< dAfit from taking the m'id oaths, and from re*
a letter from ttie kiti**^ ate in7>itnilnt hy duke
llnmiltim OS knt^^hls of St. Andrews, or the
tUislle* Tbev gare tiiejr oailiB on ilie Popish
' - uhicti the mai^uiK of A thole stumbled
to do.**
,ii;_amt 2. Lcaly of DaJquftinf, a Papist*
18 made a privy counsidlor/*
" Aucrust 8. At privv rnntiril, the printen
wid hookscllers of E«l • rulled upon
oath to declare what I ■ y bad iluriugr
these twelve nmtilhs iiasit iinpuiifdt printed, or
sold, and to produce their cutato'p^ites ; het-aiise
the chancellor alleds^ed ibey hHij sold sundry
scandtdous and seditious iinmphlels ; ruejinjug*,
il IB likely, Dr. Gilhtn Dtirnet's Travtls, and
the hooks from England »i:fainst Ftifkcry : and
sundry of ihein were " ' * 'nod;
and slU of them disehai my
without a special licer. nru
the chancellor, or the w,
ISnt James W-'-^- ♦"«! x ^^m-* ^-,,,,,..1 in tha
abhay, is avi m ibis act ; so he and his
son may prLt .. :.... ubat they please againat
the IVolestants."
♦* Aug^ust 16» At pnry council, the roaster
of Bulmcrino i« iidmitted a privy counsellor, oo
a letter from the king, procured by Ins fetltef'
in-kw the apcbbishop of 8t. Andrewi."
•* November 3. At pri^'y council, a letter
from the kini^ is read agaju^t Mr. John Hardy
doctor of Diedicine, now one of the IVesbyterian
tiiinislers, i'or tjip expressions mentioned, 18tb
i>ctober last* He was dealt with to retract;
ami finding" bim obstinate, it iviis not judged tit
to make an example yet of tlie Pre&byteriaus,
till they saw what they would do ; therefore
he was continued, with a reprimand. But
anew [r**-- '- •- •' r-^f wiis read oa the
*2*?n<l ^1 'i|jr bim to be pan-
nelled v , ... i..,^ ,Ue juatiees, ihr his
preacbint*'; whereon he is imfirinoiietl (for he
would not fly. though he hud leisure, and ad-
¥erti«!euient,j and a libel is raisetl a^irist Kim
on the 134(h net, parlhimcnt 1584, act 10,
158.V; the privy couucirji proclamation in
HeutemlHT, 16B0* at^inst [eunm^-makcr}!, (or-
dinned to be read hy mtnisters fpuirteriy*) and
ott the quality of the kind's late toler:ition and
iiidultr^'n'^e to the Preshyicrictfis, ihiit they
should preach nothinf; ttmt might alienate the
hearts of the people from the kinp tjr his g-o*
fernrn^nt, u^r meddle with his pn»ceediu^ i
aiid» on the tir*t of D€rrml>er, 1(387, she binjf*i
advot^ate pro|Hi9t'd to the privy council, that,
N^fore he ^lijuld give him on indictment, h#
miL'ht take a prrcoj^nition of the witnesses wli«
hn^nt htm «iHy these words, Thri wasgrantedi
ibouch tit-edless ; ior at tirst, Dr, Hardy biddljr
owneil what he liad said, (till he was intreated
by his hrethreo to put I hem to a proof,) and it
is the Preihyterran prmciplf, flmt idolatry,
even onder ihV t(<i«pc), is punt»linb)e hy death*
and that PofM-ry I- such; and so they csn
n«^i'rr think but law* aintinst Pa|H»ry are both
just, lawful and stctttiary. Sdo, juecn'avtd
ihnt the clrrks mtj^ht eoter of new : To which
[he chnncellur answered, by auy means ; so
fhcv sod the maceru were of new liworn rfr //- I
iflt; which was o surprise, ther*^ « ' ^ -
mm warrant from the kin^^ for disf
he other oaths ns to them : but thtv ■ -^-^ ». -.
0 bo^le, and knew the oiith tie fuidi mijjht
uired of tbem each se^^ion, and lh«>y '
not put theuD^f Ives in th<^ re^j;:i5iter*s re- '
e for new cimimissioufi. This commis-
the session by a misitake named duke
lion before the nmrquis of AUtole, privy
8orue talkeil as if the advocalos places
also ti> he declared void, and tliey to be
itted without the test : but others said,
ing* them void (thotigh in order to an
admissiou) ould not be» advocates
heinff fftun the kio^^, hut .a part of
Ey, which could not be onuuUed with-
iraiilt-^'
June 16. Thp kiog^*s new commission of
[ council 1; read, and the ihikc of Hamil-
[ now present, ihey arc all receivetl
! Ifiit, only tnkinj/ the oaUi dc jJi/fU*
nrgn and the earl of Sunderland, the
cretary* are adile^l, to make a Scots
England when ncetliuL**
My 5. Ax privy council, the kind's new
Eiple indulgence of tolerutiou and liberty
nscreiice is reud, and ordained to be pro-
snd published. It is much of the
t'lfi^ a one, but wants an lodem •
|%»r I
fn\yii, M y , ;i, there is a let-
id from th e k i 4 , lb at t li e a bbay -
; the cbapt J r>i ;oni;iu»^ to lii*i (mlace
'-hous*-, ;uid that the knijyhts of the
^r of the thistle, which he had now
old not mi?elihSi. Aridrew*schurch,
noliUied in the r* liiirMm, as they
I bur reformation,) and so it was m^cessary
hem to have thii« church ; and the nrovoit
linbiuifh wau orilaintd in see the fceys of
ren them. Aftrr n hmj* silonee, the arch-
hrtp 4»f (ilft^fow told it iVMS a nicusal and pa •
trinjotital church of the bishopric of Kdin-
TiUfl^h : fiTiil though he was now traufilcUcd, and
! see wast vacant, ypt it bebujirpil uot to the
' to rleliver the keys : thit wa^ undtT-
that he W(^s W'ckifiij the enmpliment to
ye<l bimscir, to keep session
flrj^h, whereof he w > 10 he
dator ; howmer it wns nrijuKifd tlial
keys should be immediately dtJiv<rr<l to
H^Mw MiLir Kiniself; and the mhahilantt: of
fi {^\[\(\st* parochial church it wnn
r»L -u 'se the rctViriuattou, hut Indonf^ed
pvetit then*,) Wifre ordnioed to ^o to
"Yfwtrr't church ; and the I'VencJi mi
•lid C'>nffn*ifalion were put out of it to
_lijrh**i'hrKd, or Coiiunon-ltall. Ho thi» i^
first Protectant chuivh taken away from
27. Ttii« day thr rhonr^ellor, the
(irdoO| aud tkt: man|uis of Alhuic, on
! 183] ' 2 JAMES II. Trial of Sir Edward Hales, [1184
ceiving the Sacrament, aud from subscribingf | the declaration against ibransolMlMitiation or
that sir George M^Kenzie might be also ad- under the great seal. I know not if there wai
joined to him as pursuer in the process, for he
foresaw some hazard to pannel a man for own-
ing the standing laws, and that it might be
called at another time treason to impugn the
authority of the three estates, and the legisla-
tive power. But the president opposing it, it
iiras not granted. — On the 5th of December,
the witnesses were examined at the criminal
court, on the precognition, who did not prove
the expressions libelled, but others : several de-
poned they did not bear him, because he
preached so low. He himself in the general
said, he conceived he had preached nothing but
what was agreeable to the word of God, laws
of the land, and his duty to the king; for he
had suflfered for the king.
« On the 13th of February, 1688, he was
pannelled, and they insisted a^iust him for
these seditious expressions against the kind's
design of havinsf the penal laws rescinded, viz.
that he was sorry others, (meaning the Papists,)
enjoyed the king's liberty and indulgence, as
well as the Presbyterians ; and that no Pres-
byterian in his principles would approve of it.
It was alledged for him, that, by tne 2nd act of
pari. 1669, speaking of the king's supremacy
m church matters is not treason, but only arbi-
trarily punishable. 2do, The expressions had
no sedition in them, seeing he might regrete,
that Socinians and others had liberty to vent
their doctrine against Christ's Deity, &c. The
criminal lords took the courage to find the ex-
pressions libelled not relevant to infer sedition ;
and therefore assoilzied him from the crimes
libelled, and lilierated him from prison. He
had freedom all the day-time before to come
abroad. This displeased the Papists as much
as it satisfie<l the Protestants."
" Nov. 29. There is a letter from theking,nar-
fating his toleration to the Presbyterians, and
that it was not his purpose, when they marry,
baptise, and bury, that the emoluments which
used to be paid in these throe cases should be
withdrawn from the readers and precentors at
the regular churches ; and therefore orHains
these dues to be paid as formerly, else there
should be no registers for such baptisms or
marriages, as were kept at the cliurches ;
which were a prejudice. But for this, the
meeting-houses would offer to keep exact re-
gisters also."
'< Jan. 19, 1688. At exchequer, a new list
of pensions comes from the king-, most of them
in favours of Papists, only Robert Barclay, for
the Quakers, and James Stuart, for the Pres-
byterians, are classeil in with them ; ai^d the
first got 200/. sterling, and the second :)00/. —
The last was foun<l not to be yearly, but only
lor defraying his expences to London."
«< March 22. The rules of the Popish col-
lege in the abbay were printed, inviting all
children to be edacate there gratis ; as mounte-
hukkM promise great things with their pro-
frnoM. Colleges need an erection and pattnt
under the great seal,
one here."
Wodrow, p. 578, says :
" November 12. A very extraordinary let-
ter is read, dispensing with an act of the voy
last parliament, requiring the rommissionfH
of supply to Uke the test. Most part of tiie
persons, if not all in the underwritten list, wen
Papists. In favours of those his own friesdi,
the king very frankly breaks throush afaiw,to
which he had given his assent a few noothi
ago. Such steps need no o^rvations, tb^
are what Protestants may expect from a W>
gotted Papist; and so I just insert tbecomh
oil's act, king's letter, and list, as thej stand it
the registers.
'' the letter underwritten directed from tht
king's most excellent majesty to the priry
council, for dispensing with some pcnmi,
commissioners for supply, their taking of the
test, conform to the list therewith sent, htSag
read, was ordered to be recorded, and an sat
ordered accordingly to be transmitted In tbt
persons therein mentioned, and to the eps-
veners of the commissioners of the retpedivc
shires therein concerned ; of which letttr wd
list the tenor follows :
* James R.
< Right trusty, &o. we greet ycm wdL
Whereas in the 12th act of our current pv-
liament, intituled < act of supply,' therein
clause ordaining all the commissioners thcnia
named, to take the oaths and test apnointei
by law, which clause we judge fit, tor osr
service, to require you to put viirorously is
execution, excepting these in the list here ii-
closed, whom we have dispensed with from
taking the same, and such as we shall here-
after di^ipense with under our royal hand.
For doing whereof this shall be your warrant,
and so we bid you heartily farewell. Gives
at our court at Whitehall, the 7th day tf
November, 1685, and of our reign tlie fiilt
year. — By his majesty's command,
• Melforo.'
A List of the Persons who are to be dispeiuei
tciih from taking the Testy conform to our
Letter (of the date of theae Presents) dt
rectcd to our Privi/ Council of our ancieiU
Kingdom of Scotland,
* James 11,
« The duke of Gordon, the earl of Seafordi,
the earl of Traquair, the lord Oliphant, Ri-
chard Cockburn of Clerkingtoun, Alexander
Irvine of Drum, John Gonlon of Rothemay,
Patrick Lesly of Balqnhain, sir George Gor*
don of Gitrht, William Menzies of Pitfoddeb,
James Innes of Drumgnsk, Adam Gordon si*
Auchmacoy, Francis Gordon younger ^
Craig, Mr. Alexander Irvine of Laimy, Mr*
Richard Irvine of Kinktoan, the hurd of Fel*
ttmeir, the laicd •f Wartie-kalj, Alcsander
1185]
Jhr MgUctitig (o take th« Osths.
A. D. tes6.
[1186
toll \n iht tift of f^ Car. 7*, ffir (m'temini^
^■osT^ff i'tom l*i>p»h iTfti«4iit*, or in iiny otiw
• Frojscr of Kinnanes» — -^ MacMloniild of
• • Binherft)it» Mac^rninld of i^rifj,
• ^^— ^^ Mai Honalil of lJa*g|toun, Patrick
• GiirdoM of Glftstynim, John Gmnt of Bnriin*
• riilfadi, Jatnri Gordon of CamHH, Jo(m
• Oortfon «>f Batdortiy^ Alerxuntler Gordon of
• Aurliititonl, GivettJit our <^urt at While*
• MI, tlic 7ih fUy df NoTf«mKrr, 1685, and of
• oar ffcig^n the 5fifSt ywif^^By bi'* iriAJesty^g
;, • comfnand. M rlfoho/
f Th« proclamation, «r fimt imhiti^eDce, Feb,
^9, 1687, wiUi tbe coiineil's answer^ aiad i\\e
laii|^*8 letter ta the conncif^ March 31, or the
Wiwood tokratioo, 4re in the cir»i* of HpreaU and
Wer^mon^ voL 10| pp. 735, ^t seq.
_Whf n kinflf James, havln;: rt|>^>mntefl Papists
■ Ireliiiid, ' >U their tak*
r^iif»n*iirr o ilitipen^
J .it (Lu*iLMl«lc»1l) •ivi'ole
5> i thi; ouuncil (Sunder-
' ' iiLT tlirectinj™"
lukiQ^ tli<tl
.» .1 «u. ►^irr : mid
>: niic tlaU-^ ., 1680,
k li'tid trensurt J .. .. ... ,.e!), he
will ste, I Ujlvc writteii to my
^ loe to dispense with l'i
[ w^uld I
, n iTu'lii
'S
\s well
places.
aud there*
nru anO frmu all eriifiM^ convictton^, peimUie«,
f^ "• -- ' - .... 1 ^ ^jp^ 1^^
t -oloncf i
w, i-i i.,r uvt M.v.iM.v,,, iu ,1,. ..»r tho pre*
* siTvins: of the kin^^^K prrson atid governiuent,
' Uy dhMnfx PaptirHi from siuing- in either
• rtotis« of l*arr»aTttenl;* Or hy the a^:ts nrvade
in the first or third years of kingf James 1, or
the aets made ^ Ehz. or 53, or *29, "f ^5 Elix.
And fh(' Mii'T by hii letters pntent, (punted^
ihftt I' I rn shoidd lie cnaWeiHit hotd
that I V place in England, or Wafc«,
or iJetHick, or in the tieet, or in Jersey or
Ouenisey, amd to rerfiv#» his pay or wage? ;
Any clause in ' notM, or in any other
act not>vith«taii! >i ohstanU^ thai the
defendant wasor snou; i ir; j j{> i .lut ofufict^
Ashy the«a(}d tetters juvirnt ilntii .t^f"' ""-
Wlifreupon the delcndatit fimvs juiijjjnieitt
of the eonrf, whether the plaintiff ought (»
uiaintinn ilua action.
The plairjtitf demmTed genially to thii
plea.
The defendant joined in d^ntirrer.
Tlie question* arc two, 1, Whether the de*
ff^ndimt ouy^ht in have pleaderl this pardon and
dispensaticm to the indictment^ or whether he
may not plend it in bar to thci action?
f . Admititni^ he may plead it to the actioOi
whether it be a i^ood bar, and whether the kin£f
hy his prerogative rrmy dispcuse with the
statute.
that county where he -
months next after h\^
thesai-f -^-'f'^.'^ ---i i'
thes*?v
ant] si ,
I de?:ire* Thounb \ <i
(Hi my time) ni yx i
be wflUnij «' i'har-
yed lUf kin^ : \y . " '' '
if all letters u
rrli-,.i,- in 1^,, ,..^.:,,.
Tills
:jscTor
: with in a juihfuai pluce ; and it
I a iftw : wiitcb I may suy to
Uiough to OoUody elM}, at this tinie^ as
*odd now |ff)e*.*' See liie Siian Lcilern of
y eft/i of i^iiireiulot), piihli^hcd in 17(33,
ibe orij^nj^U iu tiie po>i.L:^ion of Mr*
imMiy.
Tft'* Art. 'ir* Car. {2. can* 2. Is as folTowiS!
y hoD-
pt^ 1^ the
Be it
,. shall
Aiiy <"*rUcc, ciVil iiv uuitury, ^^tc. or
have rommntid or ptaee **r'trtiit from
und»T hi^ f
Rngtatid,
ctnjrt of injihceu, tn oi ir.e tving s
f or at the court of quarter- lesttona ia
>me Lord's day luiinecitutely atier iii^'in^
*' Aiid ercry the person ttforrsaid^ that doth or
n\\r\}\ ne^rlert orrefu'rt? tn take the stiH oiiths
ul cOurtH, ; •
J I pablc, and disaMed in law lu ujl itj-
t^ \ I'pose^ \dtatsoever, to hare, occupy
or f'njoyj ihe 9&id office or empIo3'me.nt, and
erery such office and place shall ne roid^ and is
hereby adjn ! - ' " ».
" And ev that shall neglect or re-
ftiw Ui tak*
'h. .,, t»>^
S'irri frn-*Tlt Jk^
afin csaiif, ?
itsaJj
»h;ili i-iH^.
........ -i
tiiO
? jtpire<l, \
lour, and !►
confuted i
ipon awv t
of the kin
jr's cotltln ■
ixsKixerif cvt
1- 1
forfeit ^UO/,
to be recov
.1
sue fur tb<f
«ftme
« And at the «am** time when th
e persona eoa«
a^^inriM ni«
!>' "Itl t>l 1
Ml Tlll»rf«:i
the sanae pc*uft(tiet us i
4Q
>oioted«**
ii»r|
« JAMES II.
Trial of Sir Edward Hdet,
[1168
Mr. "Northiv^ who ai^ued for the plaintiff,
held that the defendant may not be permitted to
plead this matter in bar of the action, because
be ou^ht to have pleaded it to the imlictmeut ;
and he having nut pleaded it then, the law will
construe it tolie waving of it, as the case in
Brook's Abridgment, Charter of Pardon, 15.
That in case ot an indictment for murder, one
that has pleaded not guilty, cannot plead the
pardon after, unless dated since this pica of not
guilty. So S Crooke in a Fieri Facias^ if the
defendant ap|>ear8, and has a release, and dues
not plead it, be has lost the benefit of it, and
shall not be released by Audita Querela : now
the defendant shall not be permitted to plead it
against the plaintiff, no more than he could
have pleaded it against the king ; for this ac-
tion is in the nature of an execution upon a
judgment, and may be likened to this case;
an administrator de bonis item, by 17 Car. 2. is
enabled to sue forth an execution upon a judg-
ment, reeovered by an executor of the fi^rst
testator, and the statute doth put the adminis-
trator in the same case as the executor h aa;
and the defendant in that ease can alledge no
other matter against the administrator, than be
could have done against the executor, neither
can he avoid this execution by any plea that he
might have pleaded to the nrst 'action. And
if this defendant shall be received to plead this
plea now, he will falsify the indictment, that
was found against him ; for if the oflence lie
pardoned, he ought not to have been indicted :
out admit this defendant may well plead this
plea, yet I hold it no bar to the plaintitPs action.
I do allow tbat the king may dispense with
several penal laws in some cases, but that pre-
rogative of the king is bounded, so that with
tome statutes he cannot dispense, wherem the
subject LB interested, as in 4 Instit. (135.) So
the king cannot licence a man to make a nui-
sance or commit a murder, as 11 Henry 7.
11, 12. And that this is an act wherein all the
subjects have an interest, I humbly submit to
thejudgment of the court.
The king cannot dispense with the statute
91 of £liz. chap. 6. against simony, nor with
the statute 17 Kdw. 6, 1. against buying and
selling of offices, as appears by the 1 lostit.
12*. a. 3 Instit. 154. 2 Crooke, 385. Hobait
* Mr. Hargrave in his Annotation upon this
passage of Co. Lit. has the following very im-
portant remarks :
*< When the famous case of sir Edward
Hales in the reign of Jamc^ 2d was ar-
gued, these two cases [The kinff against the
bibhop of Norwich, and sir Arthur Ingram's
case] were urged to prove, that the king could
not dispense ^ith the disability for not taking
the oaths and sacrament according to the 25
Cha. 'i^ usually called the test act ; and lord
Coke himsflf in his Third Institute applies
them to a like case on the 5 £liz. in respect to
the oath of supremacy. 3 Inst 154. The
principal judicial authority relied on for the
di^ptosatiou was the case in the year-book of
75. 1 Instit. 334. a. A man thmt is disabled by
law to take such an office, the king canimt ct-
pacitate him : as if the king should grant to
2 H. 7. G, h. in which, notwitbstimdiopf ths
statutes making void a grant of the cmix of
sheriff for more than a year, the judges ait
represented to have held a grant for lite witbi
non obitante to be good. But trusting to nch
an authority only exposed the weakneu of Iht
cause it was intended to sustain. The book
cited, so far from containing any judgment «f
the point, ends with an adjoumment of lbs
case, accompanied with this remarkable deck*
ration, that both judges and counsel sgred,
what they had then said should be taken for
nothing. As far too as perhaps, the grant ii
question might have been adjudged good on lbs
ground of being within an exceptioo of tbe
statutes. The kiu^ also had been spedhllr
enabled by the 9 if. 5, c. 5, to dispense wilk
the statutes for four years on account of tbs
wars and a pestilence. But, lastly and ptin-
cipalty, it was an insuperable objection to tbe
authority of this case, that the 23 H. 6, to vs-
move all doubts, provides, that the king's gnsC
for more than a year should be Toid, DOtwitb*
standing any non obitante. What respect
could be due to a judicial opinion, derkriog i
dispensation good, which the Jegislatorif itsetf
had positively enacted should be Toid ? Yet it
is not to be concealed, that in the report of
Calvin's case, lord Coke justifies the king^
dispensation in this instance on the principle
of Its being beyond the power of paHiaoifent to
take away his right to the service of his sub-
jects. Calvin's case, 7 Co. 15. ThisstraDfce
language is the more unaccountable, as itii
inconsistent with his own doctrine here, and
in the case on the statute against tlie sale of
offices."
And in observing upon lord Coke's positioB
in the same page, ** that when any thing b pro*
hihited siih modo as upon a penalty given to the
king, a party may be dispensed withal by t
grant, &c. with a non ohstantCy*^ that very learn-
ed annntator enters more deeply into the subject
of the king's dispensing power as follows :
«' By the Bill of Rights, 1 W. & M. it wtf
declared, that from the then session of parlia-
ment, no dis|>ensation with any statute slioaM
be valid, unless such statute allows it, and ex-
cept in such cases as should be specially pro*
vided for the then session. 1 \V. and M.
sess. 2. c. 2. s. 12. The occasion of this ex-
cellent provision was the equally extravagant
and unwarrantable exercise of tfie dispensing
power by James the second, who, having pro-
cured the sanction of a judicial opinion to a
disi)ensation with the test act in favour of sir
Edward Hales, madly proceeded to a suspes-
sion of the principal laws for the support of.
the established religion ; an excess, in wbicb,
monstrous as it was, several of the judges, is
the great scandal of Westmioster-bsll, ssts
him coanteuance, tbe priests of the tempM flf
1 189] Jhr ni^ecting to take the Oatha. A. D, 1686. [1 190
of Thotniifl and Sorrel, there are several casei
put, wherein the kiug ciuiuot diitpeuiH? with ik
one tf> fwll an nflSce, within the statute Eilw. 6,
untl to anothL'r to buy ihiit office^ th^st* j^ants
ivouhl Im? voiii, as iti Vaugtmxi 534, in the case
jastioL- treaclierously awJiiig ttt pollute it^ in
8te4ftd of tuaiifblly nppfmiiii^' the ts^acnlege. Till
the ttiriL* oi this jirintrtf i he doctrine ol" ilispea-
Aftttou was receiTeiJ m iiti %crv Uii[tt>rt5tnt quii-
Uiicat)4^of«, t>rwhich \\w prinelpnl wcn-e ihese —
1. ft wavsiiid, that the km^rciMifd nnt itis|i(*ase
with the vtnt\mi.m law ; ihouj^h h>rvl cliiel jus*
tice Vutighaii Sfem^ to duriy tliiti pfiMiicMi,
IHf . T5. ii iusL 154. Vau^h. 334.-2. It
«j»pfars to have been generuUy agreed, that
lue kin^ fniilil nut t|is|ietisc witli a statute,
vbich prohihiteil what was maftir« in se. — :n
Alalum prohibitum was nut ifeenitd univer^
caHy diitpenmb^e with ; for some hdtl, tlie
kiii^ ciiiihrnfit drsttetiEve with a ^tatule, if the
pruhiiiitioti w aij absolute, anil Hot aub moda^ ajj
under a i^enuhy to thi kiuj;', or, as others ex«
press it, wheie the htaiute was ?M»de lor the
l^eneral trooil, and not with a view uierely to
tile k info's profit or i!it4re!5t. — A, None e^n-
Icndeil, that the royal dispt-n^aiioii could di-
minish or prejiidiee the prtiperty, or private
ri|fbt of tUe siubject,— 6. ll was imderst'iod,
tlmt the kin^f cuidd dijcpeu^e, not gene-
r&lly, but tmly in favour otpulieubr [»enfonB»
and, accordifi;^^ to gorue, for these only in par-
ticular io«)tuuc'e^« — But aam^ of thefts di!itiuc>
lions had i^freat noeeitainty ami subtlety in
I Uiem, and were so open to controwisy, iliut
I tl»ey only tended to create etnf»urr««sineiil ;
[ and though the others greatly restricted the
largeness of the claimeil pi-eroisitive, yet they
iw^ero far from ohviathij^ the chief ohje<*tioti to
%o form i d able a ji ret en sion , H ad t ^ ic hou n r lary
of the di-spensinjj po«er been ever so clearly
marked^ still it wae^ wise and pmdeat <o anoi*
hil»te it. So tar as it reaembted the power of
repealing' laws, it was an intolerable corruption,
wnolly irreeoncil cable with the tusi principle
^our con Kti tut ion, hy which the power of le-
^slation cannot be exercised hy the king, with-
out tho two houses of parttanreot. Wk) far as
it did not fall vvithui tliis idea^ it was uonecea-
•ary : tor those «cts, which were the fruitii of
it, iiiiefbt have derircd their force from other
aeknowl«d^ed powers of the croMii, «uch as
the right of waiving nenaltlea and forfeitures
Mong^ng to itself, anci the perogative of par-
doning,— It is worthy of notice, thai the dicla-
ration of rights, which the lords and coinnioiis
made on tendering the ct own to WtUiuni nod
MarVi distinguishes bet ween suspending laws
by rt^al authority, and disp'^using with them.
'I he tormer, ibeiug a general and au&ohitc ftbro-
g^ation for a time, is condemned without any
exception ; but the latter, being only a Kjiecial
exemption of certain individtials, is merely de-
clared illegal, as it bad Wen exercised of late.
Also the Bill of Rights, though it declares
againsit the fnture exercise of a dispensing
power in any cuiC, except where the king is
specially authorised by act of parhameut, yet
coataiujsa prctvifto baring from pr^udice all
statute.
prior charters, gmnts, and pardonit. 1 W. and!
M.itess 2. ch. 2. sec. VI. S. 15. If the con-
demnation of the dtspensjing power fur the litre'
past hhd l>eeu unc^ualified, it might hare de-
atroyeil tht: titles iinder numberless subsistinj^*
grants Irom the crown, the validity Ai^ which
it was deemed most equitable to leave to the
dec i si on of the courts oi justice in the ordinary'
way. — Such as wish to go more deeply into*
the controversy about the di«i>en8ing power,
may find the following refereooes useful. — li!
For the history i*f dispensations^ «ee Dav. 6^/
b IVyn. on 4 Inst. 12a to 133. Atkvns m
pfiwer of diii(>cns. with pen. stat^- — For the*
cases on the subject, Bee the case of the tner-*
chau^b of VVmerlord in '2 tt. 3. 11. I II. 7, S.*
ll ic sheriff *s case in 2 H. 7. G. b. the dficiriua*
in 11 El. 7. 11 b. 12. a. Grendon and the hi-'
shop of Lincoln, Plow d. 5U*i. case of the auU"
nager, Dy. 303. Calvin's case, 7 Co. 15. tbo*
prince's case, 8 Co. 29. b. case of ihe taylorg*
of Ipswich, 11 Co. 53, case of mouopolies, ibid^'
H J. frish <iase of commeudam, Dav. GS. case^
of customs, 152 Co. 18. the ease* cited ante*
note 3. Colt and Glover v, the bishop oP
Litchfield, or English case of oomfneiiaam,v|
Mo. 89H. 1 Roi. Hep. 151. Hob. 246. EvanaJ
and Kiffins v. Askwith, W. Jo. 158. Palm,;!
457. Latch 31. 233. Moy 03. 2 Rol. Rejp**
450, case of clerk of the court of wards, HoW^
314. Needier and the bishop of IV inchcster
Hob. 230, Lord Went worth *s case, ftlo, 713.*
case of dispeDsatioo with 3 Jam. 1 c, 5- againsif
a recusant^B holding an office, Haitlr. \10\
cases of ihspensation with statutes ngiuuht
tailing* wine without licence^ namely Younj_
and Wright, I Hid. 6. Thomas and' Waters,
liardr. 443. 2 Keb, Aib, Thomas and Boysjl
Hardr. 464. Thomas anil Sorrell, Vaugb, 330,^
1 Lev. 217. 1 Freem. 85. 115. 128, 137. ^[
Keh. 246* %m. 322. 372. 416. 790, 3 fceb.
7C. 119. 148. 155. 184. 223. '233. 264. sir Ed
ward Hale's case on the test act of ^5 Cba, 2,'
in 2 Show. 475. Comberb. !ii. 4 Ba<?/ il^r.^
179. and case of the seven bishops in the feit|»;ii'^
of Jam, 9. Of these cas/es, Thomas and Sor*'
fell, and sir Edward Hater's are the phncipaL^,
The former was argued with the greatest sowj
lemnity io the exchequer chamber, the ^hlii cry
of the opuiiou of the judgi-s, of whom the ma-
jority was tor the dispciisation, taking up %^
tlay iu four several t^rms. The lattt-r waM
treated with less form ; but gave occasion lo^"
some cfrtisiderablc pubhcaliotJH ou the subject |'
particularly lord chief justice Ilerbcit's ac- =
count of the uuthorities ou uhich the judg-I
nu'tit was given in sir Edward Unless case, '
Mr. Atwood's an«^wir to it, and a tmrt by hir<
chief baron Atkyns .'«g)MU!$t the kind's power ol
di$pcn!>iing with peiml statutes. In a luana-
script report of mi Edward Hnles's case, sir
Bartholomew bhower is mentioned to hava
rcphtd to lord chief b«ron Aikini. Bai ^*'
til
1101]
2 JAMES 11.
Trial of Sir Edviard HaUt,
[im
Now hj this ist^tule lUat wft arc upoa, it i§
ejiactftl, timt eiery otficcj sbiiU Uke ihe onliis, ej^liiiiile*! n-tiilu i Ijjm nn<»D
thai cV'-Ty person iKat cities ueg^lect^ sliall be
dibbled ta hii\fi liie said »djce ; now this at-t
dof8 r]«4 witrk upon ibv iukuij;i but ujjoq Ibe
butdtQ^ ; a&d i^ such coniiitions be not pei-
formttJ, he is thereby rcudcred uucapiible to
hold his ofBrc, 9Jiil the king* can never cjiabte
a man tirhoni the ia\« halb disabled, 3 lofilil.
154. Fdii i tbrciiee the ca^^ iii 12Ct>ke H',
viJl be object t
that no act l»i
lii^ |>fr*oii
t Die, VI here it is sa.id,
ii can bind the king
vincU is - ' "" ' iriBe-
e n»«iy
lifl ihe
b<^<>K tloif , upon
«1h' ^laf;,, . ..^ ..i..u:. :.:„,:. _.-i;t. timt
to be niude ot anv u^ce oJ
I in of yetiri, ^cc. within any
county ai Englaqd, ^c. ihall forteit 9CK>/. Ytt
says that Ixiok. the king nia^ dispense i^ith
that statiite^ and ciie» 'i Hen. 7, 66, lo he there
•o aJj^d^ed by all the Judges of England ;
and that this in the only autfionty ihat s<>eius
to countenance thit> ci$\i. But this is thv oj»i-
ntou only ot my lord Coke, for tlie hook which
he clXiiA and depends upwn was never adjuflgcd,
at «pt»ears by Itrook 5 pt. 45, 1U9 itud what
WQs t^iil in tUdt cas«, ^us only paid by one
JMdi^r, and n^ver judiqially det^rmiMLt), noreo
mmiii as spoken to by any olh^r judge ; thcr«-
foif- ilif. liiinirUtuMi that rny bril « - ' ►• Ik^s
enrtruclure iiiu !i,
. -,.. 'i I «n, that fcingiu .,.-,... HI
13 Coke, \0\ : law. But admitti|j{;
the Lir,e to \k ; 4 an be tio rule to ^uide
'Li statute was wade, rather
* f tiiR power of maktog
comnmnding' his
11 to disable the
.uiu:4^ the kingr^g
at iu him* liut
1 1 le prt r(>^aii ve of
1 1* the km IT may
' ■ . " ' > Tji
if
to «frv«t
aud fiHom ^1
h'tU'l to tttkt
Lt is throu^^h hi« own fault
,,.1, h.. ii-iM- huble for the
'Je^ide, in 27
' e IV lis niade
. i(> thi«
Ijy ra«js(i[) of whichf the otiac-e hecanie
ijch piere, J>Ir,
rs for and a({'aia»t
I written with an
,.- rrow4i*» prrro-
voiil, and afterwards there wmm an tefeiBttiaft
Ibi-,
iialule WW Uf
ol itie^Ueriai
Qow Upon, ^
and execuliii^^
couficted and iiii*'d. An><
opinion that no fubject rmi\
a capaciiy to fecrveil'
be is putii^habli: ^ anii
ihe dispensation !«( in iht patent, bill ai Oit
c^ise the di!»(^ti«atio(i is after ihf ^tcoit, an4 il
a dilTereiice bettveen the iwo oiiM : Mid tor
these rensonSf t [>ray your lor<)»hip^i judgiaeBl
for the plamtiC
ArpimcnUfor ihi Defendant
Sir Thtnmti >Wyi,* the king*! 90I1
argued tor the delciiidiuit.
As to the tirst pointf that saDpo«tag^
feu I fan I ought to have pleaded tite di^
to the iiidicttnent, it does not appear bif itk
record, but that he did ; for Uic dt^clamtHNl ifl,
that he wsut kgitimo wtoda :xnd 4m
not r\y wliether he pleaded .y, mbm
li and for any thing Uiai appeaiii ka
ii; against the kiug, yet he maybe
adnuLL^d Hi plead it against the plaotilf nh» m
a stmnger.
If they Maad iipQa this as an ^ \ tbff
ought to have rehed upon it, an M
he had the di$pensatii9n at the thne vi mc ia*
dictwentf ajul rel^used to plead it ; for ha tkH
• '* Mr. Jones, son to the Chi^f Jusim iatiif
turm>d out, told rue that sir liuhert H^Mrytfi
the Attorney Oeoeral, had bcieii directiMi hv ibi
king, to draM^ up a warrant, by virtut aV fiii
prerogatire^ to invest a pnest at the Cburak d
Rotne with a henetice, and to eooftria am
Walkfr, head of a he z^a
fellows of the sauie, V. lerlial^J
papal coinmtHiioo, by a Ntm OMaute ;
attorney said Uiis would not he
statute only, but ^aii I V Is
days of KlLzabelh ; 1 1
do it^ and d» ' ' king lu w.
a little with , tor Uiat »
very root of mic * *i*u slant (-buu u, i
trary to hi$ inajettty'is late grawui ppenmti
in ^i<'rt ^!;at the attorney larther aaid, bi
4> > but aa wmm anutlirr ccuikl b
tij 1 ^ tlie work, lie abattki U»aa hta j
such a Slave was the kitig to tha priaall
Rome.
^* But whatever iba aittora^y at |
pected, the •tolsntor Fitich Wit m
out, onel\r ^laad* vh««tf|
ready and \ < otliM^t
which waSt tu diuw s ui f^r 1
iii^f ot Walker, in hih cad oTIJa
amg powt :
^f'ait to . .,, .... ,,: ^
Farh Uifd. 3i}ti. ^cs^. ;}^i,*'
fianiaa waiie l^a|lifll» i
id tacuiBp'
uiBpble, at ii va
ottit an ia ll» «
tolhflirMML''
11155]
t JAMES II.
Trial of Sir Edward Haiti,
l\m]
i« that ru the nmttcr in bautl F Vor tbere is no
reslrifiton of ihc •ubjecls srrvici?, but Uic kinyr
)uuy have the benefit iiotwithst;iiiiiling. Th4*ii
ua to the statute 5 Ed. 6. 10. a^aiit^t bujiu^
nntl i^elhti^ of judicial offices^ of ivhich statute
there is a ckui^e in the 1st Insititut. 134. that
the kin^- may not thspense with that ntntute.
There is a diderence bletneeu thai uiatute and
this ; I'lir thai doetj etMct that if any peraoD
fthaU bargain and sdl nny otiiee, iSec. ^hall tbse
the oifii'e^ ckc. uud all such bargains and con-
tracts shall be T Old ; and that he that »haU
give any aurn of money, ike. for anv auch of*
Sce^ &CC. shall be a dibbled perkoo m law, to
hare, occupy, or «njoy the saidodice, 5rc.
Now the statute (hiiii disable the party upon
doinz such an act^ to take the oihce ; for the
makiug the bargain is prior to takiogf the of-
£oe, aod therfby he is disabled to take it, so
that lie can never have the oitice legally ve:»lrd
to him, if the kin^ cannot dispetise with a
coodiiional subsequent, and so that tloes not
come near tliis. And lor this reason 1 humbly
prayjndj^nient for tbo defendant.
Then the Lord Chief Justice Herbert^ spake
thus:
Chief Jmtkt. This is a case of great conse*
* " There was a new chief justice found out,
Tery different indeed from JcflVries, sir Edward
Herbert. He was a well bred and a lirtuuas
man, generous, and good natnred. He was
hut an indiflerenl lawyer ; and had gone to
Ireland to tiud practice and pretii^rmi^nt tbere.
He unliappily ^ot into a set of very high hq-
tioas wiUi relation to the king^s prerogative.
His gravity and virtues gave him great ad-
vantages, chledy Itis succeeding such a mon-
ster as hud gone before him. bo he, being
found lu 1)^ a lii tool, lAas, without any appli-
cation oi hii§ own, raised up a(l at once to this
high post. Aficr the coachman^s cause hud
been argued with a tuo^t indecetii coldness, by
thosic who were made use of ou design to ex-
pose and betray it, it was said, in favour of the
firerugalive, that the gofernroent of England
was entirely in the kiug : That the crown was
ttn imperial crown, the importance of wliich
wiA, that it WDs ahtiolutc! AU penal laws were
powers totlged tn the crown to enable the king
to force the execution of the law, ttiit were not
bars to liiuii or bind up the king's |jower: The
lung coidd pardon all oflV^iici-s again^ thi* law,
and fori^ive the (lenalUes: And wtiy could not
he as well dispeiibc with them t Acts of par-
liament had been oflt superseded ; The judy;*-*
had some times given directiorts in their
charges at < ircmls to euqtMre after some acts
of (>arltament no more t l)f which out. late in-
stance happened dunn^ the former reign; An
act pasee<l coucenjiog the kise of c^iris and
waggons, with many ptoahi^'K \i{HiU the (ran!»-
gresvors: And yet, when a Appeared timt the
iTiodel pro6cribini in the act wa^ not pmctica-
hie, the judges gave dircckion uot tu eiecule
the Act/' 15ilrti«|.
*juenee, but of as liulc ihffkult}' as ever iioj
case was, th»t raided so great »m 4^^»r>rtaUou : ,
for if the kmg cannot dinpeirse \n i umu |
he cannot di«[H'u8e wirh any j> In
soever.
As to the tirst poitit, wbctlter lit! shall bead*
nlsi
(ttt)
the ttntliof I
. tliin * tint I
milted to plead thU
to ihiti action of debt :
the indictment) 1 tiiu... >.. .w
court shall not be bound by
of the jury below, lor he(i<^i' :iii
does appear) did plead it i
might have gone againnt r
court, yet that shad not cMJuuiude us
if the party has good matter to t\mtz\
himself, be may shew it : as ii a tiiau
victed of an assault and battery against
(endani, the pkintift' may give the fomu
viction in evidence, but yet he inusl also
the battery, or else het^liail not recover,
Andthid bemoan e^U>|lel, itshall not bind, be*
cause the plaintiH was not party to tlie tinstsuil.
As to the st^i!ond point, whether the king cm
dispense with the actor no^ 1 thmk it aqi
of litile diflicuity» There is no law wbau
but muy he dispensed with by the au^
kw-gtvcr ; as the lawii of God may be dii<
pensed with by Gml himself ; as it ap^nmift Irjr
iiod's command to Abrahatti, to ofl'rr up luf
son Isaacs ^H> likewise the law ot luaii mty
he dispensed with by the legislator, tor a Isir
may either he too wide or too narrow, uul
there may be many cat»trs vi hich may be out of
the con\eniencif s \s hich did induce the law to
be tnude ; lor it iss in>possihle tor the \^ ■-'
maker to foresee ail the cases th*^
or are to be remediiMl, and there I m u i
be a power somevi hcrt\ able to v^ itti
these latts. Uut as to the r fluit
is olijcctcd by the other i>ii!> l tbu
law of God, and a special oL^.*v (ore
malum tn *r, which 1 do agree t uaiil
dispeniie with. And a* to the l^_ .. -: ii^ury
and non- residence, tho«j cases d^f com* m
under that rule, that the king CHunot dttfptmik
with them, becaujie tlie subject has a bcodTit by
them : for in <^tise of ubury the bf mil is nuuil
kvtt^
void by the statute, and t !
should di^}»en!>4; with it, lii
the benefit of the avoiding l1j«
to the cases ol huyi^i^ -Aiid i»el.
which are ohjecleil, there a
ing, whether the kiufj; coul
statute or no, b
to lake any suv :
the diaahihty Hab ^slilki u ^v >
oliicc was veiitetl, no that iht^
remove the disubihty ; - "' -" '
It would have been ui I M'eJiBodiliil
had by his ii* iirr m
rendcied hi'
the Litii;-'5 J: , . ,, : i . , ■
s i;^ belorc th« di*ahi***y i
The ca>.e of the sheriff is mr o|
case than this, and comes op i ^*^«
^rucular, fur thitt statiile dMlh tiu^iUk f&T
^» -Cl
1 197] Jor neglecting to take ike Oaths.
party to take, antl tlie kini^ tri grant; tli4
there i* hhn a cljuise m ihul Ktalute^ winch
»ay«, that the (>aient thall he vou\^ notwitti-
ibfiitig any N on Oh^tante to the contrary ; and
is a penalty of 'iOO/. like to our case:
yet liy the opinion of all the juilg^es of
Eni^iiml, the king has a powrr of difspenfing
wilhlhat statute; yet that statute rioes ex-
My, the king shall not di^ipense with it
ID Ohntante : so if an act of parliament
Jiad a clause jn it that it should never Ije re-
ftealed, yet without question, the same power
that made it, may ref»eal it. Besides, that
italiite makes the patenU^ void at the time of
l^nting- thr^m ; but by thij» statute the patenta
Bf« jfood at the lime of grantinsf them, and
continue nt Uijl the neglect to take tlie oaths,
f(*i: dmiir of which the putentee h«s three
mofitha ttme. And if the ease of the shert IT
1)o law, as it hath been taken ef er Kince Hen,
?tti^« time, and t« cited for ^mtl law in
Itmny of our books, and never 'till now ques-
-tioiied ; for the common cou4'fie and expe-
rience have hc?en accurdinir to it : tlien 1 defy
lafl the >varld to shew me any material dtt-
ICC lictwcen that and this, only' that this
^ le stronger case of the two, in mtuiy par-
tieiilarx, Hut because the caM< has been de-
nied by the plaintiff's counsel, it does concern
us to tak«; the opinion ol our brethren, it being'
m matter of so great conscnyence in the cir-
caits ; for if it he not law, then there are tome
abcriffti that be not lawful, and so have not
to return the juries, and then we have
wcr to try and g'ive judguient upon any
Vrtf ; and ^t als^o coucerus iis who va into
mtries, to take advice of it : for if that
ia i>ot law, our pateutii, which are Non
\U:*H to ^3 }fcn. 8. 2A>, may not be
and so we have no aiithoritiea to go tlie
; and therefore I m ill a^k the opiuiou
the judges, as well in thatca^ a^ this.*
On Monday the ^Istof June, after hafinf^
f^nnislted wiili all the judges, his lordship de-
Jivertfd their opinions in open court, thus :
• In the case of Godwin and Hales, wherein
' tlltt dcHnidant pleads a dispensation from the
it is doubted, whether or no the kioif
auch a prerogative? Truly, u[ioti the
It before us, it appeared as clear a
€vcr vi*mL* before thi^i court : tiut be-
Ti f:»ncy I know not what difficulty,
when really thfre is non*', we were vvrllinij;"
to ifVrc- ^o niiirh countenance to the f|uestion
b ( s to take the advice of all tlie
P^nitL :^tand. They were all as«=embled
■ ftt Keijrant'!i-[nn, and thi* erse was put to
■ them ; :ind the tTr-nt rn«f» nf tin* sherimi was
ri in that case
^t depoiided the
tjtriuiinii ui uU liiL' lau ul ihcualKm: and 1
liiu«t tell you* that there were (en upon the
A. D. 1686.
[119S
' place, that clearly delivered their Qpinioos,
* That the case of the sheriffs wan jpood law ;
* and that all the att^iindiTs grounded upon
* indictments found by juries i^urneil by such
* sheriffs, were good, and not erroneous ; aud
* consequently that men ncetl uoi have any
* fears or sttiuples about thut nnitter. And in
* the next place, they did clcjirly declare, that
*" there was no imaj^inahle diflWrence betweeti
* that caf^ and this ; unless it were^ that thia
* were the much clearer case of the tW0| and
* liable to the fewer exceptions.
* My brother Powel saul. he was inclined to
* he ot the same o|>iniun ; but he would rather
' hare some more time to consider ol it : but
* he has since sent by my brother HoUoway.
* to let us know, that he dues concur with us,
* To thi^se eleven judges, there isonediii^nler,
* brother 8treci*, who yel continues his opi-
* nion, That the kioir canma dts|iem»e in Ibis
* case: but that's tLe opinion of one sint^He
'judge, af(^ainst the opinion of eleven, \Xe
^ were suli&fied in our judgements before, and
* havh^g the c*oncurrence ol' eleven out of
* twelve, we tliiuk we may very well dei*lartt
' the opinion of the court to be, that the king
* may dispense in this case : and the judy;ei go
■ upon these grounds ;
" See Cortilierbach*f> Ucptirix, (>. 21, ctBc<j»
^btrr this ("ase ■■ larL'^ely reported, it is aUo
ftpmiml^ afcihoYicr, i7o[
* ** October 9, 1686. illr. Justice Street hath
lately married a wile with a good fortune, hineo
his opinion against the king's power of dis-
pensing.*' NarcissiLs Luttreirs MS, " Brief
Historical Relations, Sec.**
" December 2r, 1636. Thursday, io the
morning, I went to Hu James's with Judge
Street J to present him to the tiriuce ; but I was
told the prince wa« busy, and I could not get
admittance. ^\ hile i was in the out wind room,
my lord Coote came to me, and told me» he
was sorry to see me patronise Street. 1 told
his lordship, I bad long known the judge, and
that 1 took hiro to be a very honest man. My
lord answere<l to this effect — I know, he did
not join in the judgment for the dispensing
power : he has married my reUtion ; but he iii
a very dl man. 1 have ♦iiven the prince a true
character of him ; and therefore I desire, your
lordship will not concern yourself any more for
him. [ told tuy lord Co«ite, ibat 1 knew na
business the jtidge had with the prince, but t9
kiss his hand^ as others did ; that I had no re*
quest to make tor htm ; and that I would not
fire^ient any one to the prince to be aftVonted*
December 28. In the morning Judge Street
t*ame to me ogain i t had appointed! him so lu
ilo yesterday, Itefore the conference with my
Ion! C<Mite/ I told him, 1 liniud the priuce
Inid ill jinpres^iocis of him, and tlicreforc I ad-
vised him to defer uaiting on hin» for come
time, for my pr»*sentii>£f him would do bim no
service," 1» h^arl of Clarendon,
In Show 1 1 Case, it is stated,
that th( ' 1 1 cd that he and all
ihcJudL 1 Powell, J U!»tices,
who dnuaeuj wt rr i^-i «>^M[M>in, that the klUgS uf
England wtsic nhsulutu %^vti;«iiguV^ ^<2>
1199]:
2 JAMES II.
Trid of Sir Edufard Halet^
[1300
* J. That tl^e kin^ of' EngldoA tre sot€-
« rei^^n princM.
< 8. That the laws of Engknd are the king's
< faiws.
* 5. That therefore 'tis an inseparaMe pre-
' roffatiTe in the kings of England, to dispense
« with penal laws in partienlar cases, and apen
* particniar necessary reasnnsv
< 4. That of those reasons and those neces-
« sities, the king himself is sole judg^ : and
* then, which is consequent npon all,
< 6. That this is not a trust inTOfsfled in, or
< granted to the king by the |>eople, bnt the an-
« cient remains of the sovereigfn power and
' prerogative of the kings of England ; which
* nerer vet was taken from them, nor can be.
< And therefore such a dispensation appearing
^ upon record to come time enough tonaTe him
^ from the forfriture, judgment ought to be
« given for the defendant*,
'^ Quod quprens nil capiat per billam."
* Bishop Burnet, in his History of his Own
Times, vol. 1, p. 650, says : " SirEdw. Hales,
a gentlj^man of a nobfe family in Kent, de-
clared himself a Papist, though he had long
dtsgnised it ; and had once to myself so so-
lemnly denied it, that I was led from thence to
see, there was no credit to be given to that sort
of men, where their church or religion was
concerned. He had an employment, uud not
taking the test, his coachman was- set up to
inform against him, and to claim the 500/. that
the law gave to the informer: when this was
to be brought to trial', the judges were secretly
asked their opinions; and such as were not
dear to judge as tlie court did <lirect, were
tnrned out; and upon two or three cnnvassings,
the half of them were dismissed, uiitl others of
more pliable and obedient understandings, were
put in their places: some of these wore wenk
and ignorant to a scandal. Tbe suit went on
in a feeble prosecution, and in I'linity-Term
jadgment was given."
And in page 671, tbe Bishop sa^s, << But
judges, who are before- hand determined bow
to give their opinions, will not Ite much muicd,
oven by the strongest arguments. The hidi-
crous ones used on this occasion at tbe bar,
were rather a farce, fitter for a mock trial in a
play, tban such as became men of learning in
so important a matter : great expectatiuiis wore
raisetl, to hear with what arguments the juJi^-l'S
would maintain the judgment that tliey should
gjve; but they maile nothing of it; and wUm-
out any argumg gave judgment for the de-
fendant, as if it had been in a cause of cuirse.^'
See also, Echard, 1077. 2 Rapin, (fol.) 7;')5.
1 Oldinixon, 709. 1 Ralph, 9v!\2, 0'3:S : and
8 Hume 244, (ed. of 1807) as refern^d to
by Mr. Margrave in the passage cited, p.
1191.
The following particulars resfiecting this
Case occm* in Narcissus Luttrell's MS. * Brief
Historical Relation,' &c. io the Library of All
Souls* College, Oiford :
Thi» Jndgmiint iwtnrally «fdlM mMb ni*
madversion. Sir Robert Atk jot pvlfisbe^ (wt
p. 1190) the following
ENaUIRY INTO THE POWER or D18.
PEN81MG wmi PENAL STATUTES.
Tab Order I shall observe in sjpeakingtofls
ise, as to the pomt upon tbe dispensBlkm, M
be this:
First, 1 shall open thin act of 35 Car. % nl
shew the great occasiOQ and necessity fortk
making ufit : the scope and desiorn of it; tbe
excellent remedy it <hiee prescribe ; and the
great benefit and security that might arise ti
Uie nation from it, were it dnly observed.
Secondly, 1 shall then discourse brieify ef lie
nature of law in general, as fkr only as mtj
be useful and pertinent to omr present case, asd
of the great force and authority that a bir
ought to have, and of the ^;reat venerotioD ifcil
should be paid to it, especially if ttte true Re-
gion, and tbe honour of Aliuiehty God, the
safety of the government, and tte public good
and peace of the nation depend upon it, as tbfy
all do npon this act of 35 Car. 9.
Thirdly, In the next place, I shall gift a
« June 16, 1686. Came on in the KiwV
Bench Court, the Great Case between GoAa
and sir Edward Hales, in an aetion of dielil
upon the Test Act, mode «5 Car. 8, c. «, kt
500/. for not taking the Sacrament and d»
Oaths according to that AcT, within thetiat
limited, having executed an office: the pWatf
is only the dt&ndant's servant, and the aeliM
brought barely to have the opinion of ib^
judges ; there were two or three motions to die
court, that tht^y would assign them counsel fir
the plaintiff, for no one would appear in sacb •
pretended matter. The court asftigiied Jfr.
^forthey and sir George Treby, tbe latter ab-
solutely refused it : at another time tliey is-
signed\Mr. Wallop: Mr. Triuder and sir Frjs.
Winnington wore added: it was this davap
gucd for the plaintiff b\ Mr. Northoy (but Very
loosely), and fiy the solicitor, sir Thomas Pbnis,
for the deieiulant, or rather for the king'*
|>ower of dis-|)ensing with all penal laws bj i
clause of Nou Obstante; and on the whole mat-
ter, the court were of opinion clear, that tbe
king mi<rht dis}>ensc with this la\r, howere^
thev wouhl advise with the rest of thejudgn.
"Aug. 16. The judges, since ihHr opinioA
of the kintr's dispensing |>ower, have not in
their circuits had tiiat respect as formerly.
'' Jan. 1690. Hir Kduard Hales and Mr-
Obadiah Walker cam*' to the court of King's-
Uencli by Hab<*us Corpus from ilie Tower, be-
ing rouimitted for hiali tirason, in l>eing re-
courdcnl to iiio Cli rc-h of Uomc. They 'vers
aiter some diiFicnliy admitted to their' lilieilj
upon very g<M)d hail.
*< J: n. 24. 5ir. Charles Hales, brother Io
sir Edwnni, came up by Habeas Corpus finoin
the ToMcr, an I was bailed by the Court tff
King's-Bencb."
ISOJ]
^licliitg to take tht Oaths*
A.D. leaib
[1201
account of ti»e ti*ue nwltire (a« tipar as I eiti)
liiitlnfilK Mii.riu^»1 II. ..I .r,,..MU i)i' ttie notion or
I, unti who were
^. f»aut what lime It
brgun^ i siiitil erMk^ivour lo shew llie right use
offl, (if thrrr be anv) aod where the j net
I'^ationsfhK'S re&iilp, as
I Imw that aceorfUoi^ to
LlUelutL: I isalions are cuti-
llrirj^an: Uu re and proper-
llie^ of l.i\v, thou;,^h thty jji-etco*! tliemsclvc s
llo be law, ihey hare a tlifTercnt original aoil
' '^^lAQU do indeetl subvert tuvv.
Tor the occasion Jind ' ne cecity for
' fthis net «>f|mrli«ime(it, and the scope
ra f>f it, and the ends Aimed at, they
li. li..^ f'rearaWe.
4iao^uishei thekiog^^s sub-
F It borne trom whom there nrc ^rratilanQfcrs.
r ^. Thoie who me the j»eisous suhject to
I - rs are from Popiih recusants ;
ihovt- v»ho iire Uire&teued hy those diingers^
the act t«mtsthem his majesty *& ^uo<l suhjeiH^.
It wouhl he needless to tell whjil those dan-
g'cinei are, and whence they arise,
Alt the times siiire the refonnation^ hire
ilmndaiiily dtfieovered wh^it the dangers are.
** fc have been a multitude of acl!> of par-
'rtit tiia^fe that have stiU been fencing^
■' Mirers, whieh do fiufficieDtly
|M ^ do the frequent and incea-
, .u every parliament for many
8, iiettjui« forth tlie daogers ; and all otir
and public wndngj, and especially
liotc written and published by his* now ma*
'» royal ^raudfatlier, king- James the first,
\n muUll tide more, but aoove uU^ the sad
ftt of thni;^, and what we all nee In come to
Uiesc disclose to all the world, what tbft
Lclongrrs were, and the ^eat need of a further
I remcdv.
Their deslmctive principles, and their des-
'i^ and practiceHf do ahutidantly
tiger from the ono sort, aud the
[_i*ajs o* I lie other gort of subjecti*.
I scope therefore, and the ^rent end that
'uiit parliament had, is to urevent the
* om the one, and to ([uiet tlie mtiid<< of
many former acts of parlifuiMzm
i had the same eiid and purpose proviu^^
DJedy proTidcd h Tcry suitable, and
ftt and most eifcctual that cither the
bm or t^itpi^me authority of the king and
(It coubl devise, and the very remedy
\ the danger.
nger would be at the hetght of it, if
roos principles and practices nliOidd
i at the power and r^nth^jjity, and ^'ain
lirir handi, (and it was growing apiice
lit)
iri^ ' ' - n- " r 1y (herefore pro-
at, islirst lo di?*-
rh», ». < i.jM,,, ..v.i^ant^; to offer a
nd tist to all taat ihould hi in any public
Irt^st and autborily, for it was suspected thai
there were many f^aplsts under the disguise of
l^roteslaiitji.
And in the next tdncc. so lo frnrP' an! _^n:iid
the power and ai
in the nation, thu
come into the hamk of tiie l-a.pi»t».
Persons enlrusteil with the power atwl au-
thority over the nation t had u<^d give a i$igimi
testimony of their loyally and fidt^Uty to lh«
kin;^ and i^ovLTiuiiciit, and of their true zeallbr
the religion established by law.
The test^ as to their loyalty, are the two oatlui
of Supremacy and AllegiaiTce, (and u either of
these aretnew teals. J
The test, as to religion, and the true woi'ship
of God, arc likewise two, the rcf^^ivingof tho
hlcj^sed sacrament, aud the !iul»scijliing a decla-
ration against the doctvineof traiisubstattaiion.
The l€m[>er and moderation ahewn hy hit
late majesty aud both Houses/ia this act of
parliamenl, deserves to lie observed : It ta not
tike the I^ges Draconis, written in blood ; this
is no sanguinary law. It d«ea not proceed
againMt them with fire and faggot.
Itdoei not disturb them in their estates and
iioMessions ; it does not deprive them of the
liberty of their persons. Nay, it does not hin-
der them from the exercise of their own reli«
gion (if it may be socaHed) (I speak as to our
present act of 26 Car, 2. only.)
It ktj* ihem live quietly in their habitations,
without so much as puttmg any oath or test
upon them, so long as they live phv.ate men*
It only requires, that if they will be entrusted
with power and authority, they should give
some just and reasonable security and assur-
ance, that they will be true io the religion aud
the govcrumeut established.
If they will be meddling with the power,
without giving such security, then at their
peril be it: The law pronounces them uuca-
pabfe, and disables), and infiirts penalties apon
such as shall presume to violate this law.
And it is worth the noting, how solicitous
aud intent the makers of this law were, that
tliis test and tryal might be taken and jier-
ftjrined with great solemnity, and that the law
might not he eluded lutli ^ny arts and tricks,
that DO cheat might Ive put upon it, AH *Ju%
(ib&w?, that the law*makcrfihad great expcota*
don from this law*
The oaths are to be taken in one of the two
highest courts of Westmirwter-nall ; the very
liotirs of the day are liiDtted when they must
be takotr, that is when the courts are usually
fullest; during the taking of them, all plcii
and pro cetjU tigs arc toccaiic.
There it the like care taken concerning the re-
ceikini; ffflhc s^ifrnment, and of the certify ing'
tul proof to be n i i^ d»^ of it, aii3
of it, aud pier
Sf
tt U t\'-i\
Itv
they ih
of tt» Aud the Uke for sub*
niton Bgaiiist the doctfine of
!ty« that after all these painty
.. ,..i Be ju«l nothing, aud that •#
high aa authorit\' i huuld bt made ridi^aWus.
4a
IJOS]
t JAMBS IL
Trial of Sir Edward HaUt^
[IfM
But after all tbiB wtcxxrm^ against tbe daogfer
from Popish recusants, how shall we do to
secure against the danger of dispensations ?
Suppose this act bad contained a clause in it,
declaring, that all dis])ensatioi)S and g[ranU,
with Non Obstantes to the contrary of this law,
should have been ipso facto void, and had in-
flicted penalties upon such persons as should
have procured theni, would this have made it
stronger?
No : several acts of parliament have been
made in divers cases, with express clauses in-
serted in those acts, to make void all Non Ob-
stantes to the contrary of those laws, (which
one would have thought would have bden strong
enough) and yet they all came to nothing:
for tlie judges heretofore have resolved, that if
the king grant a disneusation from such laws,
with a special Non Obstante to anv such special
Jaw, meuUoning the very law, tliat presently
the force of tliat law vanishes.
Therefore, beside the disabilities and incapa-
cities put upon thero, further to obviate ttiis
mischief also, and to frustrate all contrary
judgments, and to prevent the allowance of
any such grants and disjicnsations with this
act, by the opinion of the judges, or future re-
sohitioii of any court in Westminster- Hall to
the contrary, (as if the law-makers had fore-
seen this <langer too) and to give a rule to
judges in such cases, when any should happen
to come before tlicm.
There is this further provision made by this
law, that the granting or conferring of any
such office a!id ]dat:e is by express words
adjudged void. The words are. And is hereby
adjudged void.
It does not leave the courts l>elow to judge it,
but this law bcforrliaud jjives the very judjy-
ment It directs the way of trying- the matter
of fact by indictment, \'c. ami then declares the
judgment upon it, and K'uves it only to the
judges to apply that judgment to the particular
case.
May the judgment of any inferiour court
controul the judgment of the supreme courts.
Here is more than a threefold cord to tie it.
An oath, a sacrament, a declaration subscribed.
I look upon the two oaths as one cord. And
these two oaths arc so much alike, and to the
same (Ifeei, that Cavdinal iicllanniiic, pi:r-
porjjng to refute the oath of allegiance, \,y a
gross'mistake, bent all his for,:es against the
Oiith of supremacy, n;.t mindlnu the (iitfercnec.
As kin^r James the fii^t, in hit* answer to the
Cardinal, hath oUerved in the collection of his
majesty's works, fbl. 'i63.
'I'hc next cord is the sacrament. The third
Aul)scribing a declaration to remain on record to
all posterity.
And at last, a judtjiiient in the very point by
the king and parliament, (the supi-cmest court
of tin? nation) which must not be conlradicted
by any other court, nor by all the courts of the
nation put tojrether ; this supreme court exer-
cises its legislative and judicial power both at
•uce, and shall it all at last be lost labour ?
Secondly, having given an acooant of dui
particular law, upon which the present can
does arise, I shall in the next place briefly
speak concerning law in general, of what fbrct
and authority it ought to be, wfaieh will make
way for those argnments that I shall raiM
from it.
For when we know the tme natore of a law,
the nature and use of a dispensation will bi
better understood.
The name does oftentimes denote the natmt
of a thing.
The truest derivation is that of Xej i Ligmk^
firora its binding qualitj[ and the oUigatioo it
puts upon us ; and this is most pertinent to tkt
matter in hand.
The laws of England (as all just and righteooi
laws) are grounded or^inally upon the divint
law, as their foundation or fountain. Tbt
supreme and sovereign God among the heatbea
is supposed have to the name of Jupiter ' qoia
' Juris pater:' But more immediately humto
laws have their force and authoritj from tbs
consent and agreement of men.
All public regimen (says learned Hooker is
his Ecclesiastical Polity) of what kind soever,
seemeth evidently to have arisen ftom deli-
berate advice, consultation and composition be-
tween men. To live, says be, by one man^
will becomes the cause of all mens misoj ;
this constrained men to come to laws.
A people whom providence hath cast toge-
ther mto one island or country arc in effect ose
gnreat body politic, consisting of head ind
members, in imitation of the body natural, ai
is excellently set forth in the statute of appckb,
made %% 11. 8, c. 12, which stiles the kiof
the supreme head, and the people a body po-
litic, (thtsfc are the very words) compact of lU
§orts and degrees of men, divided into spiri-
tualty and temporalty. And this body ncrer
dies.
We ourselves of the present age, chose oor
common law, and consented to the most ao-
cient acts of parliament, for we WvcA in ouriD-
cestors 1,000 years ago, and those anoe^^
are still living in u&.
The law is the very soul that animates tbs
body politic, as learual Hooker describes ^X^
the parts of which body are set to work in siicb
actions as common good requires. The Iswf
are the very ligaments and sinews, that bind
together the head and members, without which
this bo<}y is but a rope of sand, or hke the feci
of Nebuchadnezzar's image, iron mixed with
clay, that can never cleave one to another, nor
cement.
And so properly laws have their name, i li*
f^aiido, in this respect too, viz. from knitting to-
gether, for as they bind by their authority, so
they unite in affection and strengthen.
And these laws are made by public agree-
ment, not imposed upon men against their
wills, but chosen by the prince and people:
They are (that I may express it in our familiir
and ordinary terms) the articles of agrcemeDl,
chosen and consented to by prinoc and psopk,
\m : :il I am now speak-
cl>. -
ug bound to obsei^te the paction tnatle
pie by liis Uwf,
bothiii^ can more Lively detcribe it than
imble ortbe 6tatat«t of '2ii Hen. 8, c. ^1,
tth« Lords and Coromona addressing
ves in their speech to ilm king, thus de-
e^lves : namely t
here this y*»ur (fracc*s realm r*—^' '^
superior* under Gtwl, bui «
bath been and is ticu Ifom i^ll^
D*ti hiwj«, but only to suih nJi '
Liaade&od iditaincd withiD tb
l^eaUh oi'tUe same, or U> such oiiter^ as
irance of your ^r«c*% and your pr»>'^'».'hi-
: people! oftlkiii )(>ur rcbltn, bav€ lakeii
hec libei-ty, by their own consent, to
\ amongst them, and have bound them*
,.' lon|f use aud cusinm to the ubH'rvanee
f vame, Dot as to the ob»ei taocc of tlie
^ toy foreign prince^ potentate, or ore-
'but ns to the ch kI tncient Ijiwi
U reolm originn!' i(.*d, ai laws of
fpie, by the said r:iinr r jtri', couseutji and
Wt^f and none oLhirwise/'
Bd the iiamc ground it is tlmt learned
Hrsayf, that tlie luwf'ui pont^n of making
{w command whole [voliUc si^rioticsuf meu^
igB to properly unto the untue entire bo-
tt, that for any prince or potentate of whnt
ftotver upoo «artli (I tn*c his very words
lo exercise the lanie of himsdf, and not
Hbv extiresa comrnmilun immediately and
Huy receivtMl from God^ or elie by autho-
Krived at first fron> tlieir coui**Mt, upon
B|ier»omt ihcy im[iuftc lawif, it i« no better
Befifi /tvnumv^. Kimr James tl^ First.
Cory of tfiSlSeof ; iS (TccTurei
hiinseU' mach of ta i with both
', and many others have trod aiuc^ in their
1 *il it Tery proper and sea-
soiiiL I judgment iu tnese matfceri
of an cnuntiitiiiviijc too, a person in all rc«pt*oia
without exception, and hi« judjjment is con-
cnjrring with alt the ancient authorn iti our pro*
feasion of tlic ronirnon 1aw« viho bein^ &q
learned and so ancient, are therefore the most
competent witnesses of our English couiftitu-
tion.
That ancient anthor of oars, whose hook it
, ^ 5 noted
uiiMs* llitsertiitioad bkiam/c* U>,seci, V*, 3.)
This autiiur^ 1. 1| c. 6| tclU U8| *■ Hupeilorem
* ncin habet rex in re^jo nisi Df urn et fegenu
* IVr legem factus est rex tempereot re|j€^ po-
^ tent in m suum p«r legem. Nun uuod priucl^
* placet legis habet potestatem. Non quicqmd
* de V(d nutate re^b KCit tfood ma^^natum auo*
» rum consilio regia aulhoritate pr(^tant<i ethar
* bif : »c delihcr^tione et tractatu r«ct«
'fji um.'
J 1^ a judge in the time of
kin:: iurd» but wrote his book in
the .<w. ! I em y the Second , stiles Uic
\i>\\B ol ' e ancient judgments of the
juht. A... ^...u, bishop of Hcretord, wlio
jinblifilted his book 5 Kdw. 1, by the command
ot tlukt kiofr, and as wriilcn in the king's name*
And wr Gilbert de Thornton, who was a chief
justice in Edw:in) the First ^a time, and reduced
tiiehook ^ nintoaco: And
sir John , another * e, and
alterwsrd* cUiiuti ilor in the tiiuc ul Ueurv the
Sixth, writ all to tU^ ^akooecfi^ct, md ^most
1207]
2 JAMES 11.
7'/ial nfSir Edward Hales,
[1«S
Uence it is, that Aristotle most significantly
and elegantly Fays, Tiiat the law is a wind
without affection ; that is, it binds all alike, and
dispenses with none, the greatest flies are no
more ahle to break through these cobwebs than
the smaller.
* imperatona majestas Icgibus armata est,'
says the introduction to the imperial law,
these are the surest arms and guard about a
prince.
Bald us, the great lawyer, says, * Digna vox
' est mnjcstate regnantis legibus alligatum
* priiicipein s<' profiteri.'
Sir Edward Coke, in his 2 Inst. fol. 27, ob-
serves, that the nobility of England have ever
had the laws of England in great reverence, as
their host birth -right, and so (says he) have the
kings of England, as their principal royalty
belonging to their crown.
lie there mentions our king Henry the First,
(the son of hiin that is stiled Conqueror.) lie
wrote to l\>i>e Paschal in this manner :
* ^Jotuni hiiheat sanr.titas vestraquo<l me vi-
' Tcnte (auxil^nte Deo) dignitates et usus
* regni nostri Anglia3 non imniinuentur. £t si
* ego (quod absit) in tanta me d< jectione pone-
* rem. Optimates mei et totus Anglioe populus
* id nullo nioilo paterctur.'
And fol. 98, tiiere is mention of the letters
which all the nobility of England, by assent of
the commonalty, in the time of Edward the
First, wrote V) Pope Boniface, viz. * Ad obscr-
* vationem ft dofcnsionem consuetiidinem et
* legum paternaruu ex debito prestiti Sacra-
* mcnti astringimur quie manutenebimus toto
* posse totisque viribus (cum Dei auxilio) de-
* fendemus.
* Nee etiam permittimus aut aliquatenus per-
* mittemus tim insolita indebita prejudicialia et
* alias in audita dominum nostrum regent
* (etiam si vellot) facere seu quomodo libet at-
* temptare :' Scaled with the several seals of
arms of 104 carls and barons.
And the noble kmg Edward the First took no
offence at the stout and resolute penning of this
letter : but wrote himself to the Pope to the
fcame effect.
And yet it contains in it a kind of a Non Ob-
stante to what the king should do by way of
submission and compliance with the Pope.
Nor is a just law any restraint to a just li-
beity, it rather frees us from a captivity and
servitude, viz. to that of our wills and passions.
It is true, this obligation and binding of the law
is very uneasy to such men as will be slaves to
their lusts and appetites.
They cry out, let us break those bonds asiin-
dt r, and cast away these cords from us; but to
such as are virtuous and just and pious, the
laws are a direction and protection.
The orator truly says, * Legum id circo
* onines serri sumus ut liberi esse possimus.'
The true English of which is, that such ser-
vice is perfect freedom. Hence our English
laws in Magna Charts are called liberties.
* Concessimus omnibus hominibus regni nostri
' has libertates subscriptas,' (says king Henry
the Third, in the first chapter of Magna
Charta), which sir Edward Coke cXfKNmds to
be meant of the laws of England ; * quia liberal
• iaciunt,' says he.
And though this statute of Magna Charli
run in the stile of a grant from the kmg, u
tlie word conceuimus, for the honour of the
king ; yet as he says, thej were the comoNB
laws and rights of the people before, and it
was made by the king, lords and common, at
is recited by the statute of 15 Ed. 3, c 1.
Thus it appears what the true nature and
properties of a just taw are ; of how ffreatfbne
and authority a law ought to be ; now dcir
and precious laws have been heretpfora to
iirince and people, and whence they have their
birth and original.
Thirtlly I come now to that notion or ioveo-
tion of a dispensation, the power of retoiuy
or dispensing with a law, ami enquire iato
the original and nature of it, and the grHil
mischief that hath arisen from it.
7'he pretence for the use or need of a poirer
of dispensing is this, viz. There is no pr»*
vidence or wisdom of man, nor of any council
of men, that can foresee and provide for all
events and variety of cases, that will or may
arise upon the making of anew law.
But a new laW may sit heavy upon some
particular persons, or in some extraordinaiy
case that may happen, let what care can be
taken in the penning of it.
It is enough to commend a law, if it be be-
neficial to the greater number, and be fur tbe
public good ; laws are fitted * ad ea qus fire-
' quentius accidunt,' and not for rare and ei-
traordinary events and accidents, as the Ro«
mans had no law against parricide.
And the law says, better is a mischief than
an inconvenience.
By a mischief is meant, when one man or
some few men suffer by the hardship of a law,
which law is yet useful for the public.
But an inconvenience is to have a public
law disobeyed or broken, or an offence to go
unpunished.
Now from this supposed and imaginary de-
fect of law, or some purtimlar mischief or hard-
ship sometimes (though very rarely) happen-
ing to some men, which hardship was nottore-
seen by the makers of the law, (although this
is ofteuer pretended and feigned tlian happening
in truth) occasion hath been taken to assert a
power in the prince or chief ruler, lo dispcnfe
with the law in extraordinary cases, and to
give ease or relaxation to the person that was
too hard bound or tied to a law ; for, as I ob-
served before, the law is of a binding and re-
straining nature and quality. It hath tbe sane
specious pretence as a law made SI H. 8, c. 8.
had, which was of most desperate and dan-
gerous consequence, had it not speedily been
rcjiealed by the statute of 1 E. 6, c. 19.
The title of that ntischievoun act of 31 H.
8. is this : ' An act that proclamatioM nnda
*■ by the king's highness, with the adfice of
* the honourable council,' (meant of the pnfj
^ shoulil encourage offenders to lUe dis-
r <tf ihe taws ot' Gud» and found too
I the great dishonour of the king*3 most
ijesty, (who may full ill iKsar it.)
iering aUo, that vudden occasions for-
'oy time* v ' ' ' ^ require speedy re-
bnd that t tor a parliament^
Rti time iii.L^.iv ijajipcn grtat preju
aueto the realm : und weighing that
»ty (which by tlie re^l power g-iTen
J iftHJ, may do many things in sucii
^ould not !« diiven to extenclthcbupre-
V Ilia rej^l power, by wilfulness of fro-
wects : It is therefore thoti£^ht neces-
■ttihe kiri'^^'s hiirhness of this realm for
PbheinfTT with the advice of his eoun-
lAuld m«ke iii-oclaiuatioDs for the ^ood
mil governance of this realm of Eng-
^i]c$, and other his dominions, from
timc^ for the defence of hia regnal
the case* of necessity shall re-
'.. :.. „„ ._ I .t,_* .i-..^^.g(|,^ kio^,
of hts coun-
iu, ^ .,,... ..,,*.i i,.,.s. ./^ (and all the
of state are mentioriLfl by the
ofBcos only) for the time bcm^,
i<aier num!jer of them, may set forth
lies by aulhorily of this act, hia pro-
1on<f, ttmlcr such penalties, and of such
} to his higUoei^ und hh council, or the
lart of them sihftU seem requisite. And
"le ^HfTie shall be obeyed, a* though they
i iiy »ct '.d' parfmmcnis, unWfiS the
r&b dispense with tLom under hia
at one blow^ is the whole te^islatife
kl intu the kin^'it hnnck, and lht?re was
no further we #f parliament had
nued,
itheire follows a claii»te, that would seem
and m(Mlerat<* this excess of power,
alioircthcr renmruatit and contra -
(to use the tonl Bacoa^s phrase) was honour*'
ably laid in its grate.
And God giant it may oerernae a^ia.
It is Tery probable, that this terrible law ^
drawn by king Henry the eighth's own hand']
by that eiprcss^ion in it, * thnt the iing- may^
♦lull ill boar the disobeying of his proolauja-'
* tions, and the dishonour done to him by it j*'
and by several other clansca. The history of
the Reformation, fol. 2G3, mentions tha
draught of a bill intended for an act of par-
liament, concernmg jj-iviri*j the king* power of
erecting many new hi nhop ricks, by ht$ lertera
patents ; upon which the ajttior of ibnt history
says, that the preamble, uod material parts of
it^ were drawn by kin<j H. 8 liimaclf, and the
tkst draught of it, under his hind, h still ez«
tant ; and this pass<sd the lords, and was senl
down to the commons ; and this is the rery
same parliament of 31 U. S, when ibisterribfe
law pasiiefL
Sir Etlivanl Coke, in hb firat Inst. foL 99»
defines a tti!>ipensation thus : * Di$pcnsatto eat
' innli prohihiti [trovida, relaxatio utilitate sea
* necessitate pensata**
So that ^rcat utility, or nereisity , are at Itast
pretcnde<l ior the granting of them ; novif pub-
lic utility aud necessity are the true grouuds
and fouudation of all laws, (which 1 hare al-
ready shewn, bind all men alike, without re-
spect of person,) But a dispensation tloea untie
triat knotf or slackens and lets looae that obli*
gation, as to some particular persons, and in
some cHsea, and for some hmilcil time, at the
will and pleasure of the prince that excrciset
that puwcr.
It looks like a dispensation which Naamaii
the Syruin obtained from the prophet Elishft,
* In this thtng* (that is in one pariiruhir) • the
* Lord pardon thy servant io l>ow do wo himself
* in the bouse of Rimmon, wtien bis master
' the king did so.* He calls it a pardon, but it
rather was an indulirence or disuenaatiiiii thafl
1211 J
g JAMES 11.
Trial qfSir Edward Hales,
[Hit
tion of such particular drcumstaiicei) ougbt to
be done*
A dispensation is of a thing future, to allow
of a thinff to be dune, that it may not be ac-
counted for a crime, and makes tiie thing pro-
hibited lawful to be done. And thereu|K)n the
chief justice Vaughan, in his argument of the
case of Thomas and Sorrel, seems to take it in
its right notion, wheu lie says a dispensation
obtained, does jut dare. Though he quarrels
with sir Edward Coke's definition of it, and
says, it is < ii^notum per ignotius.' But, under
his favour, if he disliked that, he should have
eiren us a better. * Carperc vcl noli nostra,'
1. I kuow Tery well, tliat there are some of
late, that do ground this |K>wer upon the so-
vereignty of the prince, as if to be soveraign,
and to be absolute, and * solutus k Icgibus,'
were one and the same thing. As if it were
inconsistent for a sovereign prince to be bound
to law.
A prince may be a sovereign, i. e. no sub-
ordiiuUc or sul^ect prince. * Rex. est qui re-
* gem moxiroe non iiabcat,' and yet not abso-
lute and unlimited in power. It is a freqnen-
argument, and oflen disputed in our books,
what law the king is bound to, and where he is.
not included in the law.
2. It hath been arp;ued, that because the laws
arc the king's laws, that therefore the kin^
may dispense with the laws ; this argument is
of a vast extent in the consequence, as that of
the sovereignty is. But it is not the king
alone that makes the laws, and though they
are indeefl his laws * per eminentiam,' and
* Dcaomiuatio sumitur ;\ mnjorc,' yet others
have a liand in the making our laws, and a
propriety and interest in thetn when once they
ai'e luad..'.
We shall be best mslnictcd in the use and
nature of a iliijiciisalion, if we t;five some in-
stances of |»iiiu('iil:ir (•aiL»>, wherein dispensa-
tion", hrtvp brrn p.Muucii good by our judjjcs,
a!L,^ui.st tlr.; iJ.iialti:-; of S'unc p:u-ticular acts of
parliauicTit. J'it e.v::iiipi(\
\)y :\ iii[^'vi statiitf, (Jascoiiru ^^int". and
otiior I'orr^' ;ii '*Tim.\ ^/frw prolubiie*! to ht^. im-
port d into ilns kiii:T:'.< in, i»;it in Ln.';!i'^h bliips,
undn* lljo |Kii;i''. y < t' foricitin;^- the •fO'^d.^ ami
it was a |nwiit-i.I^: i:i»y f'.»r tlio enricse <.t' our
navy and euipli ynicnt of our own mari'-rrs,
wIhtciii lUv sireiiLjlii and KUi'ety of the ki^g-
d«nu is cj.^ct^im-ti. This inif toil ini^ of forcii^n
gojds i:! .'j'ici^n sliijis was too Murium,' bjt
it wtis c:.'/ ' n::ilam pa>biM.:n<i ;' t'.iat I-, it
VrTiS ij.i ,n:Li»c'<» liil the law liVtil-.i i . *>. U \\ 2s
not * ii';.l..jii ill .v.* It wns tin*:.'" rr: lesolved
by :\\\ tliO jii ;. - 'J R. 3, fol. i^, ll.jt liic ki':g
lul^hl tlij;.. .<ti uith this L'.v, ' <iimi clar.sula
* ii.i: ol L-ia;iiij,' and might give ijucrh.^c- *orome
p'ii.jciilrii- i»o:-soii» to iinpoA jiiica lbr«;^ii jjoods
in <b»'e;;^n siiipj;.
That i» Inch bei'ore this act of parliament was
a common liberty and traJe, by occasion of
this law, apply in;L; the prero<p!ive of dispens-
ing to ity was now engrcK»ed into some few
hands, from whence a rtvenoe its likdy wia
raised ; so that it might be said, sin took oco^
sion by the law.
By the statute of 17 R. 9, c. 5, no aalmnr
or weiglier of wool shall have any lease for uft
or years of his office, and if any charter or td-
tertt patents be made to the contrary^ (the sta-
tute says) they shall be null and void : so tfait
the makers of this law did not allow of siy
dispensing power, but provided against it,
which shews what o|)inion a parliament bath if
dispensations. Yet it was resolved^ DyerSQSi
that the king, by a Non Obstante, might ii-
pense with tlus mw. The judges indeed wen
of that judgment, but the parliament, who an
the supremest judges, plamly appear to be if
a contrary judgment.
By a statute made 1 H. 4, he that petitisM
to the king for lands, 6cc. in hia petition is Is
mention the value of the tbinff, &c. or else tbs
^Ling's letters patents, &c. shul be of no effect:
and yet letters |>atejits lo the contrary, are gooA
with a Non Obstante.
By the statute of S3 H. 8, c. 24, for avoid-
ing |)artiality and favour in admiuistriBg joi-
tice, no man is to exercise the office of a judge
of assize in the coimty where he was bora ir
dwells, under 100/. penalty ; and divers foracr
acts liad been made to the same purpose, u I
R. 2, c. 3, &;c. yet this we kuow is tntptaAf
dispensed with by a special Non Obstante ; it
that these statutes are seldom or never oImov-
ed, and are of little use. So likewise is lbs
statute of 7 Ed. 6, c. 5, for retailing of wmt^
according to the resolution in the case of Tho-
mas and Sorrel.
These may suffice to shew what is i
by the term dispensation, and what the
of a Non Obstante is.
It is an indulging of a priviledge to some
f particular person, or to a corporation, allofrisi;
liui or them to do a thing that is prohibited by
some act of parliament, (under a penalty) with-
out incurring the penalty. The doing whensf
V. as lawful to all, till that particular law did
ma?ve it au offence to do it.
The cliicf justice Vaughan, who an^ued ii
his turn the last but one ofallthe twelve judges,
in the late great case of Thouaas and Sorrel,
(and there ivas hardly a case in all the books
uiidcr that title, but what had been cited bj
ono or other, and all the rules and distinctioof
were there remembered) yet that chief justice,
afier all, says, that not one steady rule bad
been given either by the books, or any of tbc
judgfes, that argued before him. And for tbit
trite distinction, so generally used, of * maluffl
*• in so et malum prohibitum,' the chief justice
Vaughan professes, that rule hath more coo-
fouridod mens' judgments than rectified ihea:
yet he himself gives us no other.
Which shews that the notion of dispensatios
is not very ancient with us in our law, and if
but rare, and as yet unformed, not licked iat»
a |)erfect shape, (I mean still dispensations
wiUi some acts of parliament, such as this sf
25 Car. 2, not the granting Noo Obittttci at to
tub for tUu aaittre of a lilipenBHtjaii.
IQ llie next pfnee ctideavour io tniG«
:..:. ..I .V.I ■ ^ _ ^,r_ .1:.-. -.,^j^.
til-
■ ^.,.'..'U OS
ei:edeQl
r ail and
nut the lirsl ibat hnve nndertakeu to
(is discovery : in thu iirg«m<?nt oi' tJie
CoEuendaiu, in sir John Davy^s Re-
L (J9, b. h h WiifJt Ibat llie Son Ob-
i^ 3 first u«c'(l iti the court
, a . iiig" nn nnthor that de-
a r»oe Lgaiust thai court, for intro-
i ill a fiffH'^denU mi^hievoos to all
IwcalTi '''*■. ■',■,' ' - ", , fT,, U'ln-
incf rise
Q0Oli~-. Ill luiiuiij"!! u uiii^i, iinir iised
irog^alive to dispense with their penal
statutes, wh ^ '--^ iU,.y csiused
tobere%ioi^ ihelawu
iedes and Peio . , .. .ai^ht not
Thus says llmt report : here w«
whence it was borrowed,
tte chief justice Vau*fhan^ in his report
iBcof Thomas ami Sorrel, fol. 3-48,
nowledfje, that ibe use of dispenf^a-
3 principalty derived to us from the
to make som^ conjecture about what
legan, that we » ' vcv how old it
bich t*f the p< ; r author *>( it.
istory of the iinorn union, fof, 101,
power of dtsfietisitif^ with the lawi of
by tJiC liopcir, V ' "l* , [q
aijet. Pope!* 7 us,
Sarins, do fif'cly m. ... ,.,. ..;^. tlity
j\gii the d^creen oflfie ciiurch*
it was fii-st invf-iiii .1 1 v rnti>e
L about the bet: the
amph usiDf^ with their Uw?:; ; forbad
they oi».i.^ so^ they could not with any con*
Hdcncc have condemned the Popo tar tiding
tbeizi*
And we maj' see how odious these dif^teiiM*
(iot»8 ivfTc» h^ the vileopitUets the learned a^id
y^ood nieu ot thai age gave them.
We have a full relation of it from one of
their own order, a monk, but an bi^toriim of
very ^mil esteem, that is, Bbtth. l*ans; be
tells M^/that our king Henry tJie Sd sent carl
Bifiroi) and other nobler to the council at Lyona
ana amongst others, one William dePowic, ono
o4' his procurators and a cJcrgryinao, who madtj
an elegant oraiiou, ripping up the horrible op-
pressions used by the l*ope opotiEujfland, and
tlien delivered in an epistb'f directed to Popo
Innocent the fourth, b^ the * Magnates el
* Universitns Regul Angh®,' to the same eflect.
After this bad beeo openly read in the councilt
and a luigfhty silence followed, and the Popti
gave no answer to it. The king*s proctors,
' PriorifiUH adebant quenmoniam gravem et
* seriaru videlicet du violenta oppressione, in-
*' tolerahili gravamine, et impudeatf cjcactionei
* et iDJuna, qu» per banc invi^in adjeotiooetn
* papftJibos literis frequenter insertnm (Noo Ob-
* fitante) Sec, cxercetur per quatt} jus pro nihil o
* habcluret autbcntica scripta en«rvantur/ says
that historian.
The same author sap that the reformation
of Kiany things was obtatfi(»d from Pope Inno*
cent : * Sed oiurna htec et alia, per hoc Kepa-
* jpilum (Non Obstante) infirmantur ubi vero
ftdtii ! ubi jura, quffi scriplii solebantsolidari f*
Our kin^ Henry S convened his parliament,
and spread L»efore llicni the articles of the
griev:"— -'ifch be had so sent to Rome, and
atooi unein these wonls : wi, • Gra-
* vati.x l..^,..,ai A.M. 11.,,, V h;,.i.,^. ..,K-p.>i^|
* illius infamu , n
* Juramunti ilI^,,, ,-.;„ _.:l ,..„ .: .,
* acrimurarum vi^r, cmicea&ionum antorjL
1215] 2 JAMES 11.
< (Nun Obstaute) qute Omnem Extioguit Jus-
* ticiam.*
In anotlier Bull lie requires the payment of
a Rtun of money from the En^^lisir clergy,
* Quocuuq; Privilct^n sou indulgentia NouOb-
* stante, Licet presentps cxpressum de ipsis non
* faciani Meucionem.' Tins very phrase is
grown most familiar in letters patents witli
us, and we see from whence it hath been bor-
rowed.
That temporal princes at that time did not
practise the like, does evidently appear not only
tv thdr frequent complaint of them ; but the
llistorian tells us, il was then grievously feared,
that the kings and great men would iu time he
infected witti the ill example of the pope : his
words are, * Q^uod multi formidabant vehcment-
* er, ne Principes T-.aici et Seculares exempio
* PapiuEdocti Non01)stante talis vel talis Charts
* teuorc ;* would revoke their concessions too.
therefore as yet it was not in practice by tem-
1)oral princes, no not in letters-patents, much
ess inlaws.
I shall give one instance, wherein we shall
find the pope teaching this very lesson to the
king of knn^land, (Ilinry 3.) and instructing
him as his scholar to write aAer his copy.
King Henry 3, had made several grants
to hts subjects (bishops, noblemen, and others)
and had obliged himself by oath never to
revoke them.
Pope Gregory the ninth, by his bull, (which
Mr. Prynne (uho had the keeping of the
records in the Tower) says he found in the white
tower, under seal) commands the king to
revoke these grants, * Juramento et Instni-
* mentis prtedictis nequaquam obstantibus.'
King Henry 3, was easily taught this
lesson, and did soon put it in practice ; and
being reprm-cd by some about him, for using
of Non Obstnntes, the king justified himself by
the example the pope had ^iveu hin : * Nonne
* Papa,' says he, * facit similiter, subjungcns in
' l^iteris suis maniieste Non Obstante aliquo
' Privilegio vcl indulgentia.' But as yet it was
not exercised as to acts of Parliament, till a
lon^ timt! af\er.
What sad apprehensions it raised in good
men may appear by an example or two : when
one of these patents with a ' Non Obstante' in
it, was produced in the courts of Westminster,
one U<»irer «ie Thurkeby, (who was a ju«lge of
the court of common pleas, in the time of
king Hefiry 3,) U]ion the hearing of it (says
the Tlistorian) * Ah aho ducens suspiria' (he
fetched a deep sigh) and, * De jinedictiE adjec-
* tionis appositioiti',* (that is, conceniing this
clause or addition of ' Non Obstante.) Dixit
* hcu! hcu! hdn ut quid dii^s expectavimus eccc
*jam I'm ills Curia cxemplo Ecclesiasticae
* Coini|uitialur (.taSulphureo foute Hivulus in-
* toxical ur/
This plainly shews the time when the use of
them was flr^t introduced into England in civil
and teuq)oral cases, they were not used before
the time of Henry the\hird, which is not an-
cleut enough to make a prescription by the
8
Trial of Sir Edvmrd HaleSf
[1316
rules of our law, and we see from wheoee
theyleam it.
J shall DOW cite the judgment of a famom
and learned bishop of those times, coocemii^
these 'Non Obstantes;' that of Robert Grost-
est, or Greathead, who * per excdlentiain,*
was generally stiled no more, but ' lii-
< colniensis*?in the book of bis tliat is intitoM,
' De Cessatione Legalium,* published by the
late dean of Windsor (Dr. lleeves) : There are
some testimonies given of the bishop, oot of
authors in the beginning of that book : Amoif
others, it is rcmcmber<^ of him that he sent a
smart epistle to the then Pope, wherein he does
cry out upon the Pope, ftir that the Pope'i
Bulls did not superaccumulate, as he termi it,
the words (Non Obstante) which words, laji
that good bishop of Lincoln, did, < Chnstiana
* Religionis puritatem et hominum traoquill-
^ atem perturbare :' And he docs thereupon
affirm the Pope to be Antichrist : * NoDne,'
says he, < Antichristus merito dicendag est?'
And to prove him to be Antichrist, he fiulher
charges him : * Privilegia Sanctorum Ponti-
* ficum Romanorum pnedecessorum suorum
* P&pa impudentur annullare, per hoc Repagu-
' lum (Non Obstante) non erubescit ; sic oimit,
' et reprobat, quod tanti et tot Sancti odifi-
* carunt.*
When Innocent the fourth read thislnsliop*!
letter, he fell a swearing by Peter and Ptal»
that he would confound him : * In taotam coD-
* fusionem pnccipitaret ut totius mundi fiiboJa
* foret, stiipor et prodigium :' and that ht
would command the king of England, (whoB
he there insolently termed, Noster VanDos
a tenant or vavasor): * Et ut plus dioam
* raancipium (his property)* ilium natu noitro
' in carcerare.*
But the cardinals then about the pope, ad-
vised him to consider better of it ; for, sxd
they < Ut vera fateamur vera sunt quis dicit,
* Catholicus est, imo et sanctissimus.
Of this bishop, says Mr. Camden in hli
Britannia, he was, * Tenificus Papce et Rtrgii
' Redargutqr manifestissimus, et veritatis ama-
< tor.' Henr3r de Knighton adds this of bioB.
' Ad Innocentiam Pauam misit Epistolam satn
< tonautem/ (athunaering epistle) * quadere
* ad curiam vocatus ct Excomnmnicatus appel-
' lav it a Curia Innoccntii ad Tribunal ChnstL*
And this usurped power, though used with
more modesty at first, yet in a short time it
gre^ to that height, that it proved intolerable
and insolent.
The Bull of Pope Pius the fourth, publishes
decrees, < Non olistantibus Constitutiooibus et
*■ Ordinaiionibus Apostolicis.'
Another dispensation of the same pope's rust
in these words, viz. < Licet Christus poft
' ccenam instituerit sub utraq; Specie Pants et
' Vini Venerabile Sacramentum ; tameo hoc
* Non Obstante, (Sec* The Pope takes u|ion
him to dispense with that sacred instilutioo:
' A confieientibiis' (for so he prophaoely ex-
presses it^ < sub utra^; et a Laicis tantaii-
* modo sub Speoie Paou suacipiatttr.'
1817]
J%r negkcthg t^ take the Oath*
A. D. WB€,
[19I3J
In the oilli of a bblioti to tbe Pope (exUnl in
Human imntifical, set otit liy J^ojm* Clfmenl
ei)£hUi) Uie hifi|ii»|» u|ion his uAtli ilorli uc-
nlcilT^n ttinntiifst otl<er hUga/ia Fetrt<, tliat
the iVitit" can rtiiike void promi?;^'^^ tows, oaths
•rii) oUiipitiuiii tu ta*vi;, by Ins (iispensntiont.
Dr. Maria, *le ^fuHwlieliuiio, iitHrmii, that
* Pkpa ife i't«iiitu<line potthtutif \uiWM Uisnen-
* tare c?ontrajiis Divinurn, etC4>ntiii Apo^touitn,
* Ml 9iipf;r (ittiti»a Concilia, qtiie iotiTprctaturj
* tollit etcorrijjit.'
The Gloftsitor itpon the cnnon law avow^
l»V llic Rot!\ of Romi*, as the history oi' the
Council of Trent does quote him, holds the
can liinpensc ag«iD« the Old Testii merit,
the four £? angetists^ and ;i^ain^ tbe luw
rod,
BUhmi Jewels in his <{{»fence of Tlie Apology
<>f the Church of England, agtiinst Hnrdin^,
I'Wtifin in one of ihuir canonists ihar holds, that
Pop«, ' PriTitegium dare potest contra, jus
itinum: Papa DiapenaaretKitest JeOmiuki}&
epljs Veterisi et Novi Testa men It.' It is
let of tbe doscriplion g^ireii of Antichrist, by
|th€ prophet Daniel^ chap. 7. He shall think
jthiU be may change time«, and kws, and they
•hall br giveo into hia hauils.
Bis^hop Jewel's exptj^ition upon the ef>iil!c
to Uit; 1 hessalynians ftd. 131. Antichristt says
.the bishop, \H there called i ai«/u^, a tnati
'without order or law, that man of sin ; which ia
€fie of the peculiar notes of antichrist* He
•hall aeek to be free and ^o nt tiherty, he nhall
tied to no law neither of God uor man.
it is said uf tl»e Popr^ that he i» ^ soluius
inia Le^e humana. In lis qun? vnlt, est ei
[• pro ralicme yoluntua nee est qui dicat ilH,
" * T>t»»i*itit» cur ita facis ? file jiolest supra jun,
lire, et de Injustitia facere juitticiam
- ftdo jura et mutando.*
?Pope Martin the fifth djipeosed tfitb & man
raarried his own sister,
n this lant instance the Pnpe did directly
Write after tlie copy of an heathen kini^. The
Story of Caujhyse* is the same case in the %ery
|p<»iot with this last of Pope Martin. Sir Waf-
ier Raleigh mentions it in lus History of the
I World, Catnbyses inquired of his judg-es
^,',1, there were any hw amoite: the
, that did ptrniit the brother to uia^Ty
fiam vi> II !iister. It was the int«^t of Canihy ses
Hpiarry his own sifter too. The judges who
Rbiir Walter Raleif^h observes] had either laws
or distincnoi»H in store to satisfy kin^fs aud
jtiineHf ihry make a subtil answer, that iht^re
^WBM not any ihinj^' written sillowing nny such
mmrri^tfe : but they m>twi(hstandiii{( Teuiid it in
their cu*«ti»ms» that it wm always lift mi Ik* will
9f1i the PerHiaii kin^a to do what best pleaned
iheniaelvra. Tlitk wax a Non ObstAnte with a
^ ijf and the P*ipe\ print Ice tocrethpr,
rocraiion tc» Mr ( hiilini,'Wort)i"s nb-
Uf that would usurp, sayn he, an
ifte lordship uver any ptople, need not put
df to the trotddcof alurv^xutiiijr or disannul-
|th4? la^vs tuaik to lujuitaru the eommao
IL.XI.
nhfrty, for he miiy frustrate their intent, anil
conipass his desii^n u^ well, if he can get th« ;
power ami authoritv to interpvH thetii as he I
fdeases, and to have lus •uterprei.'if ini»s sitmd tor
aws ; if he Ckin rule his penpin by liis Jaws,
and his laws f«v i>i. innyers : therebiiet says h<*,
there in tt ! la frequent report to hts *
h.id to the J J , : ^, not only to resolve ditfi- <
cuUies of judgHuf nts, but to keep the j>ow(r of j
internretalion within its due bouutls; which fS
excellent advice.
1 shall give but one instan«H» more, and that I
is of the tnost impious sort ot dispens»tions that ]
could pofisibly he devised ; I lind it in the httf-
tory of the church of Scotland, xvritttru by arch* ]
iMshop 8polawood. He teik us that in anno
1500, dispensations were sent from rtoinc inf# 1
Scotland, \* hereby the Cat hnlics were |KMinif ted
to prDfuise, iiwcat% subsnibe and do whut i!^© '
shouhl he required of them, so as in pnnd (hey
continuctl tiriu, and did use their dihgeitce iit ■
Eecret to advance the Roman faith.
Thus we see the monstrous ubu^es bronprht
in by dlspensritionsr t hate been soinctbuig
long upon this subject ; but it was net*essa ry \o
shew how tliat it is in the very nature of it, tube
stretching and growing, and at last to be alto-
gether unlimtted, atid will totally ^ubrcrt th»
law.
Havini^ tluis bud my foundation, I shall now
proceed irom thence to raise my arguments
against di»i»cnstttions in general, to prove, that
Ihev are not law, but indeeil contrary to law
and destructive of it.
I hold til ere is no just nor lawfid |iower of
dispensing with any act of parliament, in any
other hands than in tho-«ie that are the law-
makers, that is, in the king and parliatneut in
conju^tction ; (I iH^tttine myself to d4«(|»eisa-
tiona with acta of piirliainent*)
1, My first argument shall be i'vom the
nature oV a law, (whereof an act of pnrliumeue
is the hijrhest and of grea^tpsi aulhorilVv A
law hath itjt name, a^ 1 said hrtore., from ita
nature, * Lex k Ligando:* it binds ami com-
pels to obe<lience, and it bMuU too^Hher aud
cements^ it knits and unites a multitude of peu*
pie, and makes them all tin it were but one
noAy.
Sow a dispensation ia of a ipute contrary
nature, and i« destructive of law; n^- •' ■ ' ■ -
d«e^ * Ligare,' adinjieti^ition doe^j ♦ I
It is delined to he, * Relaxstio Juri^ >
ituhimlandset hxise the ohtigiitifni itf |lu* law,
and by consequence t^nds to the di>ecotvuig of
the body politic. Whataoewer w «k»itnictiie of
the law cannot itself be law ; fur then ttm
law woulil [>** Jeio de u, * Lex qioe Leg*-*
' eveiiit iiwa Lex ense non potest,* a iluug di-
vided against itself, and therefore will not
ttamf * rhi non est pudor, nee cura juriK, in-
* sr;ibile Rei^oiun est,' »avs Seneca.
Law is made by an unlveisul conwfDt and
agtecK tM'c and pe<ipl<*.
I \r.i shev n, how that the eommon
law tMtnili l^ ii« iineicut us the nation itself)
\n that oo^enant whieh waa agrt^d upon by
4 1
1819]
2 JAMES II.
Trial of Sir Edward HaUti
prince and people at the first framing and in-
atittition of the government.
The statute law, hath its force and autho-
rity from the like consent, and nothing is law
.Hirithout that consent, as apiiears by the pre-
amble of ^5 II. 8, c. 31, concerning the very
point of dispensation ; Sip John Fortescue says,
* Hex le<^ sine subditorum assensu mutare
* non potest ; potestas reg^iu lege cobibetur,' in
his book de LaitiUbus Legum^ &c.
Now for the prince alone, without the like
consent, to depart from that agreement, and at
his will and pleasure to break any article of it,
is in effect to put the sole power of the law
into the hands of one person, which received
its iorce and vigour from the consent of all ;
which is irrational.
Bractoi},*%vho, as sir Edward Coke says,
in his Preface to the ninth Re|H»rt, was a fa-
mous judcfe of the Common Pleas, in the time
of king Henry 3, is of this judgment. Leges,
says he, < cum fuerint approbate consensu
* iitentium, et Sacramento Uegum confirinatec,
* mutari non possunt nee destrui sine Com-
* muni consensu et Concilio eor,* ouor' ooncilio,
* et consensu fuerint promulgatie.
9. The laws of England (both common and
statute law^ have (as I have already shewn) a
different original from that of the power of dis-
pensation (as it is exercised now among us) :
they have not the same father. The king,
(wiio is Fitter PatrUt) with the consent of the
people, is the father of our laws, he is Juris
Paler : but he that is called tlie holy father,
and from thence hath his name of Po[»e, is the
father and first inventor of dispensations ; so
that there is no kindred nor athnity between
tlie law and (lispenNation.
S. The laws amongst us and this faculty of
dis})ensatioiis, as tlicy have a different original,
so tiiey have no reseiublancc one of another:
* facies non omnibus una est/ they have con-
trary qualities and dispo&iiions. The law is
ef^ual and impartial, and hath no respect of
jiersons, and (as before I observed from Aris-
tut'e) is a mind without afl'ectioii. Now the
nature of a dispensation is to favour some, to
fit some at liberty from the obligation of the
law, and is a kind of prreteriliou of others, leav-
ing them still under the tyc and <ihligation, and
obnoxious to llu^ penally if thry transgress.
\S hereas, in a well governed kingdom there
ought to be nnum ponUus and una fr.cn^uni
in diiitribntive, as well as commutative J ustioe.
It was part of the oath that was taken by
king William 1st, (ivho is connnonly stiled the
Goufpierui-) that he would, * yEquo jure Au^^rlos
* et ri'ane4)s traetare :* Which oath savours
nothing of a conquest, nor does it run in the
•tile of a coiiipuTor.
And it is the (»ath of a judge at this day,
That he shall truly serve the king and his
people, «N(c. Thai he shall do right to every
pei-4<iii, liutuithstaiiding the king's letters, that
IS, notwithstanding any Non O^tante.
niilM but by Act of Pavliamcot.
It is a maxim in law, * Qno mode mliquid
' Ligatur, eo moilo dissolvitur.*
Now a law being made by conaeot of all,
yhould not be dissolved again, but by the Un
consent ; that is, by authority of the king aad
parliament, who have the legislature. Dr.
Willet in bis Synoput Papismi^ makes a differ-
ence between a toleration, and a dispeugation.
That of Moses, in case of divorces, was a to-
leration. A dispensation (says he) must be of
as high a nature as the institution : None but
the law- maker can dispense with the law, not
he that hath but a share in the legislature.
And from hence I shall take occasion to as»
sert, and shall endeavour to make good my s^
sertion by law, that the lawful ))ower of dii*
pensing with an act of parliament, that cos*
cerns the public, is only in the hands of thoit
that have the legislative power. I confine my-
self to sncii acts only as concern the pobue
(as the present act, we have now to do with,
does in a very high degree.) And tlwrefore I
hold that none can dispense with such a kiw,
but the king and parliament, and such si tbcy
entrust with it.
I shall begin to prove this by an act of p•^
liament, which is the highest resolve and aa-
thority in our law : it is in the preamble of
the act of S5 Hen. 8, c. 21, (the statute of dii-
|>ensations) and the preamble of a statuto ii
law, as well as the enactins: part, or body of
the law. It is m effect a declaration of whil
was law before, at least it shews the opisiis
and judgment of the law -makers ; which is of
high authority.
It first utterly disowns and renounces the
pope's long usurped claim and pretence of dit^
pensing with any person within this realm,
even iu matters spiritual, though by him prs^
tiscd for many years. I desire to obocfre
upon this, that long usa^e by an usurpatioo,
gives no lawful right: but I would furtbir
observe too, that whei« it halh been long ad-
mitted and used, it is in such case reasoonUe
for none hut the supreme court to undertake it|
and declare against it.
In tlip next place, this act of psrliaoNHt
docs afTirm, that this realm of England is sub-
ject to no laws, hut such as have been mi^
and taken by suflerance of the king and hb
progenitors, and tlie neople of this realm, it
ihcir free liberty, by tneir own consent, to bo
used amonght thcni, and have bound t ben-
solves by long use and custom, to the obserr*
aiK'o of tilt m, as to the customed and andHC
laws of tiiis realm originally established, li
laws of the same, by the said sufferance, coo-
seiits, and cu.Qtoius,* and none otherwise. Thii
shews the original of our common law. Thii
likewise clearly proves, that whatever is ini»
posed upon the people without their oonoeoti
hath not the authority of a law : and it cannot
be shown that ever tlie people did consefli
to this |)ower or pmctioe of granting dtspon*
sations. But it plainly a{)pcars that our scli
of parliament are so tar from approtiag or
* NoLawor Custom of England can bean- .countenancing of it« thai they have oAca
llleJ hllft hv Art uf Pai-linmont. fiMi^^AcI nrr*inc« i* nlfl«Aiir>!i ■» wmm kItlMWte.
fenced agiinst it, although in
hilbflrtOb
ItSI]
fd^ negleeling to taHe the Oaths.
A. D. 1686.
[1SS»
And ihougb the nmge have been verj ancient
(afl 1 have fihewn) yet that gt^es it no lawful
sutbority ; tor this preamble declarer, thot>e
only arc Uws binding to the people, that have
been ongitially ^stablishett as jawf , The worti
(originally) refers no doubt to our very prirui-
life iusiilulioti, which i« coromoti law, or at
laait to a time so anci«nl) as that tbe original
cannot be traded out, nor siicivn, and then il
phali be presumed to be tbe common law.
|fi»w I have, 1 hope, clearly evineed that the
fr«xy first iuvention and pfactice of dlspensa-
tiooa, by the hifiliop of Home, is not tinne out of
Siindf nor can the iisagti af'it here by imitulion
of the Pope^ reach |ip lo a prescription, hi the
ludg^ment of our law, nor by tbe rules of il.
For fir Edward Coke in bi» first InstlL fid. 1 15,
treaiint;^ of a jirescri()liou, and the nature of it,
^JM^ TiiRt it there be any snfBcient proof of
leeord or writing lo tbe contrary, albeit il fx-
«eed tha memory of any maa Irving', yet it h
bnlbiu the mL-mi»ry of maii^ in a legal sense, it
lliii its orii^inal bince the b(»frinniit^ of tUe rett^n
of oiu- kiug^ Ricbani tst, (I bat is in the tune of
Icini^ John^ and king Henry 3d.).
But Ulilt which make* it much the stronijeif
Is, that this declaration of the king nod par-
ijflffient a^rainst such dispensations and bwf
itttrodueed without the kiu^and people-s con-
vent, docs conclude with ne^tive words, viz.
* and not other\vJ«e' and is excUisiivc of all other j
Uiat \s, that nothins:^ is law without their consent.
And this ftatute of dispensatiouB proceeds
fiirther to shew, where tbe true and lawful
power of planting' dispeimtionti is vejitcd, in
Ihefie words, via.
It stands with natural e<^uity, and good rea-
son, that in all lawx human w itbin tliis realm,
the king anrl both house's I't^prescntiiior the
whole sute of tbe reibn, have full powi^ to
diipense, and to authorise some person to dit-
petisa with those, and alt other human laws of
%hhi i-euliu, and the same lawsi to ubro^ate» an-
»iiU amplify, imd diminish, as it slmll b** seen
unto the Ling, tbe nobles, and the oouuuons of
tJie realm present in |}arlianiBDt, mct-i and ron-
T«nient for the wealth of the realm. And th4:fn tt
Joes dispose of the power of disiieimHtion in
1VBtterseodeHia»ticai at the archbie»hop of (.'an-
perbury ; some whereof qi*c to be courirnied by
tbe king, and otlters that may be good without
llie king^s conlirming.
Ami although the bmly, or cnactlttg part of
* I statute, extend m^ly to causes ceclesias-
^1, yet tbe preamble does reach expressly to
all human laws.
This sutute of 25th uf Henry the eighth,
ivas made in tlie time of such a kitii^, a^j xve
all know, by reading our historiea, stnod highly
upon his prerogative, and would never hrtve
consented to such a deelamtlon, concerr:ing
been no need of passing such a law : tbe king
ly have transacted all
this matter provided for by this act of parlia-
himself alone could easily have transacted ;
ilift power of dispensing, it it liad hvm a spe-
mml prerogative in ibt crown ; and had there
^cen such a poiver intliecrown, the kiit^ would
iM^r have suttere^l hitnself to Imve lieen de-
pfived of it, and to have it ilip^^Mi^t-tl of into other
■■ndi» by the parhumdnt, tmd there would have
ment, had be had tbe vole power.
li istructhatthe lord Hobart, in his reports,
foK 140, mentioning tins act »if dispensations,,
and faking notice tbat> by the exjsress words
of the act, all dispensations, &C, shall be granted
in manner and Ibrm as is prescribed by that
set, and not otheruise; yet he ho!ils ihal the
king is not thereby restrained, but that bit
power remains full and pert'ect as before, and
that he may still grant dispensations as king :
for, says he, all acts of justiee and grace Hon^
fVom liim.
This and such like ttatntes (says the lord
Hobart] were made to put things into ordinary
form, and to ease the kmg of labour, not lo de-
privif him of power.
This opinion of his is grounded upon a pre-
sumption, that the power of dispensing with
laws, was always from tbe beginning a prero-
gative inherent in the erown ; not citamining
who was the lirtil author, and the time when it
first began, and whence ue borrov^ed the use,
and how there was a time wiibiu evident proof
t4' credible and authentic writei's, when dispell^
iutions were not in U5?e ; and so they are w ithin
the lime of metnory in a legal construction, and
eaonot lie by prescription.
And it i*! pluiu everj' legal prerogative must
be so by prescription, that i^ii, used time out of
memory of man, and whereof there is no suffi-
cient writifig to the contrary.
But I may ao^ieat lo ttny unbiassed and equal
judgment, upon the reading of litis act, e>pe-
cially the jireamble of it, whether this act
merely intended to ]nn things into an ordinary
Jbrm, and to ease ihc king of laliour ; or xvh ether
it was not to put an absolute slop to the former
praettc^, and docs not directly dec! sire and de-
ter mine where the true power of dispensing evef
Wft3 ; and therein uses thoso exclusive words
*and not otherwise,* for those words are lo the
preamble, as well us in the botly <d*the act.
So that this construction of the lord Hobart^s,
I'liat s(i|| the king uiay ditpcnse akme by him-
aelf, Dud that he might have done so by Iti*
preregutive, liefore the mtiking of tins statute,
and may do so still, nt»twithst[uidingthi!i statute^'
is diri'tily against the very words *d' the statute,
which say it shall not be otherwiNC than as tbe
statute directs, and being in die negative at^ the
I stroiigtir.
A\n\ tbe three instances, or cases cited by the
I lord Hi>bai t, till out «f Dyer, do not come hom^
1 to the ca'^e of tbe king^s granting dispensation^
in other manner than the statute of 25 H. 8, c.
ai, hath directed, which expressly enacts that
they shall not be granted otherwise.
I 1. Hbi first instance is out «d' Dyer, 'ill. The
statute of "ia H. 8, c, 15,appoiiits^tbrit tbr* com-
uiis^iioners for Iryal of piracy, shall be named by
tlie lonl chancehor ; now it happened thtre was
no lord chancellor, but a lord kcejier, ami ir ^« as
held that he might name the commisbiiui».'rs, by
I th« meaning ot tiiis statute, sb ^idik'^>^^V^^
I2i3]
2 JAMES II.
Trial of Sir Edward Haleif
[ISM
chancellor. Tiiis is, under favour, kit a weak
|iro(>t' of the kiufir*s power or prerogative, of
varying from tlie ilirections of an act of parlia-
ineot, or dispeusioi; with the rules prescribed by
it ; for it is a mere imaginary variation, the
lord keeper ever having the same power as the
lord chancellor : and it is not merely so enacted,
but deciaretl by the act of 5 Kliz. c. 18, whicli
urovesi it was law before. And yet some judges
iieiti the commissioners were not well named,
but that the commission was void.
S. The second instance or authority that the
lord Hobart uses tu prove his assertion, that
the words * ^nil not otherwise* in the statute of
dispensatiois, do not restrain the kin^^s power,
but that he may do otherwise, is out of Dyer,
235. That iju^en Elizabeth might make
sherifis without the judires, notwithstanding the
Stat, of 9 E. 3. This Islinll have occa&ion to
examine and sftcak to more fully, hereailer, and
therefore shall reserve it till then, and doubt not
to shew, it i«; a mistake : and it was done by the
queen iu a case of necerisity, it being in the time
of the pla;j;ue, when the great officers could not
safHy meet in the Exchequer, (as the statutes
re(|uire for tiic cbusing of sheritis) and the
term was held at Hertford ; and the report says,
so shcrifl* was named by the queen, for the most
ftart, but out uf those names that remained in
ho hill for the former year. And the book only
says, it vat helU, the queen might do it by her
prci'ogative.
3. The Inst instance that the lord Ilobart
pves, is out of ])yci', 303, b, that the king may
grant the aulnagers office without a bill sealed
by the treasurer, though the statute of 3i H.
(i, c. 5, says tlie grant of that oflice shall be
)oid, without a bill scaled by the treasurer.
. The resolution of that pouit is very ol>6curely
reporu'd : but however take it at the strongest,
this is iu a matter that concerned the king's re-
venue, and where it may more reasonably be
said by the king, * May I not do what I will with
' my own ?' And this statute may easily be un-
kings have sometimes accepted it firoai them in
some particular cases, and for some limited
time, and with divers restrictions ; which is t
full acknowledgement that it belongs only to
the legislative power to dispense with laws.
The Commons, for the greet effisncs
which they repose in the king, granted, that be,
by advice of his lords, might make sudi toker^
ration touching the statute of provisions, as to
him shall seem good, until the next peifMroent,
so as the statute be repealed in no piut theraof.
So also as the Commons may disi^gree thers*
unto at the next parliament, with this protesta-
tion too, that this tlicir assent being indeed a
novelty, (these are the very words) be taken ftr
no example. [15 R. 2. nu. 8 ] This is grantel
with abundance of caution and jealoosy, ni
proves it is not ancient.
The Commons do agree to the power granltd
to the king, for the moderation of the statotei
touching provisors in the last |>arliainent, be-
seeching the kiug, that the same may Mt
licence any canhual or stranger to enjoy any
beuetice within the realm. [2 U. 4. nu. 96.]
It was enacted by the lords and comnn
that T^deman late abbot of Beanlew,
elect of Landaflfby the Pope's provision, i
enjoy the same bishopnek, uotwithstaodisg
any* act, so always as this be taken for ns
example. [U. S. nu. 32.]
That the sale of tin may be at Lestwithiel it
Cornwall, and shall not continue at CaUi.
Notwithstanding the council may grant lioenos
to merchants, to carry the same tin to wbil
parts they will, as to them shall seem goad.
[17 R. 2. nu. 34.] Here the power of di^pcn-
bini? is delegated to the council.
U|*<)n the request of the commons, the kipg
proniiseth that he will not from thencelbrtbdis-
|)ei)se with the statute of provisions to bene-
fices. [2 11. 4. nu. 63.]
This implies, that the king had practised it,
and we know who l>egan the practice, and who
tauglit it to others, and this record shews it v
dei stood to be to put the granting of tiiis office I without consent, and was a cause of com^ilaiot,
into an ordinary tbrm, and to ease the kiiiu: of
labour, and not to restraiu his power. Ji'that
inay be said in any case against the express
words of a statute, it may be in a case that con-
cerns merely his rev cnuc, as this of the aulneage
was.
In the no xt pl::co 1 shall shew, that the stream
of disnonsaiioiis did ancii nily run in this chan-
nel, till uitcrwards it I'ouuii out another course,
and thut disjiensaticus wilh laws, were only in
tlie s:u!U' h:ui(ts na had the legislature, that is, '
in till? kin;^ and paiiianicsit, in loruier times,'
and Tins air*W(r.> lliut example that hath been '
used, that Aiiitiuhty CofI dispensed with his own |
law of tli(> cixth cnnii:.':i!i(lineiit, when he com- !
U)and>-d Ain-:;iiaiii to sac-.ificc Isaac. Ciod was '
tbo <:ri at and onlv le(^'i:>lator. Nuw the king is
not I ho sole ic-:;ii.f;.trr.
I shall present \ou with a very udl prei'e-
dcnt and proof of the power of dispensing with
acts of pnrliauicnt to be no where cisu hut where
the very Icgialatiirc power is. Aad thai the
(md the kiu^* promises to reform it for the future.
But what Signifies a promise, where a law aod
an oath is too weak to secure it ? This promise
doth not confer a new right, but is to reform as
unjust practice.
I shall use one argument more at^ainst this
exercise of the power of dispensing with acts of
parliament, as it hath of late been practised,
and that argument shall be raise<l from the
great inconvenience and mischief that will ea-
siic I'pon it to the kingdom. It may occasioo
the inf'rrquency of parliaments, by taking
much of their power out of their hands.
l^aws are many times made but probationeis
and tem|K>rary, to the end, that if upon expe-
rience of thorn they be found to be t«io severe
or strict, and to sit lianl upon any persons, tbit
the parliament at their next meeting may mo-
derate or relax the severity or ioconvenienee
that may arise by them. But if there be ano-
ther way allowed for the doing of this work,
there will be the less needof afirlianeiit, and
122j]
fw neglecting to take the Oaths.
A. 0.1686.
[1226
sn other waik, thur ret|iiires •lno tfieir meeting',
Imiy remain nm em eilie< I.
II vvccojisickr bow tie«]iiciitly ihe pnrliament
ouglit lo meek, and h»»w otWn they tliit ancieiilly
luect^ we lilinll cosily tie cnnvinced^ that tlit
reUxuiji^ of a la**, or giving remedy, (where
the law was ii|ion ri£)»erience fouml luconve-
niettl) whu n work properly bflontfing- unlo
^tlicti), and there was no need of resonijir to
luiy other help : for who ithouldcure or reform
!a Iftw, if any thing: *^^>^ amigs iii it^ hut the
l«w inakens? 8ee the statute of 0 H. 6p
!r. 10, Ihe Wk of statutes at lorgfe, coucemin^
BrtMoL
Uur Hiixon kinj^ Alfred and his wise men
(that iff, ihe j^rwai omncil of the kingtIom)or-
tlaioed, thai a parliament twice a ye^ir, and
nfieueriti time of peace, tihould meet i»i lyjudou.
Tbui, ti:iys that ancient book, stiled. The Mir>
imirpf Ju«ttC4v':, u. 1, Beet. 3, jiag. 10, by 4 E.
d, c. 14. It VH acearde<l that a pMrtinment shall
' lie bohleo every year once or more oUen if need
I lie ; this dues not abrogate nor alter king^ At-
*ffe<J*!«l«vv.
i ^ Uy 36 E. 3, c. 10, (many Uwi had passed in
fe^i nariiniiittnLof 30 £. 3, wlfirh are there
pWwd articles, as anciently our statuics were
!3nwn uito certain articles, and &o paflseii at
licin^ anicies of agnsement betwixt the kingr
and liid subjects, as I had occasion to ohi^rvc
in the hegiriuinjf of my discourse) and thi«
•latutc of J(j Iv 3, prov'ides, that fnr in.ninle-
iuiaco of the said articles and Htatute^ and re-
of divert mischiefs and jfiievnures, \\ hich
btippen^ a psrHument shall be liuldeu
year, ni anoiber lime was ordained hy a
, refernns^ to the sialutc of the fourth of
The act of IG Car. 3^ c* 1, for i^epeal of the
trienniiil act roadt* iO Car. 1, in the last nara^
I graph Mciics, (but by the iincimitlatvs and sta-
^tutiMiof thi« rtalm.niiidc in the rfign of king
I Edward the 3d^ p!irhut»»«rnt« are to be held very
ulicu ; and iUi% act of 10 Cur. 2, makes a new
biou, to the end (a* the words are) there
L bft a Jretpitrtii calling", asiembling and
iuLf of pnrlmmctits once m three years at
ti«e leuxt.
Mow let us enquire ^vhat the proper work of
a parli«mcni is, uhicb the liaitl sentute of 30
K* 3, mentiariH in purt, viz. for maintenance of
tin* mu«-l«'S and htatntes nod redress of mif-
fihi« f^ aiirl f^rievnncca that daily happen (as
lb;ij iU*s),
N - < I i th , { w ho \% a.fl pri net pid secret ary
offituii) III his tre.(tis« dc flcpuhlica ct Admi -
aifttraikine Ani^iorum, I, 2, c. V, ioh 50^61,
■ayt thiji of the parliament,
* In Cimiiliii Parliamentiiriis posita est
^ mnnix aii;fnHi4e a^^soUitie'tuc : pote»tHtis %'m,
^ V'«ftcr^4 le)2'e« jtilvenl *'i«ve irritasi iio%a(( in-
* dtti'unt, UK' iMudum conttiiuunl/
('l*b*'re H iL itsiny; |>ower) ♦ tnccrti
* jwriv <^ontrln»'^-.^:i^ inr iuniiit.*
Ur*i4iUtQ w litis of i!m^ hr^h comi, * 11 abet
' l£ex (Junam isuam in cimcilio ^uo in PnrNa-
* ffitDtai auis, tibi tcrmiuato: sunt itubilauones
^ Judicjorttm ; et tiofis injurus^emersii, nofa
* const ituuntur reiiiedia.*
The IVIirronr of Jiuticeg, c. 1, p, 9, «iy»»
that parliaments wht inslilnlcd lo hear and
determine the complaints of the wron^^ful aeta
of those, again«t whom the i^uhject otherwise
conld not hate common justice, that ia,
against mat and poweriul delinquents*'
^ Nihil prtHle»t^ («&y" Bracton) * Juracotice-
*■ dere nisi liitqui Jura tueatnr.*
So that there is need of a frequent resort to be
had to the law-makers, not only to rcaolredif'-
ficultics of judgments, but to keep the power of
interpretation within its due bounds : and the law
hath taken care for frequency of parliaments.
8ir Francis Bacon, in his Advancement of
learning', gives this excellent advice to law-
makers, and to those to whom it belongs to de«
fend the laws.
Let not, says he« Prn'torian courts (speaking
of courts of eqoity) have power to decree
against express statutes, umlei pretence of
cijuit)' ; for, tiay^he, it this should be permitted,
a law interpreter (that is a judge) would be-
come a lawmaker, and all matters should de-
pend upon arbitrament^ that h nponnu arhilrarv
jHiwer. And mbitrnment would encroaou
uj»nn, and at laal ^wnllow up taw.
The (lower of extendi njf or supplying or
moileratmg lawii, little differs, says he, trooi '
the power ol makinj^ I lieu i.
Courts of ct|uity bomctimea, under Uie pre-
tence of mttigaliog' the rigor of the laws, (and
such is the power of dis|iensinsf) rela.t th«
iitrenglh and sinews of Iaw5, by drawmt,' all
to arbitramentii. He was well able to judge of
this, hnvmg btcn lord chancellor. And it is
his 46th Aphorism, that is the best Uw
which erives the least liberty to the judtre ; ha
is the uest jurtge, that taiics least liberty to
himMclf*
Therefore where any new law siti uaaisj'
andtoohtirdand heavy in some particular cases, '
it were much saiVrto sutferthe mischief for
a time, (if any such hap|>en) and let it wnit till
thow that gfaie the wound come lo "cure it«
* Una cadouique manus viihiojt opemque feret.*
The overhasly cure, arisntg: from the imjia-
ttenee of enduiing; pain, niiikes the case the
worse ; frecpiency of parliumeuis is a proper
cure. Oilier ways of cure ure apt to cause iu-
frequeucy of parliaments.
And iri nmtters of ^reat difficulty which
come before the jndjres tn the cotirta of Weal*
minster, or if there be no great difiieulty, yal
if it be of mighty concernment and not clearly
concurring with ihe mleni* nnd words of law-
piakera, but the Itiw in (lie scope of it, is lika
to be frustrated by (in haMy diterminaiion, il
fs, under f,ivour, th*^ duly <d tbejmlgeshi such
ciises of Uubitaltooes Judicior* f t" reMt till the <
parliament meet, and then to pro|i«>8e it to the
parliament for th«»ir resolution. Thus it ia
• Uob, 157.
^ Nir R. CoUoii*« Abrid^. I R* «, tiu* 95.
S ioit 408.
J227J
2 JAMES 11.
expressly provided in the statute of treasons,
95 £. 3, to dcf«r doubtful cases tiU the parlia-
ment resolve tiiem, being in a matter of so
high Gonoernraent aii that of treason.
And in cases of much lesser oonseqaences,
cspeciali^ upon a new law, (as that is that we
have before us) in several cases cited in Black-
amore*8case, the judges have sought to the
parliament for a resolution in smaller, matters.
8 Hep. 158. In doubts arising before the
judges in their courts, upen the construction
of acts of parliament, the judges resorted to
the cooncil, (which is tliere said to l»e meant
«f the great council, the ]iarliament) that
made the act in the case there cited.
The question* did arise ujion the statute of
14 £. 3, c. 6, which ^ives power to courts to
amend misprisions of clerks in process, in
writing a letter or syllable too much or too
little, fiut whether these words in the act,
gave power to amend where there was a whole
word too much or too little, was the Question,
and the lords declared, 39 £, 3, 21, that theur
meaning was, that in such cases the process
should be amended : this shews the tendeniess
of the judges in those times, in construction of
new acts of parliament, and the frequency of
parliaments, and the resort still had to them in
case of doubts. And this was in the time of
£. 3, the most flourishing time of the law ; and
a case that the then archbishop said had no
great difficulty in it.
But I presume it will be said against mc,that
this is a deer case in law which is now before
us, and that there was no doubt nor difficulty
in it, but that the king by his prerogative could
dispense wiih this act of S5 Car. 2, and that
all the twelve judges (but one or two) were of
that opinion, and that the p«iint hath for-
merly been resolved in the case of continuing a
sheritr in his otlice longer than one year, not*
withstanding the several acts of parliament to
tlie contrary, and that was so restolved by all
the justices in the exchequer chamber, 'Z H. 7,
and by the opinion of sir Edward Coke, lU
Kcp. 18. and repeated in Calvin's case, 7 Uep.
14, which are the only authorities that come
home to the case, and none of them ancient
Before I speak to these authorities in the
rase of dispensiug with a shcrifl* to continue
longer than a year, I shall make it appear, that
tlie case now in question, or the point in law of
this case, was very much doubted, if not cleai'ly
held on the contrary, that the king could not
dispense with this act of 25 Car. 2, and that by
BO mean judgments.
If the king could have dispensed with it
by his prerogative, and it had boon so clear,
what need was thereof his ninjcsty's proposing
it to the two Houses, at the oueomg of a ses-
sion, to allow hiui a power or dispensing with
this law ? or that they themselves would dis-
pense witl) it? why would the two Houses,
afler long debate about it, excuse themselves
from consenting to that which the king conld
* 39 £. 3. SI. 40 £• 3. 34.
[1228
judgcf
Tf-ial of Sir Edward Hales,
do without them? were there po
that did scruple the doing of it?
li' it were a preroffatire in the king, bow
came it to be so long iiefore the king's Msneil
counsel could start it? we beard noting of
this, till all other ways were tryed.
Let me add to this what was spoken by At
late king's own command and direction m tbi
House of Lords, before the king nnd both
Houses, and all the judges present, by a kn
lord chancelbr, who, as he was an nccslkwt
orator, so he wss a very learned -lawyer, wuk
my honourable friend.
It was in his speech made to both Honsi^
the 23d of May 1678, (obuut five years afWibs
making of this act of S5 Car. 3,) and it ««
spoken in reference to this very actofpsiis'
meut
* Hath not the late sot,' says be, « msdsit
< impossible, absolutely impossible for the nsM
* concealed Ptapist that is, to get into any kind
* of employment? And did ever any bw
* smce the reformation give us so great a ss*
' curity as this ?'
Hereupon, in the same speech, that noUt
lord doei^ decUre it now a stale project to ns*
dermine the government, by accusing it of ca-
deavouring to introduce Popery, that a WM
would wonder to see it taken up again. This bw
had so abundantly secured us against tht
danger of it.
And yet, afler all this, do we hear tbejodgN
openly and judicially declaring, that it ap-
peared to them to be a very plain case, that tas
lung alone could dispense with this act of psr-
liament by his prerogative : and though it was
acknowledged to be a case of great consequence,
(as the truth is) yet it was pronounced withal
to be of as little difficulty as ever any case wai,
tliat raised so great an expectation. *
These are strong arguments to prove tbs
doubtfulness of it. Afu>r all these refusals or
hesitations, it might very well be accuuntsd a
doubt or ditliculty, worthy to be referred to tbs
judgment of the |)ar1iainent, if tlie parliamsol
had not already in effect given their judgoMBl
to tlie contrary.
As 1 remember, it was in February 1663,
that the two houses make an aildrcss to the liiC
king, for revoking a declaration, whereby hii
late nu^ty had granted a toleration and in*
dulgence to some Protestant dissenters, as be-
ing against law, and such a toleration was de-
clared illegal by the parliament iu 1672. TheM
are two resolutions in the point by thesuprems
judicature.
Jf this prerogative of dbpensing with adi
of parliament were in the crown by prescrip-
tion, (as it ought to be if it were a legal pre-
rogative)* it ought then to be confined and li-
mited to such cases only wherein it liad beta
uncieuily and frequently exercised : and thers
ought to be no extension of cases wlierc they
are depending upon a prescription, nor is thcie
any arguing a ParitaU raiumig in siich casn^
• 13 H. 7. 19. Plovd. fllO. SSt.
Lilis prerogative *»i rjg vnih
•rlianient^ in tbc os^,. i .. ? and ex-
il, was lull in v« ry lew cases, and
bi(*lk more directty canc^ned ibe king-
immedintely, in Kis revenue, or the
Jhitli were msrs of iiu gr«ut consequence,
arh wl)t«niti the law niukers, in making'
JA^^ Hiiuht beeiaily inideriiiTood iwt la
^' » abridge tbe kin^ of his power, but to
m fttihtr f)l laiKiur, and to piu thing*
cutirse, which yet the king*
>, i*' he were no minded, and
cc<ntiu>«jly signity his pleasure, by
I cXjireAS Non Obrtunlc the act of
tlic contrary, and making parti*
bentiOD <vf th^ net ; * UnuBc^uisque re-
I potest J uf t pro se introducto.'
^ cases where there t« no disabitify tm-
' nn a person hy the act, but only a ne«
jienalty tjivcn to the king, and tor*
i |}y the subjf?ct, tranEgressing' the act,
iit king is * Creditor pcenic ;' it seema
lasonaUe that the kiug^ may dispenfe
i penalty that will be due to himielf*.
ie« ood Hucii hke, arc the mily instances
1 that great Case of 2 H.7. *
to dj«|ieQse with an act of parliament,
I a cane of the lit^rhest coDcemroent to
lie tluit can be, wherein religion aod the
netkt are so deeply concerned^ and
the kiti^ him'^elf, and the parHament
loaght tit to distible ,^ny person to do lo
trary, and so pronounced rf, arn! bfive
incapacity upon jier^ons, and adjiidgfed
Redone lo the contrary void , thi« hath
atler times, and hut of bite found out
iKed, and la not warranted hy any pre*
rhall rite some resolutions to lliii purpose,
the kin^ cannot disfieiiiie %vith diiiabitities
office contrary lo ihe statute of 1^. 6, oor wtta
one Biraoniacally prusentfiiL to huld iliat Ivrlng^
or to be nt any time afitT lo it ; nor
with any ot the Houaic on « tot to take
the oalh 4>f aUefp«iic«, occoitlin^ to the sututa
of 7 Jac. 1, c. fl. Because (says he) the personi
were made incapable to l»old such office or
living, and a person incapable is a dead per*
sou^ and no person at all, to that wherein hft
is incaiiable.
And a member of tlie Rouse of Commons Is
by 7 Jac. * Persona inhabitis.'
1 Inst* foL 120. Jn the case of the 8im<inifit|
air £. C says« the act so binds the king, as Uiat
he Cannot present him that the law hath dis-
abled^ for ever affcer, to be presented to thst
church. The words of the act be : ' He shall
* be trom thenceforth adjudged a disabled per-
* son in law, to hare or enjoy the same bet»e-
* fioe/ And the party being divahled by the
net (says sir E. C.) cannot be dispensed withal
by any grant by a Non Obstante, as' it may lie
tvhere sny thing- is prohibited sub modo^ as UfiOli
a penally*c^tven to the king.
The case of sir John Rennet does not at all
contradict these authorities. It is Croke, Car.
55. Hir John Bennct by sentence in the filar
Chsmber, was made incapable of any olfice of
judicature for bribcrj, Res. by all tlie judges
and barons, that by the king's pardon, all ina-
biiitiesi iiri? discharged, hecau^ie the sentence
could not tike tiie office fi-om him being free-
hold, over which the Court had no power.
isi that after so often declaring by several
acta of parliament, grants, and patents made
contrary to their acts to be void, and all dis-
peOB«tiocis, and Non Ob^itantrs, to the contrary
9f tbt h\n made by them, to be void, and in-
flicting penalties upon such a« should obtain
those grants, and Nou Ohttanies, or make uBa_
of tlHsm as antifiAJra bv a multitiida of i
1231]
« JAMES n.
deg^rees, it grew to be intolerable and un-
limited : 80 the like may be obeer?ed iu the
use of this prifrofifative.
d. Instit. fol. 236, in the chapter of pardons,
bv divers actti of pailianient, the king's power
ofgpranting charters of pardon hath been re*
•trained, as by 2 £. 3, c. 2. 10 £. 3, c. 2,
14 £. 3, c. 14, IS R. 2. Stat. 2, c. 1,
these are ancient stntutf^s. It hath been
conceived (•(ays sir £. €.) which we will
not qpestiou (says he) that* the king may
dispense with these laws by a Non Oh-
atante. Yet sir £. C. there declares, that
he found not any such clauses of Non^ Ob-
stante, to dispense with any of these statutes,
but of late times. This shews that it is a
growing mischief, and had not been anciently
used, as it ought to have been, to make it a
good prescription aqd prerog^ive.
I snail now examine the authorities and
cases tliat are cited in defence of this preroga-
tive and power of dispensing with a disability
imposed by act of parliament ; for I do not
purposely dispute it in dny otliei* case, but as
they are coincident with this.
The first that we meet with, is that of 2
H. 7, fol. 6, and it was by all the justices in
the exchequer-chamber. The case thus :
Kin^ £dward the fuuilh granted the ofBce
ofshenffofa county to the earl of North um>
berland, for tlie life of the earl, and the jus-
tices held the patent good, there being a Non
Obstante in it to the statutes.
Let us look into the statutes * that forbid a
sheriff to continue Jn his office longer than one
year : there had been several ancient statutes
made to that purpuse,f but they all proved to
be of little eft'ect, for patents wei-e still grante<l
to bold the office of a sheriff, for a longer time
than one year.
At length came the stat. 23 II. 6, c. 8,
which recites the former statutes forbidding
any person's continuance in the office of she-
riff, above one year ; and observing the great
oppressions and abuses to the people, that did
arise from it, and how that yet they were
granted contrary to those statutes. This sta-
tute therefore oi 23 Hen. ti, ordains that those
statutes shpll be duly obscrveil. And further
ordains, That if any occupy that office con-
trary to those statutes, or to the oDect or intent
of any of them, he slinll forfeit '200t. yearly,
as long as he occupieth contrary to any of
those statutes, and that every pardon granted
of that forfeiture shall he void, and that all pa-
tents made of the otlicc of shcnff, for years, or
any longer time, shall be void, any clause or
word of Non Obstante in any wise put, or to
be put in such patents notwithstanding ; and
every such person is thereby disabled to lirar
that office.
Nothing could be penne<l stronger than this
statute, and it is a law made by the supreme
♦ 14 E. 3, c. 7.
.9. 1 U. 2, c. 11.
t Sir K. Cotton's Abr.
28 E. 3, c. 7. 42 E. 3,
18 £.3, nu. 61.
Trial of Sir Edward Hales, [1S3S
legislative power of the dMioii, and it exprews
the former granting of Non Obstaomiobea
great abuse, and to be contrary to law. Yet
contrary to the express words, and clear intnit
and meaning of this statute, did all the judges
resolve in 2 H. 7, that bv a Non Obstantt,!
patent for a longer time tuan a year shoold W
good, of the sherifls office.
The king, and both Houses were of opinoi,
that they could make a Non Obstante in sack
case vf>id. The judges are of a contrvjf osi-
nion, that a Non Obirtante shall make xmi m
statute. Here is an inferior court over- ruliof
and conlrouling the judgment of a snpmr
court. The judges, who are but * jura diene,*
contradict those who have the power *jin
' dare,' as well as * jure dicere,' and of coned-
in^ the errors of the highest court in Wot-
mmster, and controuling their jadgmenli.
The statute was a mere idle nup^atory tbisg,
if it were not to restrain the granting m a Nos
Obstante : if it did not that, it did nothiiif.
The king himself alone, (if he hod jpleasM)
could without any act of parliament, hate le-
formed the abuse, by refusing to pass any suck
{>atents for a sheriff's continuing in his ofiei
onger than a year. But the kin^ was sendbk
of the abuses, and therefore willing to be le-
snrained from passing any more Kuch nstak,
and to avoid any impertonity that might bi
used for the obtaining auy such patents, ni
therefore consented that a law should pssi H
make such patents void. And after all, sktil
the king (if he pleases) still make die liks
grants? Why then the act was of no msMOr
of use, and operates nothing ; and the mshs
of the judges has made the act a mere idle vaia
thing.
But the twelve judges in 2 H. 7, haveso re-
solved, and the only use they would allow to
all these acts of parliament is no moie tban
this, that if the king grant a patent to one of
the sheriffs' office for more than one ^ear, sad
there be no Non Obstante in the patent, ibit
then, for want of a Non Obstante, the |iateBt
should be void by thobC acts <»f parliament ;
which otherwise would have been good, bad
not those acts made them void.
But how easy would it be for one that ob-
tains such a patent, to get the Non Olistantf to
be inserted ? and who would accept such a po-
tent without a Non Obstante? and tu uImns
would the Non Obstante be denied to wlioin
such a patent is granted ? the lord Hobsrt,
in the case of Needier against the bishop of
Winclieslcr, fol. 21^0, says, it is denieil H*
none, and that it is in the power of the attorufy
general.
The reasons ^ven by the judges in 2 H. 7,.
for that resolution, are, because the king had
always used such a pren>gative ui dispcoftio^
with the acts of parhament that required the
true value of the lands, and the certainty f*^
tlie lands to be mentioned in his grant* ^1'
lands, and with the acts concerning the >liip-
* 1 H. ^ c. I
Jw mgleoting to take the Oath
log of wool,* and iiiu-doQjn^iof [Dur«Jerf wiiliuut ;
ijHncM luertiimiiDir of die murder*
Tb^<ec«s«^ are uoditnij^ aXike^ but of a trtfliug^
mairipmriuii in res|i(iOtof the act we Im^m in
\d of '25 VkkP, 2. And in tbeie cas^ ilio
jpeofiUy mill forfeiiureH are j^veii M* tlie kinjr.f
I •tid Uit V concern tLe kiiig^'s ^ri>fit only lo dis-
[ pi^ns*^ uiili ihem: but in our case ihe SBrt>t:j
I ^f tilt' ;^N>\i intnent, * cl i»ajn*i pn|jult/ un«l tbe
LM^tainJng ut the true religion et£tublisii€4 bj
^Hbire i^U cuDcerrieil, and so Uio case is not
I^Bt, Anil to compare this witb tboae caseS|M»
Bjmn is roriij»oni*re ninijiin.*
1» TUihi t^pioion and resolution of the judg^ la
li. 7f Uas bei'u ibe fnuudutiua of all ibe like
iiHMis tbtii buve HJiice lb at time been given
■M kiiJK^'s (wjwer of disjieiisin^ wilb disabl-
and iiicap«aciti<>8 iiupoi^d by uets of par-
ent, i'jxiii what ground tbe jitatices field
\Ue latent of ibe sberiir's office, gnod to ibc
rl of Nortbumbc'rlaud for lift:^ dues not ap^
U'heiber becaujie ii bad formerly beta an
ieeof inberilaoc4', and tm wiibiu tbe excep-
m tbe ¥tiktule of 23 U. 6, nr wbetber by
ue of a Noti Obstante to tbt Valines, as
kteUf only arguet, Jor Itie i-eat say notbini^ of
le Non Ob'^ante, Konie resolution! have
n to the eontrary of tlial of 2 fi. 7, as in tbe
thai I €fted of ibo king attain i»t the bi^bop
Norwtrb, bi the lord Hobarl^s lleports, and
case i)i' sir Arthur Ingram, where it was
lUd^ed, that tbe king could not di5|iense
lUi a disubilitv.
Alt! tbe book of 2 R. 3, fob 11 and 12, con-
[«erniii|^ Wiit«rlbrd in Ireland^ h of tl»e king^a
j^wer to dijipense with an act of parJiarnent
r.wbere ibe forteiture is given only to the king ;
,00 it comes not botui: lo our case.
This r&suhition of the judges in 9 H. 7, was
pilie }irecedent and leading case to all tbe subse-
.%uaot opinions, and was the t(.»undation of tbem,
[Und they all ntuiit stand and fall by it.
^ Now'ii will be very evident, 'that tbe king
|ka«i no such poner or prerogative of continu-
K'qg sheii^s in tbc^ir oHices longer than a year.
For« under fa v our, tbe making of sbertia,
|i^«th uol, Jior never did, belutit^ to tbe king^
lKi4iiiher at tbe common law, nor by any aet of
^ptrliameut ; so that all these opinions and re-
^hitJons are built upon a sandy foandatioii}
lUtid bate but * dchile fundamentnm,' and they
J»ke that for granted, winch is not a truth.
Tbe election of sheriffs, at the common law,
#f«U from the very Hirst constitution of the
jdfi4£dom» and by ibe original in£>tit4i(ion of tbe
vernment, was iu tbe freeholders in tbe se>
I counties, ever since there was any such
as a sberif]', and ever since the kingdom
been diiidrd mUi bbires, tliat is., in the
inie of tbe Saxons, (from whom we derive
ost of our common la») and long after their
ipae, in tbe time of the Normans, lili being
leglected by itie freeholders, it came at leiigtl^,
y an act of psrliamenr, made witbia the legal
♦ UE. 3, c. 1, uBi, aB.
t 13 h;7» 8B.
VOL. XL
A-D* 1666. [ISM
time of memory, to be takeo from the free^
holders, and the power of naming and eliusing
{sheriffs every year lodged in tlie iiaiids of cei-
tain great of&cers of state, and so it continue!
to this day j but neither is, nor never was iu
tb<? king.
HJr. Lambard, in bis book de Prlscia An-
^lonan Lcgibus la bis Lemma de Heretocbiis^
ioL ]4T, says, that those Heretocbii wer«
* Ductores exercitus.* (' Here,* signifying an
army in tlie Saxon tongue.) Tlie bame as id
the dialect of this present Dge may be called
lord lieuienanis or deputy KeutenanUi. The
biw of king Edward (which I take to be tb«
Coiifessor) speaks of these fleretochii, in ibesft
words : * jsti vero viri eligebantur per cora-
* mune concilium pro communi uubtat*) vcQui
* per provincias et patrias unireisus ct n<?r sin-
* gulos comitatns m pJeno Fotkoaoie sicut el
* viee^co mites proviuciaruui et comiiaiuum
* eligi debent.* This law mtjntions thii Sec-
tion* as an ua^ and custom.
If the king did not make tbe sheriff, be eoq
not continue him sheriif ; if lie could not j
him ibr a year, he could not grant him (
fice for longer than a year : tne sheriff had hii
authority and office from the election, not by
commission or patent, and that but for a yecr.
*Sir Edward Coke, in his 8ecoud Institute,
in bis exposition of the statute of Westminster
1, cajj. 10, concerning tbe election of tlie core-
nerci Ly the freeholders, (which ever was so,
and BO still continuci) says, there is tlie same
reason for election of sheriffs, and so, aays he,
it anclentlv was by writ directed to |hc co*
roners. [Kl 174, 175.]
Iu like manner were the coDservators of ib«
peace chosen, in whose place tbe justices of tbe
peace tiow succeed, and so tiie verderors of the
ibr rest are to this day.
These were great and high liberties, and did
belong to tbe fretholders from all antiquity,
atid are strong arguments to conibte those late
authors, that will by no means allow of a li-
mitted government, out leave ns under an ab-
solutti and arbitrary power, and who call our
laws and liberti^^, but the coocess^ions and con-
deaeensioos from the regal and absolitte power.
Hir Edward Coke discourses largely of these
elections, in bis eximsition of tbe statute of
* arlictUi super chartas,' in bis Second Insti-
tutes, or Magna Cbarta, fol. 568.* Uy tbia
statute, it is said, the king hatb gnnUtd tg bis
people, that they bare tbe election of their
sheriff in every county where the sbeiiifis not
of fee, if they will. Sir Hd^vard Coke sayi,
by this act, tliat ancient right the people (that
is, the freelioldens) had^ was restored to tbem ;
and tbe words: (if they will) impoit, that they
formerly had it, hut neglected ii.
By a statute made in the next king^s retgo*
viic. 9 E, 9, styled, ' the statute ot sheriffs,*
upon pritence^ that insufficient [lersoUs were
commonly choseo for sheriffs : liy tbai act it
• 28 Khz. 1, c. 8, and chap. 13. See iba
Reports of E. fj iai' Mfimoranyb ^c* ia* sa.
4K
19351 « JAMES n.
is onlaineil, lliat from thenceforth the sberiflT*!
thaU be asaJgneti by ihe chancellor,* treasurer,
t>&r(»n<t of the exchnqiicr, and by ihe justices.
Anil by the stalufe af 14 E. 3, c. 7, liome
chaairc is timilc o( the persons that are to have
the electioo, ami the tlay nnd jdace of such as-
signing of sheriffs IS prefixed » viz. yearly iu the
morrow of All souU, and in the exchenuer
By the stiitule oj" 12 R. 2, c. 2, the iiss idl-
ing of tlif sheriif is put into the hands of more
great officers, who are to be sworn to execute
this trtmt faitlifully, but it in not vested in the
king" all this while, nor nerer was.
It is true, that out of reverence to the king,
these cfreat officers, who had the assigninif of
sherifls, did aflerwiirds use to name three
persons, out of which nutiib^^^r llieyleft it to the
king to chuse one for every shire. But this
was more out of deference to the kins*', than
out of any strict obligntion so to do, and the
election raade by the king, was in law to be
iccuinited au assignment by tltese great of-
Hcers.
Nor could the king chuse any other for
tberiflT ihau on« of those three so assigned by
those great officers, though it is soiuetitneb
otherwise practiscil. And this hath been a rr;-
•otution of all the judges of England, and is
mentioned in sir Edward Coke's Second Insti-
tutes, fol. 559, it WHS in the 34th year of Henry
the sixth, and it is in these words, viz.
* That the king did an error, when lie made
* an I »t her person sherilf ot* Lincolnshire tbrvii
* was chosen and pre sauted to him by ihrjse
* great officers, after the eBcct of tite htarnte/
So that the right of electing shenff*s by those
great officers, we *f^, continoett bo lately as
the latter end of king Henry the sixths a\id I
know of no law t»ince, that' hatb altered I it :
therefore wc auiy conclude, it ii» no prerogative
in the king.
And we may further observe, what plain lan-
guage all the judges used in those ti^y^f as to
tell the king and the lords of the council, that
the king had ened in wh»t he ha<l done. I
observe ihis the rother,that it may be some ex-
cuse to ine for ths plain language 1 am forced
to use in the arguing upon this subject. The
lawyers are not always courtiers, nor will the
subject-matter bear compliments and court-
ship. ' Ornari res ipsa negat, contenta doceri.'
I cannot reconcile this resolution of the
twelve judges, given in the time of king Henry
the sixth, with that opinion that is delivered in
ihe lord Dyer's Renorts, fol. 2'i5, b. and it is
but an ojnriioo, 5 and 6of ijueen £ti;abelli. In
the time of the ptagne, the sheriffs were named
mnd utade without assembling the judges * ad
* crastiniim animarum * at the exchequer, ac-
wording to the common usage, but for the most
part none was made but one of the two that re-
maineiJ in Ihe bill the laat year. Though it
was held, says the Report, that the queen, by
tier prero^tiVe, might niak« a sherift', without
such electtoo, by a "^ Noii Obstante aliquo sta-
« ilr Rob. Cot 4Vr. 1» £. S« qu. u*
Trial of Sir Edward Haies, f IfSf*
* tnto in contrarinm,* which cfoistet tht if^^
tion I now mentioned. It b but aa optmoQ
against a solemn resolution of all the twtln
judges.
i find, that some who !ia«J tranagreswd tijal
act of 'tJ U, 6, and had r *'•--♦ • i-o^c tm
yeiir in that office nf i.: .-r tki
making of that act, did u :
secure against the penally ot
Non Olisinnle from the king,* ; - ^ tiH
act of parliament to indemnify them fori
they had done ; for, by another act
i28th of the same king Henry the »i__
ordained, that the sherifis for tn^ y*^sr 1
past, shout<l be qait and dischof
King and his people, of the j
900/, which they incurred by
H. 6, by exercising the office ^*'^f^
than a year, from the day uv\i uri* r the my
of All-souls, on which day, by the sldtute, i
new election was to have i>een made.
1 have one great authority mone, and that ii
of an act of parliament too, which, in my judf*
ment, clearly proves, (against this resohitimi ii
the twelve jud^^es in the time of 2 fl. 7,) f*^
the king had no such prerogatiTe to disp
with the sheriff's continuing in his
longer than a year. But that the ODiy i
pensing power was tn^theking and psrlii
as I have affirmed, and in the king, wl
special act of partiament shall fur a itme%
enable him m to dispense. And it is i
the time of a wise and powerful fch
won hi not I use his prerogative, where ^
right to it.
It is the statute of 9 H. 5, e, 5
tutes at large, this statute redtcs th
14 E. 3, whereby it was ordaine<!, th u i
ritf should continue in his office nbore |
And it recites further, that whereas
making of that statute, there were dif
liant and sufficient persons, (1 -vt
translated * valiant* and it sJi'
(men of ralue) in every county [
exercise the said office well, towards the 1
and his people : But by reason of divrrvi
lenoes withm the realm, and wars wjt^
realm, there was not now such stjffic
such persons. It is therefore ordained,
king by authority of this parliament of 9^ IL \
may tn&ke the sneriffs through the
his will, until the end of four years,
standing the said statute made'll E. ;
other Ktatute or ordinance made to the i
Here ihe kiiir^ ' ^ ;,..,• *l ^^^
and ihnt hilt fm >ery<
continufuif shtn.^a ,h i.t^ ^ - — ^-
a year, and that in ct oase >
necessitv, :ii>d thiw hv :i *
nii*nt, will
by any \h ^^ i ^m t^.jt(
then he wouid never havetmken iitmdcrSB'l
of parliament.
* See the 8tat. of 0 H* 8, c. IB,
lutes at larg^f cmitttniitig Utt ITtukr-HWi^H ^
Ud»!ol.
,thfl«
tltifl
I2S7J
for neglectiftf; to take the Oaths,
A. D. 1686.
CJ
WhAl {fraunil therefore ihe jiiili,^c« baU rn
> Ibe second vcnr of Heiiry 7lli, to ndjndge it
I k> be m iirerotrtilive in ilial king« J cannot st<e :
and iUmi nwitutioo is the leadtnf^ ca«« to ntl the
opinions that have b^eo ddtver^d iii ttie iMtini,
bape that time, and the opinioria stdi jutititie
^^■niMrlves by that one fire^it re»fdve, and citt
^^Pl iht their ^eal authority : Thai u|>in(un
■eemi to be dehvered ii|Hin a ftudden question,
|>ot 10 Uif? judges by the king's council, not ar-
g'ued nor deiibcruted on, nor upon any ca^ae that
catpe judicially btflore them, and the judges
there take notice only of two ancient statutes,
VIE. its E. 3, c, 7, 42 E. 3, C 9, both which
ksrdy forbiil tho sberift* to continue lon«^er
Abmu a year in their office. Hut no penalty is
*~ i«t ; and the earl of Nnrrhunib<»r land's
bad a Noo Obstante in it fmly to tU^^ar
statutes, as Bp|»ear^ by the abndg^ntont of
it case by Brook, Tit, Pattrnt's caae^ J 09.
6o that tbey did but, ' atl pauca rcapiccre c^t
/ dfi facili prouuDCtare.' But tliry do i»ot take
llie least notice of the stnutute of ili H. 0, c, 8^
which makes tlie disability, nor do the judges
Jll tbat caae^ give that reason for tlieir judi^-
(jntot, as sir E« C\ hath since found out to
Jiitlify it, ?iz« His prerogative inseparable,
^ Soiuething' may be observed frem tlie time
jMrb^n that strange resolution passed : * Judicis
* OJlicium e«t lit res ita tiuopora remra querere/
It \viin 41) '2 Henry 7th, in the t^eg-iuning i>f the
rcrj^ii ot that kiiijr, who stood biifh upon his title
and power (if ^e niay Ixiiieve n late bistoriuiK
Jlln Buck in iu^ ilistory of tlie Life and
li. i.*n nf Buhard ad,) wh" '"> l'i< <^<^cond b^mk,
l(sc<»urses likew; Heury ?tU,
title to ihe cro ^ . ^^1 hini/rhat
led to wave all otlter uik^, and »iuck to
his sword and con<|ursl, ami at hia coro*
he cau<(ed proclaniation to be ronde with
titles, ^ H«'(u'ictis ili'X Angbu* Jure di- '.
¥itio. Jure butiiano, el Jure belli, ^c/ VV h*cli
'#€ the bnron«^ couUl nf>t ttgiee tx), though the
Mily avowed he mi{^ht justly a«»-
HiT )!{( a cooqueror, entered the
Janu, n Ml 14 IK lor tlit* crown, and won it.
The baroufi aniswered {^i^yn the Instorian) as
ptoiily, that be wan beholdiui^' to tliem
lor bis laiidin^^ ;ind victory. But the
they oppoaed it, the tuore he insisted
ipon it.
Ninv that kliiiT that made his title by con-
•Hit to liiuiself what prero-
^ : and who durst dispute it
ik biui :' And ttu^ probubty intghi have
ine influence \jj»ou lliut resolution of the
Uiiifet, being so early after his claim, viz. t
»• 7*
But I find sir E* Coke, a chief juKitce of
rt^ai Icarniu^, and of a» ^T^ai iiite^niy, liking
;p the same opinion t It i» In the tt^poru thul
'p by the namt'of sir Edward tJoke'is, Vi Hep.
i*i. 18- \ • ' n bind the kin^f
him any , . m\c and in»e-
I Ui .,... jr^i-wM, .'..«^ .u4t he may dis-
with It by a >ioci UbataiiU*^ sia a iOT«'
reign power to command any of his subjects
to serve him for the public- ^veul ; and be in^
stancei^ in that ul a sheritf, and qnutea the reso*
lution of the judges oj 2 11. 7, and urue^ that
of juilges of assise, that they may g-o judges \
of as^i^e in tlu^ count iei where they were bomi
or did inhabit, if the kmg diBpeuse with it by % J
special Non Dbst^ote.
But he give.-! another instance^ wliich I pre-
sume notie in these iUyfi v* ill subscribe to ; nn«|
if he mistook himself in this instance, he may
be supposed to mistake and t^rr in all tha rest;
Purveyance (^tiys he) lor the king' and hiv
hou!»ehold is incident solely, and uiseparAbly to
the person of the king: And for this causc'the
act of parhament of [lenry 3d, ' de lallugio
• non conccdrndo,' which bars the king^ wboflj
of purveyance, in {^ys he) void. If this be
law, what a case arc the subjects in, that ha^ve
given a recompcnct? by a revenue of inheri-
tance (in part of the excise) to the king, iti liea ,
of purveyances.
It is I '
sober advice given by learned Orotiut,
in his book « De Jure Belli et Facis/ m. 1^'
us not (says he) approve of all things, thougti
delivered by authors of greatest mime, for tliey
often serve tlie times, or their atl'ections^ and *
bend Ihe rules as occasion require!*. ^
Thi» resolution of ;i1) the judges, in the 3d of J
Henry 7, is again cited in Calvm*a case, in Fif '
Edwurd Coke's Huventh report, and there •
reason is given to justify that resolution, which
is not so much as touch 'd upon in the report
itself, of 2 H. 7, but it ban been ntudied and
found out since that resolution, viz. TUitt ait
act cannot barr the king of such strvice of his
subject, which the law of nature did ghn hint.
A (id this it the maiu reason insisted on in
the hue judgment given in sir Edward Hales*g
case {m l am iutbrmed); which is the only <
ca^e, that I find, which came to be ai^guetl '
upiju the very point, yit it was but lightly
sjioken to, for that of 'i H. 7, wliii h is the first
of the kind, was not uptin a ca^c tliat camo
judicially before the jiulges, but was UiMin a
consultation only with the judges, and without
ai'guinent.
Nor in any other auiborities that I have
cited, grounded upon that resokiiion of 2 H. 7,
did the pomt directly come in question judici-
ally.
And Calvin's case is the 5rst that I tiiid»
which offers this special reason, viz. That no
act of parliament can restrain the king from
commanding the service of his 8ubj«*ct, but it
is an inseparable jirerogative in the kmg ; and
as %k E, C. speaks in his 12 Rep. Though an
act makes the kind's patent %oid, and though
the kin;j;^ be restrained to grant a Non Obhtiintei
by the express ivonls of the acti and though
tht* grafitee h dis&bkd by the act ui take the
i^flici', y«:t the king (says sir Edward Coke)
may by bis royal sovereign power of com-
manding, commaofi a man by his patent, to
serve him and the weal publick, in the utlice
(ff sheriff lor yeurs, or ibr lite ; And this the
king may do tor such causei aa be iu his wiadono
lfS91 S JAMES IL
shall think meet and profitable for hinmelf, anti
the common- weal, of which he hiraseU' is
solely JHdgfe, says sir E. C. So tlibugh the
king and iiarliument hate adjudged and de-
dbtred by a law, such a person, or such a sort
of persons to be altogether unfit tor such a ser-
vice or office. As for example : They hare
adjudged Papists (who own a foreign autho-
rity and jurisdiction, and who hold doctrines
destructire and contrary to the religion esta-
Mished in this kingdom) to be very unfit and
uncapable of being entrusted with the main-
taining of the gorernment, and the religion
established by law, in this kingdom. Yet ac-
'cording to late opinions and resolutions, though
the king himself by the advice of his grt^at
council, have so adjudged and declared, yet he
Hiay do otherwise, and he may employ a Pa-
"pist to defend the Protestant relieion ; and he
iR the sole judge of the fitness of persons for
his service. This is tire discourse, this is the
armiment and reason used.
• Will this reason he allowed of, shall the king
lie the 84>le judge of the persons fit to serre
him in all eases, and is it an inseparable power
^id prerogative in the person of the king?
f shall put a case wlierein the judges depart
from this opinion, and apfiear to be of another
tnlnd.
In the loni Andekwn's Reports, the 2«l part,
118. It is there said, if an ofiice in the King's
Bench or Common Plees be void, and the plac-
ing of the officer 'belong^s to the Icing, if the
Icing grant it to a person not able to execute it,
the grant is void ; as it is there held by many
of the justices.* And there a case is cited out
of 5 E. 4, Rot. 66, where one Thomas Wynter
was placed by the king in the office of clerk oi'
•the crown in the King's Bench.
The judges, before the Win^r himself, did de-
clare him to he * liihalnlcin ad Olliriuin illud
* pro commotio Ue^jis ct popiili siii Kxerccn-
< dnm,* and he was laid l>y, and one Roger West
(at the commendation of ilic jndges) was put in.
Will any man presume to say the person is
unfit, when the king, who is tiie s'olejudge ofllie
fitnc s uf persons to serve him, hath adjudged
him fit ? yes, the judges in a case that con-
cerns the eo!irt-< where they sit, (it seems) will
coniroul the kin«;'s own judgment, andjnd^-e
X\w prrsim inhubiUsy and hold the grant void
in such case.
To compare onr present case* with this: the
king and parliament hy a law have adjiuiged
the Papists noiil to he entmstcfl with the go-
vernment, and with the preserving of the re-
formed religion: biit (»:ays the jiuiges) if the
kini;, wilhoMt {\h* parliament, jnd;4;e otherwise,
his judgment shall pievail : why not as wel
in i\ie c;ise of an olfiee m the eomis at Wesi-
ininster, which (h»es belong to liie kin*'' to dis-
pose iA\ as in an oihce that immediately con-
"cerns the safety of the king nnd kin;j;'dom and
the gn at e.<»niVnmieiit of religion?
So here is one command of the king^s set up
• l^aliner's Rep. 461.
Trial of Sir Edward Halet^ [1910
in opposition to another command of the kiag.
A command of the king upon private a^ica,
or (it may be possible) ^wed froa bin hf
surprize, by an importumty or an ondiie Mk-
citacion, against a serioaa soleinD deKbenli
command of the king, upon advice with 4iii
great council, and with the conaent of lit
whole kingdom •; this is the very cue before «»
This is a^inst all reaaoo, and agminsl lit
examples of the greatest, wisest end noat ab-
solute of kings and princes, who uuiiimsadii
their iudges to have no regard to any conh
mauds ot theirs, that were cootrary to law.
Vinios, the civUiao, in hia ComnieDlBry oi
the Imperial Institutes, fbl. 16, givea this rak^
< ReScripta principum contra jna vel utiNtrtHi
* publicam, elicita 4 judicibaa improbari cdsa
* ipsorum tmperatomm coostitutioDiboB ja-
« bentur.'
' Princeps non creditur,' says be) ' a^ail
' velle contra utilttatem puUicain concedere,*
91 H. 8, e. 13, sect. 10, 11. «7. ]>iapeBn^
tions for pluralities, contrary to act, era de*
dared to be void. Hob. 82. 146. 140i 15S.
The king is never by law aoppoaed ill afboM,
but nbuse<l and deceived, tor ' Eadem fi»
*^ somitgr mens'regb qusp est juris.'
Grotius de jure belli & pads, 113, 111
Amongst the I'endans, the king was auywi,
yet he took an oath at his entrance, md it wm
not l«Wf*'ul for him to change certain lawemadl
after a particuhir form.
1 f the king establish the decree, mnd sign thi
writing, it may not be dianged, aceordhig H
the law of theMedjeb and Persians, which al-
tereth not, as we read in the book of Jtaaid,
Dan. vi. 8. 12. 15.
Wy the act of S -E. S, c. 8, it is aooovded «sd
establisheil, that it shall not be commandedlr
the great seal, nor the little seal, to distnrb «
delay common right, and though «uch fom-
mandments do come, the justices shall tfH
therefore leave to do right in any point.
Grotius ubi supra, 117. Antiochus tfas
tliird, sent a rescript to the magfistrates, tbtt
they should not obey him, in case he siMsM
command any thing against law.
And Constantino published the like, tbtt
orphans and widows be not constraiued tocoRM
to court for just i'je, no, not if the em{)ersr^
rescript be shewed.
In the story of Daniel, we read, tl>at kio?
Darius signed the writing, and the deeref,
which indeed was hut a snare laid for Iteniel,
and Dauiel had fallen into the snare : the bofT
was his friend, but could neither dispense aifb
him, nor panlon him, though lie were sore tlis-
p'eased with himself for signing the dfcivf,
' And the king set his heart on Dauiel tode-
* liver hiin, and he laboured,' says the history,
* an whole day, till the going down of tlieMS
* to deliver him:' he Wanted sudijudtfe; •>
Candiyses had, to find out an evasion ; Iwt the
king himself sealed the stone that was laid iifM
the mouth of the den with his own signet, id«1
with the signet of tlie lords, that the pwpi*
might not be changed ooneaniiBg UeoieL
19113
far niglgeth^ io HAe ihw Oaths. A* D. 168«. [ISit
* HibBopM Ml' iwy« a Itftraeil auilior, wcii-
nf rii€(jnv*rfi«fieH^ <>t r "l'UikI, * iiitentiiMti
inaiiili in xc^t. itontmm quiequid
f^fHii: vci minus ex popiii > i
[II - : It utrtiim axtoma mpud nos-
' IrftUsrex »uiMtuu4ij potest <ermreAfit cuiqiiRni
* iiijiirinm facere qnippv in ad [iiin Utri*s Sc cuu>
■Mtaritit i^oorum e^t aflmoaere pnncipem in-
HKoi^ voletjrlif detiR^Are aperaitii aatomciu re*
FMftiouu^, pniiuj^nam uonlra leges qiuci|aaiTi
'ja^onli jmrtTB tain culpa oiDais quam pacna
• derirari solet & (Jt»b<?t,*
AikI we bjAve seen examples of snob in our
niAny that bare iel\'fpo«d placei, rather
ib«S) act a^miit their juUgmenta^
Tiien: ta ^ rare exumpte ei' tlti< tn the Fretick
Lewia ilie denenlh, kin^ of France, at the
pap^'n inifWynunity, bad tigoefi a canconkte
liir aettin^ asick' tht pra^mnficsal aanctiiiii
which IV d« luarte in cletbtice oi'the tibLTlies uf
|[h« CraHirnn rhiircb, ami the kio(; had Htiikr-
^' '<^pe« that his pnHianietitt alioiiU
iai W Imd liurie, aail the king
a r:uutaaa<l to the piuUaments scscoril-
ntxl required tUein tn u^ivt a piincitual
t« kmor*]> '"' ' king'* flkdvjooikle,
KoaMiHi t«iiity ai^inil k,
Mrmt tft»Mlaimf v> J rt- tamed oiit«f Iiib
fjtt«ttf«r kiN pains, he Jaid,
' "^' had fr^^ly hefftowed that oflke
he ^vouid diitoliarge Vl fuithtitUy,
«-f»iiUnuc
. duvvrit
woidd
Ihing
hoyour
d i>at he
* auttVr ikli ihiiigi, raittMir ti^
* againttt hi.*i CJUMSttmo^ «n- iij<
^ a«id tiie (^>od ol the btngdouii-^
|tuiHb^:»* ■\ tbitte ^hat ar|^c ii»r
Ulie'pfvrDKativ Lwiuf^, thai thou|^i the
'Icia^' fviihciut tilt; |>u I hamentf cannot diixolvf*
tiar rrpeaJ, nu nf»r %o luueh a^ sn^iiind the law
tula 1 1 1 1 hut fur a tiaic, hui he iDay dts-
(p^i ^ to »()ttie (lai'ticular m^q»,
nI hmit^t lirnr, and aoihe uivr «iill
ill I farotj aspBiJiflt all iitfa«rj».
'ii,,-. k,..,i w'ril ar£;;^u(^ thus, do t^* i*'^'** ''-"^
itlie kf rt^ i« llx' %i»k- jud^e who are t
ieil iMtii^ tto that he in tint hin«ir<i i' .-: .
iter, nar Io any liniij, »u that thutt|(h he mmy not
lla tilicLfrni!» dijJiH fj»«e widi Uie law, yet hr docs
retail, ^bich rumes aU lo
»ya! wilf :iml p)i?ar>un- lo^lo
tlir^iid|jf«ait
<Mic . . moilemlioii.
•Accijuhji^ Ui thai »(ii vol lit^ujtieni ihat is
calM*
imlurlio;* whii^his u * |n;
I ti( uiuinluuind
' UrJlMftit^taJdiat. orthelttghtauf Friiic<%,
UO. ^Kj«ff Jaaiea in bia l^enujiiition taall
CtitMUAO Mourch«| 298.
4
oae, does io truth dispense iviih the vhole al«
phalHft ; bu* i«*' tnua ji.^r 4*i to Uim Ictu*
And «ie i ^uoe. What ii^aiff
thi»se seveifii ^ i uuenl that torbid •
jud^fc of a^siiie to e]c«<>ii(e that athce id tha
cuurvty wb^fre he wits boru or dvv^fjls, they are
ca«dy uad daily diipei^td with ?
l\ow vuan^ at t!i liave b<»c(i made agiiiMI
paitloiiin^ oi uuirder, and to itiake void sacb
piirdons, and what tiiut have Ibey bad f helt
UK hear a leoj-ried jud^e plainly itpeakinj? hid
expenencc apd his luiiid in it : Stamford, in
biii pleajg of the cravvn, lol. 10 i , bayis, that thoi^^
thf re are woriU to null aud lusike void tbeae
charters of (lai'dou, yet by puUiitg' i&t4» the char^
ters of jMidoii these wi»rds, viz. Noo Ob-
Ktunte ^ nhquo g^tatuto in trariuru Kdito,*
the force of these atatulea is takoti nwa^, ao4
m*t only of il.t'sr (-iays he) but also of alt
others, ui \\ i lause *d'Non ObstJinte ia
put, and k I ^ v ; * he) in every leitcrs p*-
cetits.
Aad fol, IDf , be aayt, that tlie fttattile of tS
E. 2U «iat« 9, c. 1, aud the re»t of the statuteg
to \\m aanie titfect, have always been destroyed
by the clause of Noo Ob^taale ; ami so taUa
^vuggcftioiis have coutinaed, says he, to thia
day tvitiioat rt^lres«, ami abound i'rum oiic <lajr
to uriuther, to iha ^reat detriuicm of lli£> puU»
lie weal« mid do not ceaac till princes mvm
more rc'irard what L'hartiri» they paas ; and be
might have added| till tl^ kinq:^s attorney and
comiKel at kiiv aball have luore tidelity ajid
I hear, that in jualiOcation of anch a ilia-
ppiis jtii.ji lis liii,. t'. Muk*; iifl iti the ar«/^Hiai> ,.i nf
t dtg, in 1 1 i
i is no [aw
I' with by tl*e*iO|i
;. f God may bt 1
wuU Jjy titHl hMii«eU, aa afii^H^r^ by Gwi'iB
coinuiaiiid to Abraluiiu, to aavritice hi» aoo
iMiac.
l8o iikewiae may thelawi «#f man bedia*^
pensetl iviib by the «iupreMie ie^^isluior.
J tutly H^ri'v to iitin^ uud ha^e aheadv ar* J
i: ' i lhu!» |iiound» That the U^iabitcira J
i«£r) can ditepe«iae with th^ir own
iu^i>. uiiu 1 ttave ,^tveu feeverwl lo^tntict)* and I
e^atnplt:!* ivluTein u Mas so practiced; that 11,4
I- t- -'-t ^'"u*nt.
ty the prr^etit dtapnma j
, L.. . 1 «)^r«r ihr km-. iiatii#^
l^rtataMfl inosi i umieot part in ,
aadiiithc pa^tiu^utlawi*, It u^ ii , ^4
tUe-euibritt, and tvrst |>i«es it lih^ but uiidiu' ta« ]
vouTf and ^Uh alt due revert^Kcto the kmg, I
1 tnay ithroi it. That the king hath nut tItttJ
sole It i^uUture, sntdi as Ahuiuhiy t^od b.iili j
ofc r hia ert'uturc^. but the wliole kingdoail
hatli a Nbare in tiiat .power, aa 1 have luMj^'i
provtd, an wt^ll asi Ute kiug.
I ^oold uite one taKe* iiol ao ruudi to |Mtt
what I Ua\n sMid herein, hot rather to tllu»traia1
it; Jtwa^aoaae in (IdL it Ja^« B, li. Uo
ID in us Hex, aud Allen againit Tooly, in tl*a
second poi-i of UkibtriKk'a Heports, JtJ6, to
1J45]
2 JAMES IL
Tritil <y Sir Edward Hala$
[t?44
191, in an infonnation broti^lit upon the sla-
lute of 5 Elisc. tht using- ibe iraile of an op-
holfilefer, in wliicli he had nui furred as an
appif cilice seven ytiars. The defendant pleaded,
Thai he wat afreVman of London, and that by
the custom of LuiuJun, a freetnnn mighi use
any trade ; and he alledged that ihe custom
was ocinfirmeil * per Regem in Parliamenlo/
It wa^ hoMen iiret, ihat there can l>e no y^ood
•ct of parlianoeot, without the three consents
visfi. Of the kioflf, lords, and common*, 2.
That lhon{jh divers nets of parham*?ot do not
•necif) lliese three assents, l»ut only meation,
the king as * I>oininu« Ilex Statiiir ;* and as it
is in the piince'scase* * Dominus Rex deCom-
' muni C'oiicilio Statnii (and ihe like): Yet
when ihe party will plead, he ought to pkad it
according In law, and to set forth all the as-
fseiiU, thill i<tf of lite king, lords, and com-
moDs t And this was ihe opinion of the whole
court. No^v pleading is an exact selling forth
of the truth* We are not to raise argumenls
from forma of speaking, hufc rather from eiacl
ptfading. and the rpfs^dntions of judges : And
though Magna Cliarta in the stde^ seems to he
•poken hy king Henry 3, as hy the word (con-
eeuintut) ; ytt the act of 15 E, 3, c* 1» re-
cites Ihat it was made a law by the kiojg, lords,
and ciMiimouif, and that what is said to be
gmnted, was 1 utiheir former right. Lambert's
Archiwi, 267, &c,
1 hear, that in speaking to the case of sir
Edward Haleii, it wasobierved that by this act
of *iS Car. 2, there is no incapacily, or disa-
Uilily at the tir^t^atid upon the admiiUion to the
ofiicc put upon any person from taking of an
oflice, but that he is well admitted to it, and
the grant is goo<i, and that time is giren to
take ihe tests, and if hy the limes given
he fail to take them^ then he is to be disabled,
and the grants are to become void, but not l>e-
fbre : Like a condition subsequent that defeats
the etitate, which yet was well vested ; and
then before the grant is defeated, and the party
become dis4ib1ed, the king^s dispet»sation sle|>&
in and prevenu the penally and disability :
And herein, it was said, it diners from the case
of syinonyf and buying of offices, where the
interest never vcfted, but the person was first
disabled «
There is indeeil a diBerence, hut none that is
material, for it is all one whether the part? be
disabled to take, or whether having well token,
and been well admittt>fl, he is afterward dis-
ableil to hold) and retain, by not performing
the coodittOD : For when he is first admitted, it
is tub modoy and under a condition, that if he
fail to perlbrm what the law requires, his office
aha II be void«
Another argument, as I hear it reported, was
raist'd fi'om the king^sbeing^a sovereign prince,
and from thence it was inferred, ihaChe might
dispense with taws that are penal upon oecea-
silv, whereof he is the sole judge.
Yhcgriiundot this argument, namely. That
the king is a sovereign princa ; if it senrt
lor ihe pomt ia ^ufiftioOf it may also ei*
tend a great way further tbaii t<:r ihis quotba
we have beiiirc itS| it is hard to Uniit iii« eztnt
of it, it seems tt speak tltat we mogt obtj
without reserve.
ThewortI sovereigo is Freu^ L&tis
is * Supremus, id es^t <iui in 'tateta
*habet:' The corit' htm,
or a subject, and is at I « . * » ^tac
sorts of subjects, csp&ciially to tht; hi»ds at
superiors of rdigio'us orrlrrs«
But among u.s, tbougli now r \ usrd
io our humble addresses to the ] a uur
reverend mention of him, yet we tjud ilHBf. J
rarely, \\^ ever, used in our ancient acts ofifK I
tiament, or in our law books.
I tind no mention of the very word auioii^-
the many attributes and titles a"**-'* -^-^^ v^ kif^^i
and f»rincrs, in Mr. Helde&'s *V\\ ahu :
He halh that which is synoniui ^.rcnir
monarch, as it signifies in oppri- Aw-
tinction Io princes that are ^i< i c iuil
feudatory, such as Tacitus spfsaks ot, that ■
the Roiunns (when their gov emment was po« I
pular) had ' instrumenta aervitutis« fleges." '
But properly he is a king that is a sovereign,
and halh no superior upon eorth ; accordiii|r is
Martial, * Hex est qui liegem (JilajLime) dsb
habeat
And such we freely and clieeifolly a^*
knowledge the king to hc^ and tbo beaiaad
most of luH subjects do swear that ht m
the only simremc governor of t! :- - -'m, m^
of all otht^r uva dominions, as h « ' vjuri*
tual, or ec(!le!^a^tical, as tempoi^^ ^«w...^iBA
that no foreign prince hath any power itil^h
this realm. And I wish that all th<' rMlnf
his subjects would heartily take thi^*
this amongst others is that which hu <
Hale's dis^iejisation extends to.
Vet how from hence it can be argued thai
the king c^u dispense with Ins lawsii, 1 clo oot aee.
I mean laws of the same nature as that wc
have now before us.
Therefore thuse that used thia arguiaeil
surely meant the word of (soveraigu) lO an-
other sense, viz* ^ Absolute et Solutus a k*
* gibus.*
If they mean by (soveraign) a prince that is
*■ absolute,' ami ' soluius a tegihus^ (and thtf
must understand it so, or else 1 do tMil Mfthm
it is pertinantio the present M...itf«.ini) ihiAofi
mighty conaequenoe, and liavebeA
well considered before it ha ^ L
1 tind the word in this r '
propounded in addition ur «
of nghl, 3 Car. 1» viiE» Not
power : but it was noi likt^ii
ipvva at a conference, those thai Uy
It were satisfied to lay it aside. I ^
read in ihe tneinomb of the KugU&U aiULfi*
fol. to*
If the word (aovereign) ba r . tbii
sense, it la opposed by all out a u«.
jodgea, and other- *tv 'no ami toiprc^v U«*'
guage, whose v i uga 1 bare hS>i^
ciied, and I will ^u; v^i^ touch opo» tlttit
again*
15453
Jbr negJttiing fa take the Oaiki.
Fl«ta nvs. * ^upericireni nun habet Rei ia
•• H'-RDO nisi lletim ei Legem per Legem factus
:♦ est Rex :' [L. 1, c. 5.] Thw fully expounds
• iTcrci^u.
t:i •(w1 Bract, and sir Gilbert Thorn-
is elticf justit!e in Ertw. the rtrst^s
li notice oC thai ; * Jua,Ctesariura, or
* L , --- ^u*, ity it is called by the civilans,
* Nf'c ohstmt quo4 dictur quo*! Prindpi placet
' Lf^\fi habei viiforem:* For it never was re^
iM^yvd ill England, but in a restrained sense.
^ And with this agrees the ancient coronation
'•ath. That the kimr §liall bold the laws and
cusloms of the realm, which the people haire
«lMMen, Uut kinj^jf H. 8, with bis own hand,
corrected the old oath, to the eflect follow-
ing', vt^. That he shall hold the lawa and
eastomis of the realm, not prejudicial to his
€n>wn or impf^t ial Jurisdictiaii : the ori^na]
of thi9 ciirredion is in sir Robert Coitou*s
library,* See the history of the reformation :
sir John Fortescu^ sometime chief justice, and
mflrrwmrd^ lord chancellor, in his book * De
* Lau<lilitisl>e^''urn Antrlite: The civil law (says
be) runs thus, Quod priticipi placuit let^s vi-
i * ^f m liatict, sed lon^'e alitor protest, Rex
^ politice impetans quia nee Le^ea sine subdi-
^tamm asbeiisu mutari poter it; Potest as
* rciffia Lege Politiciacohibetur,^
* fifirEdwani Coke, in his 13 Rep, fol 53,
04, and 6G. isayn) it whs ^jreatly marrelled
tlimt tlie arclihtslitip Bancroft durst inform king'
/ames-f that such alNoUite power ami nuthorityi
(as ii there mentioned) belonged to the king, by
ibis word of (wkI, and there sir E, C\ cit*f» the
asijings of ihesi' ancient aulhora in onr law i
but he says ifiai the kiag^ was greatly offended
with him,
A learned civilian frives some re*.trainl even
to the ♦ Lex Repa* in this point : Vinius in his
«(irumef]t upon the Instit. fol. 381, * Populus
* nonkuiMiK ^itra Majestatis omnia abdicalive in
* ; ttaustulit, bine Principes Romani
* L V, kiiiti fuerant/ Bui he utterly op-
^iMea timt opinion of the achool-men : * Prin-
^^^^pem Lefj;ibussolutum esse quoad vim coac-
* ttviru aed etiam nuoad vim directivam.* Hot
Pari. 11 R. 2. Tne king and parliament de-
clare, that the realm of England never was,
nor was it intended by the king and lords, that
«ver it should be governed by the civil law.
In rhe deciding of the great and royal con-
iraveraie, in the time of K. E. t. concerning
right of succession in the crown of Scotland ;
it wa» debated by the commissioners, according ,
to what law that case Khould l^e determined by, '
whetlnfr by the law of En;r|and or of Scotland, !
the civil law, as being the ' Jus gentium,* be-
fore tHe king of England, as being tlie superior
lord ; they all at last concluded, that tbe civil
* Archbishop Laml, too, did the like,
^ King James 1, in his Speech to
both
Bnuff-^, i60{», in his Works, fof, 5 3 it, says the
kin^- wjMi his parliament, are abaohite in mak- I
iln ' iitr of any aort of laws. Sir Walter'
Ri _ ^ _ liist* of tba Wmld, f©L 245*
A. D, imS* [H16 ,
law by oa meana abotild be admitted : * N^
* iude Majestatis Anglicante Juri fieret detri^
* m entu III . SeUI . dissertuti o atl Fletam , * 5 S 9.
Mr, Selden , ra en t i ' - ^ U n of Salisbu ryJ
who said^ that in hi» were those tha^
,f;,i "»'^«-.r ihe civil Lv*. o^i.^.tiall other laii
, tliat *■ de ab^lntu principia pot<
„.: Lj.i„ m lege halietur Ktfgia ;' «e says
was meant of none but ■* de asscntatoribus ilUu
' ii«ecuh ex guucre Hicruiico, nou de gent^
*■ Anglicana aut de aliis qui JudiciLs tuncprn
* fuere,' it would have been far from any of tlu
English nation, especially from any of tb^
Judges to have muiutainedany such opinion. *^j
But let it be nnderiiood (* sano sensu') an^
in a proper and jliteral sense too, and it is verjf
true and agreeable to our lnw, * quod Regi pla^
' cuit le^is vigurem hubel ;' without the king'j
placet, and liis royal con^nt, noibtiig is lavT
amongst u^;. The la^vs already in force havf
had the consent of bis pieikcessors, and nfl
new law can pass without the royal assent i
nay, they are his royal words, ♦ Le Roy
* veut,' that first gives life to any new law.
And the judges oath in the lime of H. 5j
was, that they should judge ^Secundum I jegen
* el consuetudineni regui ; v^hich words (a
Mr- 8elden there wys) sc«m desigoedly to ex
elude the * Jos Cicsurcm' then lately brougb
in : whereof, as he says, some were fond ia^
those times ; and he tetis us of what order]
they were, but they were not common lawye
nor judges, but the hierarchy,
Bui should judges give coimtenance to anyi
such law in tbe bttlude of it, they shouhtH
be put in miod of what wa^ done by king Ed-
ward the confessor, which we are tauvjlit b j 1
sir Roij^er Twisden, in his preface to the law §7
of William the first, annexed to Mr. Lnmbert^i']
treatise, * De priscis Anglor' Legibus, fol, 155.* '
^ fhnnes (says be) qui Leges iniquas adtnvener«
* ant St injus'ta jurliciijudicaverant multaq; coih I
* cilia contra Anglos dederant, exiegavit :' sucl^i
enemies to the laws of England should be puM
out of the protection of the bws of Engiand^l
* Rode caper vitem, i^c'
It ia said amongst tbe laws of king Henry th^l
first, c, 28, (and it is in the very body of' that J
law) Lambert, ibid IBfi, * GravYus L'acerantll^1
* pauperea, a pravis Judicibiis, quam a crnentit ]
^ hosiibiis.'
The lords of parliament, when any attempt if ]
made to introduce the Coesarean law^ (as one
in the time of k, H. 3. there waa an cn«
de^tvour to hring in part of the Pontificism 1
And il was by tlit}bi'ihop!^, I make no doubt \m%\
they will answer * Una voee,^ as there ances^^ 1
tors then did ' Kolumus Leges Aniflioi tnuti
^ qilie hucu^i ; u^itatie sunt et approbata?/
statute of Merlon, c 9. $ Instit. tol. QG.f
The act of '25 Car, 2. one of the principal J
end A and aims of it is, to keep out that forci;^^ |
power, that would pretend to a soverei^^nty oc
supremacy over our sovereign, but the dis* ;
• Seld. Di;«sert, 53P,
t UaU. Difltftiai. ad FleUai, foL ^U
1847]
« JAMES ii:
TMat of Sir Edantrif HalMt
jaensiug with this law (which is nmiiitaiDed to
be riglil focidefit to the sovereign prince) sceiu^
to he the likrliest way of 8i»ttiiig< op again tkat
pfctpftce and ctaini of a fbiTt|pi biftbop, whirh
was so long- osurj*p«l, amtacrainsrwiiich preteoce
aomany tct^ of pArliatttcnt haveb«eit mukp^ and
which our anck*t>t kin^s did of old utfeHy re-
nount'e and disclaim ^ aod we know the aaine
fbreiu'ji hishop hath made another pretenoe to
Engiaudf b<?side8 that e<^clesiastical fiOfW«r,
hy colour ofa resigontioo, made hy kiag^ John*
But kin|^ Hen. iS. scm and next luccesaor to
liin^^ Jobo, ill the central cx^uncit at Lyons,
anno 1345, hy his amhajsaador and a^ocal«,
timtlc a special protestation acfainst thai pre-
ttoded resi^tmtioQ made to PaDdolpliua,^^ the
Po|»e^s legate, (Innocent the third) as a m«re
nuHity, * In <jaod numpiara eonsetiHil iC^ni
* Uuiviii'sitas/ and afterwards U|mn the Pojie's
issuing out of process a^in^^t K. E. 3. nud the
whole kingdom, for the homage nnd the ar-
rears of the 1^000 marka rent due to hira.
The parliament decfared, That king Johnf
nor no other, could put hiiimelf or bis realm^
into aoch a subjeetiont withoat tJieii- consent.
And that it was o^raiost the oath king^ John
hftd taken at his coronation.
Tbb record eTpoundsthe word (sortr«ignty)
ill lh« true sense of it, namely, that our aove-
reiprn is no way subject to the bishop of Rome,
or to any foreign power. But it doth no way
import^ that the king; can dispone of his peo-
ple * ut pbcuit Rei?i,* or alter the qfovernment,
without the people's consent, nor dispease with
his coronation* oath, but proves the quite ccai-
trary. ^
To whicb be added, ' h Short ARCtmcixT
' upon the Pleadings of the aforeinen-
*■ tioned Case of sir Edward Hales,* as fol-
lows:
Th^ first point argued by the pluintilTs
council was, That it appears by the declaration,
and it is now eonfeK»t'd by t!ie defeudiint** join-
irtj2^ demorrer, that the defendant had been in-
dicted for this offence, in excTcisio^ the office
of a colonel without hav in*y taken the tests.
And upon the indictment he either did plc«d
this dispensation, or might have pleadt^ it.
And he is now convict, according^ to the direc-
tion of the act of 25 Car. 2. so (hat he now
comes too late to plead it to this action : tor he
cannot falsify the conviction, nor aver any thing"
acrainst the record of it, and brinsjtlie fact to be
Iritd over ajfaiu in this uctiou j but is coucfudefl
ind estopped tn law to sa\ any thingr trj the
contrary of that record, by which he is tound
guilty of the otfenc« against this act fif parlia-
ment.
The defendant either difl plead tl a-
tTon or pardon to tbe indirtmeot, i ^c
of the indictment, and it hath tteen tvrcr* ruled
ky the jiid^et at the assize« (an by baw it otight
♦ PfVn*s second tome, ioX, %90^ tM* t99%
fend $01, 302.
t 44 1. 3, Hot Plrl. on. 7, 8*
to be, being no r»od pl#ii) % or ht i»ta*lil I
picftiM it, if Ike had t>#«ii u ' : ' ^ ' ' N^«g
go»d plea. ;^nd pot haN r |i
elapsed \\h t""- '^'"' -t ^.^^ inii
plead it, b< i
To ibis .L ..„-. ;...-. :-.^i: ^.. . I .....ir)tk^t
pliunti^", if be >»ilt tiikt) tU<? «df auia^e of i
«sttuppel, ottgbt to have it vf t foiiii bv way i
replication to ttw d«feiidaat's ydra, M io btn
relied upon it.
For die rule if> Tliat bi^ tW pUada m
estoppel, mnat rely upon ii as ao e«topf «eL
It is trite, if ii man wtl^ ptedMi eflO|fptl,lM
must rely upon it.
But in this ca&e tUt ^lakiladr ilovs not iJnd
the eatupptl, but tbc estop|Mii t|»pearft k^ tbs
declaAntioOf and ibe dt- lendani*s uv> i
geth«r: so thai lher<3 wa» no rur
plaintiff* to set that forth by w iiy «»f :
which doth sufticieotlv apuoir by t
ant's own plea, vi^. T bal fi« tlH ^
Icfits within the i\mm Uniled 1>
the conrirtiou is caolieas^d b^ i^x^ ^.^^, „..«
joining in demur per.
If a man recover a debt tit)OQ a biiod. and W*
fore ejcecution di«^ if 1j ^ s
* Scire Hicias' upon that i lir.
feodant cannot ple^ any piiin iliftt ii« iiiy(M
have pleaded belbre, as' * non est factum', «r
by DuresS) or tbe Ukt i fur be ts cone^ndcd by
the judgment.
In Jason and Rele^a o«a«, in '^
Acp. fbl. 43. by Bridgeman, cUiii
mail shall never help himaelf by * Ai'
* rcla' (though that is an eqaitible s ^
for JAny matter that be oiigbt Uovn pii-Jtuni uc-
fore.
There is no estoppel in this cn^^ ^^' - *^ - ""*-
riction is upon an inditttttieiit
kif)g*s suit : and this is the suit l i ,i., ,,,,., .,.
the now platotifik| and so they arc tvo 4iiliBCl
suits.
The cobTiction umrn tbe imhctmciil ti m
estoppel agautsit iht.* detriidant hitUMdf^of wbkii
any man may tJike the a^Irnntagis. attd btbin'
self shall never be admitted to arer ijniiiflit>
as in Maynyo's cmm^ is Leonoand^a itM |ift .
fa1.3.
An attainder for teeaflon ia m mxwm
esiop|»el * ot which aay atratigir may uk« lb« I
advantage, not only agvtDst the party attaiiiti^i
but against im wife too, if she cue for <k>wrr«
And it does not run in privity : By Maikw. Ck*
Bar.
WhcT^ a man ti altaiii4«d by biaiwmf
fitssion of a Iciuu} , a atrsniriir la nM nmf
to aay he wa«i not Gfuilty i* but if A* eOQ
felony, and aft(T enfeoff' J. £L nf hi* Undi md
after A, is uttuint of iliii rrfony by vCiiltft*
thifieJ.H s not stcr rikiA
A. was not i inas uuder kioi*
much \mm avtir tfikiltbleVI^|
diet, thnlb^
♦ T E.4. iHr. Fi.
f Knot I and Ha^tnut'ai
\>y C biifl J u«tiv« U ale.
A.ii^
Jf>f *ifg^fdif9g <(3 take the Oitihs,
A, D. 16i*,
[1250
If t mj»n W ac<|niir^<i of felonVf nH the
ti Grtjfil, ill Kenw(?y Hc|i OJ. b is
e say iht cotitrurv* So rice vena^
if Ijt bt; c'juvicl, by llu •
As 10 ibat \irhicfi !!» I f» eonvic-
ll'ii " :-M -. ,.,-,'■ : ., , , -Ji^. IviiJtf's
%v I llic'iviMivrhe
iuit :
Tli.t »c tM^t aDother suit, Imt in effect an cte-
n I ilie conviction, arnl gronntletl upon
iti i .1, and iheTefore Dot merely a m i^
ftifl, but a dependant action ; a* a, writ of <
m- an ' ,4u<riia Qaei^ela,' or a * Scire Fn. i
llpoii a record f are iJc pendant suits^ or in
uc\i0T\ of debt upon a jud^pment.
Tlie act of 25 Car. 9, c. % hatti tnade it
ednimal in any person, after hii neglect ol'
itkfn^ the iwo'oathf , or of tlie ^^acranienl^ by
the tunes liintteil, to execute any «uch office,
W p!ace uf (rtrtl ; and for such ofTence bath
irtade bitn trTdicla!>lc at the asisizc^ : and ujion
a conviction I he (»tfender incurs (amonff of her
j^etittttics) the forfeiture of 500A and givp* it to
al^y oDe th:it \\i\\ >ue fur it in an action df dcttt.
fe> ilie ??iniul«i: Ituth directed the mettiod of
trying the offriKc, atid of ninvictintj the uf-
fefidir, b) iudictiiietit at the 'A9%ii.vH,
And if he that sufs tor the forfeiture vh all be
driven to prove tl^e ofience over again, ttien
the conviction at the a*^i%t's server for nothinif,
hni was all in vain. And such consiruclinn de-
fcita the intcntioQ of the law •makers ; far ibry
ifitendeil tbtH fur the only triril, ;jnd not to have
•Cfrral trials : For suppose it <;btmld bfi trieil
ftg&in in thta action, ami a verdict pas^ for the
defendant, here shall lie trial aj^ainKt trial, and
»r 1 ■ ist verdict: ami smh construction
On [ nade of acts of parfiafnent^ as may
nm eunu*^ nm agfree with the ititenl of the law*
niakrt'>i ; and so as that no woid/9, clause or
•entence, shall be attogether idle and insigni*
ficaut.
'"^"Tiinion upon the indtctmenl is
*!' the action of debt brought
itT; for the woiiIh of the act
ilicieopon luwfutly convict^'d
lit, every such |)erion Uiall
orth forfeit bbot.
H there be stit h a conviction, there
ill uo to* tiiture incune<l of 500/, nor no acliou
ein h<* broufjht for the 500/, The offence
provPil and determined before any ac-
t»e frroutfht ; and tlif rcfiMc the proof of
'V hereof Iho defend:inl is conviCi,
luaih* in this action ov« r :v^mi\ : if
1 i"A the conviction for?
Vmtiff here hs\d brought this
lur neglect of the defendant of
ahij and uf rectivinyf the sacra-
.i inH acting' in hi >< office after such
netflects, and before any cnu\j£'tion up«m in-
diettnent, und had only averred, th;it the de-
mttlanlh&d wi negtecHed, ami yet acted, would
4'<t iiii
ar
Z
U.I
IC
Ifti
* ftoL Abr. fir<rt prut, ':>r/2.
f [>i. and Stud. CU. u, ad fin, tih*
VOL. XI.
tfn9 ac^on hare been well hrons^ht? or, «up-
po'je there had been a convict ion, hut the plain-
tiff had not set it forth tn his declaration, but
had only averred the oflencr committed, uouM
this have been a §mjjd declanitiou? lurely it
would nut. I'his proves fbai !' t ofUie
conviction is the very otmimt it ion of
thiif action, nnd ihc-uctioti woiiiti mu lu- without
such conviction ; w thnt it h not a mere tiew
action, hot a dtf-n.! ..>> action.
And the us I i:f is where the action
i> a dt Df'ndnii. , jependtntj upon u re-
I f^rouufied upon it ; and wtiero il is a
i soii^ not depending' upon that record.
An ac-liufi afii^ainst the shmflT for an escape of
one taken in e\eciition ; this is a depi ndant oc*
tion, and is grounded upon the record of the
,judt,aneot cfiven a^inst the party that esr.'iped.
VUc sheriff cunnot aver any things a^iti&t Ihsit
record, and eiarttine it over agnin ; nor can ha
take any aiUantajrc of *»rror, or erroneous pto^
f^pcdintr, in obtairoiigf that judj^fmenl* Suuu-*
tffera's Rep. 'i pnrt lOl.*
8o in an action of debt grounded upon a
judgment, or in an audita querela^ to be re-
lieved upon a judgtuent*
And so in our cave, this action of debt for
the 500/, is giouuded upon the conviction ;
which mmst atand for tmth aa lon^ a$ it re-
mains in force, not avoided by error or aHaini.
A writ of error to rev«'rse a judgnieuL, is a
dependant action ; in error, the plainti0* mav
not aver any thinefa^iost the record. Mulieni
©er^^Weldy, ^Syder fin's 1st part, 94* Error
was sued in the kin^^s* bench to reverse a
jud^^Tuent given in the palace court : and lite
jdaintiff in error assigned for error, that the
duke of Onnoud (u ho is principal judg:e of that
court by patt^nt) was not ilic re. Jt *%a8 agn-ed
hy the court, that it miflffit not be assi^ntd for
error ; for it iras ctjutrdry to tht: record.
Hut per Cur. in an action of trespass, or faf«^
iinuriftonmcnt, whichi (says thwt report) are
eolUtera! actit»ns, he may falsity and assign
Ihnt, if he be taken upon such jud^'meut.
Ho if a man be indicted atid eontlct f>f an a5-
snult and battery, and riftf nvards ihc person m>
asfaulteil bringfK his action for the battery, thi«
hath no dependance upon the indictment or
conviction ; for it may be sued, tb^u^h there
were no indictment, but is a distinct tmd colla-
teral suit. The indictment and verdict is nd
rt^toppel, tior can so much as he given in evi-
dfucc! as I* held bv tbr %v hole court, in th«^
case of 8ttmKou r. * md Tothdh 1^>
O^t, 1?, B. n. Kebk ' ; t. The l.ke iii
an appeal of murder, rw. ; u-. :i part, 'Z'Zi\.
Another penalty upon the ouendcr againit
tilts statute of a 5 Car, 2, i«, thni be nhall Uj di«*
ablcd to tue iu any actiotk Nuuf suppose a
pi-riiot) convict '^^ *'''• ncui'/<oc wn*.^ ,,* -..rt',,,,^^
rnay not the »1 »
advantage of Ih , 1 , ,i
victioti ? as itt caue of an outlaid ry pleaded
*Jacnuc« 'C€rniM Cicsar. And Dr. Ilrurv'a
Cflse, 6 H. H%, AadMtckc:l)y'tf Casi, u It. m.
1851]
« JAMES 11.
Trial of Sir Edtt>ard Hale*,
flS»
disalulily ; lliere need uot be tei forth alt ihe
proceed iups in tliat sail wherein ihe plamtiff*
^vds fiuilaued, hut )tc may plead the rei:ord of
the outla\ny nnd rely upon it ; and it shall not
l>e cxaiiiiiud wlielliertliere was any just cau*^
tg sue him to the outlawry i or not.
The iudiciment, ihe (fefendanl's plea to it,
am) tlic terdict upon it, have determined tht*
niJilter of fact^ thul the defendant is g-uilty of
Ihe ollence a^iiinst this act of imrlianiciit.
The act itself halh (iroMounciHl tlie jmlg-
cnent^ which consists of raiiny ]tarlicu1ar« ; one
whereof is, dim the defendant «hiitl forfeit 500/.
to him that will sue for it ; and the action of
debt for the 500A hrought by ihe pluintiff,
gi DLUidcd upon all Ihese^ is in the nature of an
ey ecu lion.
Aufl all tlieae pnt logfether, are not 8e?eral
ami tlistiriet suits, hut in elTcet all hut one suit
and (vrucess, one dependiug \ imn the other.
The second poiiiitiii, whelhtr the dispensation
pleaded hy the defenilant he a good bar to the
action of debt ? ami this is properly called, the
g^reat point of the case :
Lord Chief Justice Herbert also published
the follow ing Vindicatioi) of the Judgment :
A SHORT ACCOUNT of the AuTUORmEs
tH Law, upon wutcti Judcment was oiven
w Sm EDVVAllD HALES'S CASE.
WftirrEN BY Sir Edwahd HERBERT,
Chief- Justice of the Common- Fleas »
Di Vl?«DlCATIOM OF HIWSELF.
Hayino been called to a place of judicature
in dithcult times, and after tny most sincere
resolutions and uttcrrnoit endeavours of dis-
charging the duly of that place^ with a g-ood
cnniKrience, having yet bad the hard fortune to
fall under the greate$»t infniiiy and reproach
that is po;»siblc for any man to lie under, of
perjury and breach of "trust; in jE^iving a judjQr-
tnent in aLr Edward II ales 'S Case, contrary to
lawr» and contrary to my knowledge audopi*
nion (for thut only can make it crimirial) ; and
which, they say, tends to the subversion of oil
our laws, contrary to the oath that every judj^e
^kes, and to thnt hig^h trust reposed in him,
to judg"e to the best of his understanding, ac-
cordingf to law ; although I cannot hope to
wipe off that universal ill impression that the
malice of some [Yeople, who understand the
nature of this case very well, has made upon
most men who do not understand it; yet in
order lo clear mysilf to ali just and disinterested
Kei'sons who lire only my eneniies by mistake,
I tliink myself obliged to give some short ac-
count of tlint jud^uittit, and the groundji upon
which it was gi^eo ; and this I %viU do, not by
making »n ebdjorate nnd legal argument, to |
make out by reasons of my own, that (he judg-
ment then giveu is consorKi^ut to law ; which
whether it he or no, is like lo Jje considered in
ptrhan>enl» and lo whose deiermination I shall
ifi eolit dy atkd cbMrfully f uhtoit, as any «liier
pt* rson in the iiation. But I shall ict down,
not all the variety of cases ilmt we i ^
iu our book<i, touching the klut^'n j>m
pt using with acts oi parliament ; tot \{
swell this finper to an iinreaiionabte leng
discounige nmny from reading any ^^^'"*
but only some few of the chlefest ii\
authoraies in law, upon which ttie
in the Case uf sir Edward Ilalesi wa*
1 shall not only cite th*; books and pn
those cases are to be found » but tmusc]
1 ery words, that every body may be conri
that if we w t're in a mistake, it was no wil
mistake, hut that we had lite atithorhy of
former juilgments gi?en by ffteat men'thAt
w cnt hetbri? us {and for w hich they were never
ciuestioued) to lead us into it.
The Case (for I must state it upon my me-
mory, not having any copy of the Record l»j
me] was shortly this :
An action popular was brought n j ■-* ->
Edward Hales, upon the statute '23 (
for the penalty of 500/, wherein i!v !• :, ,„-
clarcs, that whereas it was ]n v Hit
statute, &c. (setting forth tbt- , not'
withstanding wjiicb, the defendant baring •
commission to serve the king as a ctdoiMfTof
foot, ond not having received the \-
uor taken the oaths and tests, 8re« v i
times prescribed by ttie act, and aAei* the iiiBrt
expired wherein he ought to have rcrrived ibt
sacrament, and taken the oaths and tests m
aforcsnid, he did execute the said odlce, tod
cx^ntinut^t to act by i^dour of the said com*
uiissjnn ; of which he wa» indicted and outu-
victetl ut the assizes in Kent, $cc. whei
action accrues to the plaintiCT Utr the
5iK)L The defendant pleadf, t! '
lime ejL'pircd, ^c, he had a dia|i
the broad sent to act, Non Ol>^tu,u»c . .
To which the plaintiff demo rs.
And judgment was giveu for Uie defeudaat,
that his idea was uood.
And first, it will be necessary to shew whtt
tht!b disptnsL g power is^ which is warrsaled
by our judgment ; and that will best ap|i«trbf
the definition of it, which is given id ibe llA
Report of my lord Coke, p. 88, in the Cum iA
Monopolies; * Dispensalio mali prohibit! ol
' dc jui-e Domino He^l cohce««a propter iffi-
* possibilltaiem i
* cularlbus ^ et
' prof ida relaxatioj nniKm
' sat^,* * For true it i«,' -
Vin as much a» nu act of
* generally prohibrU any il
* that is JKMv.ilrir ,.r or.fi
' may l»e u
* son's, in 1^ j
* this 'purpose the 1:
* king to di!<{N-nse wit
And in the 7th Rep. p
Penal StHttJtf*»<, wliich w
th I" judges •
* That the
* ticulnr pcr.si;r;, ti«^l he i
* |ieoalty vf thu statutef t
4
utile pro hono publico;
bust ami coiifideocfr itiseuurnlily antiexeft to
ihe royfcl person of the Wt\^^^ " 1 cite lliese
Two fimi ctis*«, chiefly to sIjcmt, that %A\%'
peTiHalioti in its nut tire ls ptrlictttari unit f^iveti
11} [liirticutar persons by name; which is all
tho po^ver that U attiiliutHl to the king' by
our judgement. Anil thiM t tneniion^ becunse
of ttn unreasonable mistake Kii most people
\\\iiX talk of the dispensinir power, as though
Ihe king^s Declaration of Libert v of Con-
fctfence, whereby all the lans tliat eoncfrn
reUgion are at once totally suspemled anil lairj
aaleep, were wananteH by it ; let that declara-
tlnn Ktand or tall upon its own bottom, I nm
aure the ease I am now speakingf of hus no-
thing to do with it. And huvin^f by these castas
cleared the nature of a!) dispensations^ which
arc always g^ranted to partirular peiions (as ^ir
Edward Hale^^s was in our case, w ho was the
fint, and I think the only, person who then
liail such a dispeniiatinn), I f^liall now cite some
of the chief authorities upon which our judg-
ment was ^iveu rn that case : and the first and
great case that 1 cite, whiretn the kin|>-^!i dis-
lieuaini; power in describcil and limited, is in
the ycar-btjok of Hen* 7, fol. 11, and Heu. 7,
fol. 1*4, ill these words : * There is a diversity,'
saji tlie Book, • between malum prohibitum
* ftnd malum in se^ Jks a statute forbids any man
* lo coin money, and if he doe<» he shall
* be lian!4''*d; this h malum prohibitum ; for
* before the statute coinings tnoticy was lawfnl,
* but now it h not so, and therefore tite king-
* can disfiensc with it. So if a man shin wool
* to any place butCiOais, it is malum prohibitum •
* iiecause it is prohibited hy act of parliament,
^id the kiuG^ can ditipensc with it, and ho in
;eca8«is: but that whirh ii* nwtu/n in sc, the
' Inni;, nor no other person can dispense with ;
* as if the king* would t^ivc a man power to kill
' AAOtber, or ticen'^e one to make a nuisance in
' m hijjhwuy, tlii^ were void ; and yet the king-
' iv< I I ' ' r things when they are done.'
Tl ly words of that Book; and
my loni Vuii^hiiu discoursing" of, and ex-
plaining this case in tlie cise of Thomaa
and Horrcll, in his Uep. p/t5ti;i, first shews,
how a dispensation ditfci s frrim a pardon. For
a dinpeoHJitioci does ;«jt tlnre, and tnakes the
thing' prohibited (to' all others) lawful to be
done by liim that has it* Ami therefore the
kin^ caniioi dispeose with mala in se, because
they never \v tre, and never can be, maile law*
full hut e%eti the^se (says the Year-book) may
b« jiardoued after ihf_) are done.
Pi-om thete cases results this plain sylb-
gjiani ; whatcirer is not prcdiibitrd by the law
of C^od, but was law^ful before any net of par*
tiain^nt mailp to forbid it, the kinjf, by his ilis-
p*t Lil to a [larticnlar [»rrson, may
m iu, to that person who has
mv I. though it continues unlaw- I
ful ' ''lie,
I ..., ..a;.,., nvrthout taking: the |
^at : lit to any acts of
Is
Therefore the dispensation g-ranied to sir
Edi^ard Hales, did make it l.iwlul for him to
do so, though it continued unlawful tor any
body else.
In this argument the premises are Done of
our own, we have them out of our law-hooks ;
and the authority of those lH»oks have never yet
been questioned* I appeal then to any imlif*
foreut pei'son, whether it can be cviuiiiial in
judges, to draw' a necessary conclusiou iVotn
premises anil book -cases that have been taken
ibr law iov so many ages together.
The nex* j^reat case is the res4^1^»ion of all
the jud;^es of England » in ^ Hen. 7, in the £x*
chequer- chamber, upon the king's power of
dispensing;- with the statute of '23 Hen. 6, cap.
8, That no rnan should l>e itheritT for above
one ye-ir. The recital in the preamble, and
the whole purview, if compared with our sta-
tute of *i5 Car. ii, cap, y, equals it in Gwry
particular, and in some ^es beyond it : lor
the mischief^ recited in this tatter statute are
only in these wordN, For preveiitinjj danger*
ivliich may happen from Fopish rccu!»ants,
and ijuietinif the minds of his m^ije^ly^s t^ood
subjects. The cause of inakmj^ the siaiutt
of 23 Hen. 6, is for preventinu; the im[tortubIe
dam;ige of the king and his peopl«, perjury,
manslaughter and great oppression. The pur-
virw enacts,
1. That no man shall be sheriff* for above a
year,
^, That all letters patent nude for years or
lives shall be void.
3. That no Non Obstante shaJt make lliem
gfOo<l (which shews that the parliament ihouiiht
the king could otherwise have dispensi*d viith
this act by a Son 0!»siante.l
4. Whoever acts by colour of such letters
patent shall forfeit 200/.
.5, He shall l>e utterly di.sahfed to bear the
oAice of sherilf in any county of England.
6* That every pardon for such ottitnce i>ha1i
be void.
Notwithstanding all this^ tt was adjudged in
that case before* cited by all the judgt^s of
England, (*vho were nt thul time as learned as
evvr sate upon the bench) ; I say it wan ad-
judged hy at) the judge?; in the exchequer
chamber, that the king's dispensation with
that statnte was good.
flaving then this case before us, if we
should have judged the dispensation not gocHl
in sir Edward Hales's case^ it must have l>eeii
upon one of these two grounds; that is,
either, 1, In the first placc^ we muit have
found some ditftrence k'twecn the kins*!
power in that case and in this, which 1 conic
after the wisest enquirj% does nor appear 1
me, and 1 wish any mau w ould shew me an]|
" ' ! encc if he can : or else, 2. NVe mus
'l<^^ed that solemn res<dution ^iven in
In-' I \rrufjuer-chamber by all the judges of
Ett!;land so ton*^ ago, and which has hten
tnken for gwKl law iver since, we must ad-
judge no law: whereas the known rule itj"
I
2 JAMES II.
Trial of Sir Edward Ift^a,
£1256
Mtled in the Exchequer- chamber by all the
judges, \vc never suffer it to be disputed or
drawn in question again.
But our enemieaseelDg the force of this ar-
Sument, have had the confidence to say, tliat
lat poiut is not resolved in that case; they
mi^ht with as much modesty affirm, Thou
shalt not bear false witness against thy neigh-
bour, to be none of the ten commandments ;
we can only reply in this case as in tliat, that
if we have eyes to read, and common sense tp
judi^e, it is there resolved. Indeed there is
another point about the sheriff's passingr his ac-
counts, which the judges were divided in ; but
in the point of the dispensation they all agreed :
or else, that other point could never have come
in question.
But to put this beyond all controversy, we
Lave two things to offer :
First, That it has been cited as adjudged
in several books of great authority.
Secondly, It has been the constant practice
to have such dispensations in all lung's reigns
Ivor since that resolution.
As to tiic tirst, though 1 might cite mauy
books, yet I niil only cite three or four of the
clearest and greatest authorities : and the first
shall be Fitxherbert, iu his abridgment of this
tery casp, Til. Graijt. 33. who lived near this
titne, anil could not easily be mistaken in the
sense of the y^r-booJk : The patent, says he,
ivasadjudgcil ^iM byall the justices ; but the
statute s:iys expresj^ly, \i shall be void ; there-
fore it is only made good by the king's dis-
pensing'.
2. JNextto him shall be Plowden, who, as
all lau vers will confess is as little hkc to be
mistaken in the senso of the year-b4x>ks, as any
reporter we liuvc ; and he, in his Comnieu-
taiies, p. oO'2y in tlio case between Grcenilon
and the bisljop of Lincoln, after citing the case
both o;.ti»f) ear-book, and out 6f Fitzherlicrt's
Al>ri(li;inent, liiis ihesc very words where the
staliiic was, * That the kinj^'s grant to any
iiiau to be shciitfof any county for longer
time than ay< ar sliailbo xoidjUotwithsiaiidin^-
auy clau: c of Sxni Obstante to be put into the
patent : ♦ Tin re it is held, that the kiii<r's prant
to thti earl of North umlierland, to be bheriff
dnrii.j^ life, mubt have a clause of Non Ob-
sla-.itc, I.c<?ausc of tlic precise words of the
slatntc bfl'irc nicutioucd ; and with such a
clar.si: (,t' Nou Obstante, the patent to the carl
was good.
i). Next is my lord Coke, who asserts the
king's |.r€ro;;ative touching tins niHiter in
nui.'h hi:j>'hei- K-i'iiis than we couM presume to
do, in .iflving juditmcnt in sir Ldwaid Huie's
case: to/ in Ms twelfth report, na«^e UJ, he
has those words : " No act can bnid the king
iVom any pruroi^ative which is sole and insi pa-
rable to his person, but that he may dispense
with it by a Non Obstante, as a sovereign
powf r to command any of his subjects to siri've
Ijiii for th;; public weal ; and this solely and
inseparably is anuext to his person : and his
rpyal po\> cr cauuot |)« irestraified by any ac^ of
pariiaiiicnt, neither ip Thesi nor in H jpotheii,
but that the king bv bis royal prerogative may
dis|)ense with it : mr upon tbe commwidaien^
of the king, and obeoienoe of the subbed,
does his government consist ;. m ia jpnividei
by the statute of 23 Hen. 6, cap, jB, That aD
patents made or to be made of .lyiy office «f
sheriff, <Sec. for term of jears, I^rlSf^ iofte
simple or in tail, are void and of nplAf efied,
any clause or parol de Non Qbstapte) put or t»
be put into such patents to be ooade DOtwijth-
standing. And further, whosoever shidi Pif»
upon him or them, to accept or occupy tmk
office of sheriff, by virtue of sucb grants or
patents, sliall stand perpetually disabled to be
or bear the office of sueriff within any county of
England, by the same authority. AndootF
withstanding that by this act» first, The pa-
tent is maJe void. Secondly, Tbe kin^ ti
restrained to ^*ant Non Obstante. Thirdly,
The grantee disabled to take the office: yH
the king by bis royal sovereign power oi'
commanding, may command by his palest
(for such causes, as he in his wisdom dgtb
think meet and profitable for himself ani
the commonwealth, of which he himself if
solely judge) to serve him and the weal puUie
as sheriff of siich a county for years, or for lift^
&c. And so it was resdlved by all the justicci
of England in the Exchequer* Chamber*. 2E,
7. And after some other cases to Uiis p(Nl^ of
the king's prerogative, be has Ibis ianber;
says he, see 4 Hen. 4, cap. 31^ in wjiicb it if
ordainc4l, tliat no Welshman he justice:, ifhaB?
berlain, treasurer, sheriff, steward, oon^laUo
of a castle, escbeator, coroner, or chief fiirester«
nor other officer whatsoever, nor keeper of oe-
cord, fkc. in any part of Wales, notwithstanffio;
any pau*nt made to the contrary, with claoso
of Non Obstante licet sit WaUicus uatus : Ab4
yet without question the king ujay grant wiuii^
Non Obstante." Thus far that bynk, aoJ i
have transcribed the book at Jai^-e, tUajt v't^j
body may ^e^ ttiatthe kiug^s power of JSspcof-
iug with such acta of uarliament as rcs^^uo bii
granting offices, stands upon a peculia|r rsssoo,
besides the general one upoa which hij» power
of dispensing with other jienall^fws is ibuuded.
Aud thai if this be a nernicious. opinion, y\c art
not to suffer as the urst authors of it. Bdt kft
it should be ol))ectcd, that l^is b miy M
CokiTs single opinion, or th^t the tweliUi rt-.
port is not of so great authority ^s the rest of
his reports inre ; the sarnv b> resolvetl l^' all tlje
judj^cs of Euyland,(if my U>r.dCoke^eafaitb-
I'lil reporter) in Calvin's cusc, in fjUe Kventh
repc»rt, p. 1-1, in these words : E\ ei-y^-yJ^jfCt i«
by his natural allegiance bound to MCfvc and
obey hir> sovereign, 6cc. It is ecuicied by ihc
pariiameut of 2:i II. 6, Thift uo man suouid
serv e the king as sheriff of any county above
one year, and that notwithstanding apy dpufC
of Non Ol^tante to the cantrary ; thai if vt
say, notwiUiStandiug that tbe king shoal^ ca-
pressly dispense with the said act ; boi^biit.it *
agreed, 2 11. 7. thai against ibe exprev par-
view of tl^at act, tbfadBiff qoi^j^ bj f H^M
I bey are li'
incJi/es to ,
. caa they
uftwt^en tbe
I party and
vtiuiiji by 4^11
l4rfij|l*%**^i» ill tiii* cxclicuuer
f^ nre T^ot to h^' n-lt^l upon ? H mey
■I) ' inn kind, vvheriu:'i'
El r very tittle to Uut
»f tiio '"'■—' *?r
2y do I ul
■treiii' r ca«e$, Lie
^rity of this cuse, we
V f*" • 'hTSBttitute o(
»eaie(l with
no! j^cM>0» ^i^e^\ all f^frsoiii coti-
|i||liej.[|teiit»fminil hv L'l'a^icJ jiirieSt
vUrHherin Jly atldiiit-
ll^ntiiuh o^ anvcuf, aud
. y »uch
^u. tj it is
aD't
., , -i ,ihat uiH
and more? *tiw\£ ■'
duiDg Lt^l all. i .
in^ to a man's upmiuii, it i^ pu uK^re lu aoy
man*s |M>Wi*-r to ch;ivi^e his opinicm, ttiaii to
cure l»u*»beU'of deaiiiciss oi
luan believes, not because l
be niu«t U'heve, ,Eitoi' i the
nuiid, &s much ik^ thiAtie b J are
ol the boi\y, U b tni»% a liiau itiu^ M*.k tor
uigtrui'UQhf aod mkc till u^ati^ to be bciier iii>
for mod ; nud so rnay a nmn, Ui i ' ase,
try 1^11 proper reriKdmi U> cure I . t^rs ;
hut proper remeihes do uoi ulv^iiv? ^ uct t tiie
cure, and otten win' a lUry do, there ts much
lime taken n^> "■ "'- 0|>eriiUiHK Aud the king^
**ho rti in n; ! aU, Ufes the service of
h,>, suLii. t 1.. _. ill tioie, And il ihiK pre-
1 1 , as uiy U»*il Coke 5ays, * Fropi iurn
* «l lo/uiid th^t U l>fli>ui;K to our Utl);^
as he 8ayi» ^ Ouinif suh ft tieniper ;* the king
i:an be tiu luore dtiharrei| qt' the ;{« rf lee oJ his
stihjt^ct tor a nirmth or a year, thuii lie coti be
debarred of it f<nrevvr; jPSfM't^iuPy stntr* in iliat
month or yeuj '
Hki«it MWMMrd
king thiU lb li> emiiui.«u<J, aud o| iiir Auljt\:i -r?
he, eoiXkusaoded, lauy priihdijly never h«ppc(i
y gther Cftses of aets of piu-liAment
jrniiie I *•
UTB
. th*«
'■ «M thf;
lor the ^>
. ,.'. bv vuid ; « ... ,i .„-
snliy di^peuiMt^'d With «vet
Hut 1 a.solyf out to
ligativn.*'*^ hut lo
, us Ukov are
1863]
f JAMES IL
Trial of Sir FJxmrd Haiejt,
[126i
consciente that liose statutes wene ix»«r m
force. Antl in other cfiates, wherf in tlie rig-tits
of the subjects have lieefi brotiifbt in qncsttmi,
h<>w' sitrictfy 1 liaTe kept to that suWiinfrnl
diflcreoCe taken by the honse of tommons^ that
rhou^b the kinif in laws of u-oTerDMiecrt* tu
penal laws ot" |juhlic nature, Iraa a pu\*er to
dispense in particular cases, ytt lie canum flts-
pense with laws which vest iiny the leastt right
or propLTty in any of his suiijects, wifl apjiear
hy the opinion I gttxt in the esse of WafjdaJeii
College, (for the truth of M^hFch^ I ai»|>ea! to atf
that (chow any thing of the transact lonu in that
case) wherein, when the kind's right against
the College was endeafoureH to he asserted by
a dispensation granted by himself, ] niterly
denied that dtspensalion to he of any force at
dl, because there waa a particular right and
interest vested in the members of that college,
as there is in the m«n?bers of many otlrer cor-
porations, of chasing their own head. 80 far
hare I been from giving up all men's hves,
liberties, »nd pi-operties to the khig's pleasure,
I had forgot to take notice of two or three
objections more, that are usually made.
Obj. First, here is a dtsalrility, and the kmg
cannot dispense whh a disability. As the sta-
tute agninsl Ijuyin^ offices, the king, say thcvi
cannot dispense wuh for that reason.
Answ. There is tho same disability in the
case of sheriffs ; and yet resolved that the king
can dispense lu that case ; and the reason in
the statute of buying offices, or sirting in par-
liament without taking the oaths, is because
there is m disability actually incurred ; and
when any person is actually disabled, he cannot
have hi^ disability taken off hut hy act of par-
liament. But in the statute dispetise4j with, in
the case of sir E. Hnles, there is no disability^
actually laid upon any uian ; but certain things
are required tu be done, and as a pt-tialiy for
disobeying the said act, and omittintr the doing
those things required by it ; the ilt^atuljty with
the other forfeitures are to be incur ret! after
conviction. Now the nature of di^^pensatioti?
being, as was shewed befdrie, to n^ake the
thing lawful to him ^ho has it, which is un-
la#ftil tu every ho«ly else ; it does plainly pre-
sent the committing any offence hy that person,
ami consequently the incurring arty penalty or
itisahtUiy at all. But in the case of buying^ of-
tiee^ rhl' per>4on h dissbletl before the dispensa-
tion ctMiics ; for lie is disabled, iffso facto^ by
contraociufT' or dealing fur ihe oftice' So the
true difTerf nee between the cftie of ^'
the case of bnyiny office*»% is thi**, *\
in the onec»"<i^ titlheincm
hihty, hutcatii 1 in the 01!
incurred. To (MUTntut tlit-s by :i t .i-^v i* ..^
Jike nature, the king mas [i' v jtt sm attuindei, |
but he cannot purtje an LittiutJi r If a man
litis cotnnnnitled ireasoti or IVIony, the king by (
jrraniing hiH pnrfloii imn' intaHiby prevent the
Mffeoder'*! ever ! ntrd ; 1ml after \\r is'
once actually the Icing can hy no
means take oH' that uitiunder, or [lurge the cor*
nipti&it of blood, but by act of padiuiocnt ;
nfovided the judgment by ^\MMi he « atttlattl^
Ik? not erroneous,
Obj. tint it is objected, that Ihew lawa
made far Ihe interest iff i' . ind oil nf ,
fences against rL'lit^iim v. tn ir, auij
therefore not to In? i1t ti
J««r. I answer, : mv, all offcnr
that are di"'"*i^' ** *^ * ♦ '^ cnn*f
stiluted suf m tiA
and noi to 1 r^^\
the parliarn
for an act o r — ^1
rhiit sense is uitprly void, as is ina^n
Dtictor and Student, of dh act. That
forbid the giving of :
&c. But humiin ;
though made for the miiinj*!. oi fclt^K
they had a beginning, so they a r^ i»h*
ihe same power that made ihru t|
fore the breaches of thrm an
mala prohifnia, as was ivsi)|t»'<| m trie
cftseof dispensations, in It H. 7, ^httve cite
and instnut^ given ; • as the king
* pcnse with a priest hfdding of two l»ena
though the laws agsiinst phimhd -
for the interest of rehgion, and '
cation of the pp»pple. " * So ttn
* pensc with a bastard 't ti
•orders,' &c. Thcsp instu:
laTv in that year-book.
But to all this I knoiV it Is mid, that tfir
high trusts and prcro'^atives might he at*|
ways safe^ and aunifiiines ustdtil rn n f*r^*
te*iiaut prince's hands, who would
discharge the doty of one that ot^^,
ciiafos utrii '^^f ; hut when thuac [irc- :
rogutivcs a I to a prince who is of a]
Contrary nijif:ii>ii to that
there would be always it
abused to the prejudice ot ocsifur*i<uioi Uit
tabtished religion,
Towliich 1 M'-"- *^-« '» ,.^r..,.,# k^ ;
gotten, that the 1
sioti used the '
him king, say ti
rog«itives of ^i l,
be mmie m
ligion; whi
tletiit*n on the otuci si<ie, wi« H
Bill. Their only reply was, * li
* cfelnm.' it is ^^ nd wc tuu»i
evil' thtsf giM»d 1 ; we int*^
wrong, noil
itseU: Tbi h
not break our outH, luit ;.
trarv to whf»r fc'UMP.i tr* 1
couscqvienr'
ktiig, Lring oi li
should raliler ha^
(;t»t*'rU*i,I Ui inr. t»r i
r nil
lo Ii4ve ^'tvttk a judg'nien^ even acconiing lo
|.>.. 1. 1...!) iiiiglii i>4j jfo prejtrdtcinl tu lUat e.\-
' :n»ii liiai ] proti^**; au(l <»!' whicii
>- . ^e to Iw', let UK vv;k54,* tfi be ul idl,
' ' I, That ututUcr m lauilenco nor In
coEt i'nje; t I could liavt: tukcn ti»;it courxe,
l'ii*i, iVot in |jruU«rK'P ; lur I cmiftK* thai
say^>*ff« * Oniniik iltit^ qui JuMta negate* had
tfPeil wet^rht witU n\G in tho case : and that
J wsi» of 0()inHjrit since un iticroaL*hmerit ol
jurisdiction nas fWvred, lliere could uol be a
lerfiftter, nor more dtmiLC^rfnos pro^ocAliiUi to it,
mn for Prutcstant judt(i*« to leJiise to jjive
jiai%oi<fut Ibr ii prince uf a UifTrreiU pcrsua-
•bti. In thai ivliicti Ue could uol daiy to be hitt
right.
t „ 1 - -1^ ju tsnnseience, I conid not decline
y - mciit in till* case, foi- by our oaths
v,i. ,,. ., . T -•- 1' .-iiii-w-tjii |«> ^iit- judgment one"
way or otli re lo i?ive uiuit wif tljink
a righleoui^- g....,.ii in ail cases that coiiie
bclurr us.
It iiai been ohjectudi Ihatal) this was a oon-
tfi\.tncc, an inforuicr ftet up, aud all but a
Jeigiied action.
A» lo to tliis matter, I can truly say »that I doo*t
remember that f ever heard ot this aeiion, utttiit
er it was actnaUy brought ; but in lhi!« ihetv
tUiKto he no hurt or incouveuiL^nce at afl. The
Taw tti us WidI tricit and S4^ttled ina fri^ned actiou,
fts ill a iriic. Tlieie are R'iy nal aaiif^nt directed
©very day out ol' chancery lo thiit very pur-
poM?, th»t ureal and dilHcutt poinU ot law may
^ "' ' ^ y ihetii; ami why the kin^ mi^ht
<oh an action to be brought tosatiiit'y
ulhev he had i^nch a power, and jI'
I the p«ople ndy:ht be sati^fieiK &tid
■ , {1 it ; 1 confeEfi 1 »ee no ditterence at
ath it there wexe indirect means us«d fur
procuring' o[iinions, or the hke, t have nottiing'
Xu ^u\ to it. I st*and upon rny innocence* and
« Ikulieuge all the world to lay any tiling ot'lhat
"ind lo my chnr^e. Mv p"i*t was only lo ^ive
\y own opiulofi, in wHich, if either by mis-
tinder^tanding^ the books that I have eited^ or
hy drawing weak conctumous Trotn Ihcrn, I
have erred in the judgment that I {i^j^ve: How
can I for thi« l»e cbarijed ha a criminal ? The
it'
I QUI
If nyl
taw neither !iUtiiio6e&, nor requirt s an infallibi"-
lity in any of hiii majesLy's courU of juiftice ;
wirre very unm-'
'e can but ju<l-
bel^.n. .,K-un,,L.:.:.
our iM iijf of
in lhem« if it did.
'^ to the houks thai
^ lo the measure of
itiese b<Mjks : we have
nut til liuich Uii:ht 'o guide us, a« we
ia we had m thi!> < a»e. U'e »dUii meet
1 H%cs new and rarcj ami very ill settK-d
by iurmcr judg^nicnts, where we are forced
to diff truth, us it w er^, out of the mine, to
fsotnparc an»l disiin^^uish^ to skrcH^n and sift,
aiici gather the m nxr of tlie law out of the con-
r ■ ' iiiii^, and very often c<mira*
IS well as we can : and if
ir and our pain«» we happen
i WH* ncviT \x*l imputed a* a
..ij^nieoi i!* rcvei»«td in a writ of
without tht least reflection upon turn that
^jve it. Nor can a mistake in judgment he
more cnutinal in a matter of a g^reater con«
cenim«nt» Utan it la in matters of il»' ^» ■''• **'u-
sequence: It would he very mis i d
very dungerous, if ittihoukl* For , •-
tiouH of prerogative, any mistake shall be made
eapital tui tiie one hand, when juilg'menl is
given for tiie king; why sncreediu^ prince*
may not he as angry at any mi^lake^ on the
otlier hand, 1 cannot imagine^ And when
once affairs are come to tinit pas«, there will
be i;;reat encouragement for any man, that cati
make the least shift to live without it, to under-
take tho** vary necessary, but very difficult,
and very troublesome employtneuls ; g^reai
freedom for men !« ';4rncnt according'
lo their opinion and i irnce; and great
reliance upon the ir^ i.^. -is of those, who
know they slial) be sure to pay with their lives
and forkines for any mistake of theirs, either
to the kiiiij^ or the people, as either of them
siihrill happen to net the upper band. For my
own part, I thank GckI, i can say these two
thing* ; First* That for these ten yeai"s toge-
ther, wherein (y>\lh very little intermission) I
have «ate as a judge in several courts, though
1 may be justly accused of many woakncsae«
and mistakes, yet i have never pven judg-
ment in any otie case against I lite clear dictates
of rny reason and my con^^etence. And the
second thing is, that I never gave judgment
in any controvertcil point/ wherein 1 had so
many, and so great uuthoniicii to warrant it, as
1 have to w arrant that judgment which was
given in sir Edward Hales's case. An<l this I
say not to stet up that opinion again in a pamph-
let, which was so ill relished in a court of
juiitice, nor to oppose my sense to thejudgment
of the nation ; for I thiuk it is very fit that this
dark learning (us my lord Vaughan calln it) of
dispen<ia lions, should receive 6*011 te light from
a determination in parliament \ that judges far
the time to coute, may jud|;e by more certain
ruleSf which acts of partiumeat the king may,
and which he may not dispense with. But t
have cite"! these authonties at thin lime in ray
own defence, and tdrtbt^e particular purposes;
in the lirst pluce lo sht w,
1. That we are not the first inventors of thit
di<ipensing power, but that it has been allowed
Wiilnuit cbntrovcr»y, 1*^ the kings of Er>|^laud
in all agea, tliat they mightdispense with many
acts of pariinn^ent.
2. That if our jutlifment waa f rroneoiis* and
thai the king could not dispense with that act
nf pariiament ; yet ihiU error was but an error
in lliat single cunc, and had no such lar^e and
m tKc In e V < »u H conseq uen e«'S as i s 1 1 Pttend ed . For
t)i}»t, becituse w^ jndifed that the king conkl
iiispenw! wiili that statute, for fithers iu con-
clude fn ' '^. that thcrefi>rc h** had A
jiower to dh all oiber statiiteJl ; t«-
: !i. ..it;, «»r vviti m any tif tho
^t wli«it»oc>v«r, im
{., . ^ . '*> or lUiit, lo-
calise tXit kiBg wi»y di^peoa* witli • jKOi^V l?kw.
1267]
2 JAMES n.
Trial tf Sir EdmrdHales^
[un
wheMin a dMibilitj is sDiieied to tbe bretch of
it as a peoalty, and that pe^ty not to be id-
canned befbre aiegal con?iotioo, and where the
kioi^s dispeDsation makes the thing dnpcnsed
with lawful> and consequently prevents any
convidion or penalty at all : For others to con-
dade from thence, that therelbre the king may
dispense with such statutes, where a precedent
disability is actually laid upon any man, as
there is upon the members or both UonsMi till
tbev bajre taken the oaths and tests prescribed ;
and therefore without question, is not in the
king's 'power to dispense : 1 ,say, these are
cons^uences which may flow from the heated
-imagiuations of angry men, but have no war*
rant or foundation at ail from the judgment
given by us. • '
I have one thin? more to say in my justifi-
cation, which^, Uiat if I have been guilty of
so heinous offences as I am accused- of, where
is the temptation or tlje reward ? If it was to
keep ih my judge's place, which otherwise I
migbt have lost, 1 can only answer, That if
that were the case, 1 then became the worst
man in the world, only to keep that, which it is
pretty well known, 1 was with much difficulty,
with the persuasion of my friends, prevailed
with to accept: and for any. other reward,
whoever is acquainted with the drcumstances
of 4 my fortune, will, I am confident, notwith-
standing the false and idle reports, of 1 .know
not what great reversions lately fallen to me,
as easily acqnit me of having been corrupted
by the king, to ffive a pemicions iudgment ifi
this case, as of having enriched mysdf by
taking bribes in cases between party and party.
All that 1 have to add more, is, that howso-
ever this that I have said in my defence may
happen to lie understood at present, yet 1 could
not deny myself the satisfaction of having put
in a plea of innocence at least ; that whatso-
ever shall bftppen to me now, may perhaps
meet with a more equal judgment in af'ter-
'' times ; since it ou^lit to be much less uneasy
to me to lose my life, if any body be^ery fond
of tukic^ it, than to let the aspersions that are
every duy cast upon me, to pass in silence ; or
suffei: myself to be transmitted to posterity
under the character of a betrayer of my reli-
gion, or a subverter of the laws and liberties of
my country.
In answer to this sir Robert added :
A P0STSCRI1>T : Being some Animadver.
siONs UPON A Book wnrr by SIR ED-
WARD HERBERT, Lord Cbief Jus-
tice OF TUE CoitfMON PlEAS, ENTITULED,
A SHORT Account of the Authorities in
Law, upon which Judgment was given
IN SIR EDWAHD HALES's Case.
Since the finishing of my Ar^runient about
the power of dispensing with penal statutes, a
KKx>k came to my hands touching the same
subject, caUtlsd, * A short account of the au-
< thoritica in hw, upon whidi ,
* given in sur Edward Halea'a case ;'
by sir Edward Heibeit, duef joitMe tf the
common pleas, in vindication of himaslf.
And aitbongfa I am of opinkHi, that tke aob*
stance of all the arguments ooataioed ui tbt
said book, are fiilly answered in ny albiaud
diaconiae, yet I hoH it nocessiiy to make ws
tanimadverstotts' upon thl^ mm books and «•
point ont readily to the reader the aeveralMf
of my dtsconrae, wherein the ai|pmneula of m
chief justice are more directly and partiooht^y
treated of, and answered.
And there being great reverence joiliy dsi
to a person that bears so higli a cbaraCier, ti
also to a judgment given in toat superior csort
of the king's bench, and by lulvioe of aU hit
twoof the restof the judgea, as I now ksM^
some short apology had need be used ftr tkl
fireedom I have taken to animadveit opoaril^
bong, as 1 am, but in a private statioii.
In short, therefore, I nave not nndertaken it
out of any vain conceit of my own 'aUUties^ha
out of a sincere desire to inform such aa in dw
approaching parliament are like to have Ail
great case m judgment befosetbem;' attdaoms
may possibly not be at leisure, aa I have bsH^
to study the case, the matter being of a nighly
importance.
Nor have I entered the lists apon any oa»'
tentious humour, or taking any advantaie d
the late happy change of public afidiB. Itfi^
I thank God, more indined to oominiaeialB lb
distress that may befti any pecaooa by Ihr
chapge of the times, it having been ny <
case so lately, although they differ from ■•■
judgment or interest. I am very far from ia-
sulnng over any, whatever hara uaage rny-
self have met with.
* Nemo confidat nimiiira aecnndis,
* Nemo desperet meliora, lapsus.*
My Apology is this :
1. I wasengtiged in the Argnracnt befbre
the coming foith of this lH)ok, and it happening
into my hanOs More my publisliing of ^y
discourse, I could not decline the obserrisg
sometiiing upon it, without being sus|jected ts
liave given up the cause.
3. The lord chief justice himself hath by hii
book given fresh occasion fairly to discuss the
point again, by declaring that he expects, si
we all do, that it will receive a disquiittion is
parliament.
3. And as the chief justice h^h endeavoured,
with as much as can be said, to give the worU
satisfaction in the justice and right ef thecMe
to maintain the judgment given ; so he is well
known to be of tliat insfcnutty, and good
temper and candour, as willing to receive a n*
tisfaction, if any ilurther argument to the ooa-
trary may be so happy as to convince him.
The chief iustice Herbert, ante page 6lf>
gives us the definition of a diapensatMO orft if
sir Ed«%ard Coke's 11th Rep. &L 8& vis. « Dil:
* peosatio raali pcphibili est do jvi munMf*
far nrgfrcHng io take the Oatht,
A. D, 1GB6.
[1270
It, ftiH>j)t€r irtifrossliVtlitQleiii ]int!viile{n]i
ranibii- |).irficu1rulhu«,'
id uttrni"). * Dt^HimiiiK) 9%t inali prohibits
ilia rdaxalio utilitaiccett necesailAte c«ii»-
la/
'|>r>n lh<r wnM * crmcctsfa.* I woultl ^M\y
lie Nivimtii-d, when, m- Uy wlioro llml jHiwrr wa«
#TtT fjr«n1e«l to the kitig' ; when! ijhall we tititl
that grant?
It is cliMir, tbal whoever hatli Ihe entire
pciwer of tn^kiu;^ a law, mtiv j'lsl^y *lisj>ense
with thui hw. Anil iheri'fui^ Almighty C;od,
being liie sule and suprcDie luw-giver^ miijfht
flisuifnEi- even «it|j th<? moraf luw ; as he did
ifiili the sixth coiiimHndinetjt, when he com-
rniindfd Abruhurn ta sacrt^ce Uh sou l&uac ;
arid with ihe ciy^hth cimi maud men t, when he
c^tmmnmlorl rhe Israelites lo borrow the jewels
of «■ Aoa, aod 10 y^ oway without re-
liiK It ;^rMis not with rfftson» that he who
hath hut a shai-c wiUi mher« in making* of a
JjiWi (a« tht kinijj hath no more) should liaye
the |iMuer, b\ himself alone to dispense with
hi w, unities t hut power were expressly in -
* wiih him by therestof thelaw-makers;
iietinie^i hath' been done.
Sir Kdward Cokp» in IiIr 7lh Rep* iti the
Cose of Penal Statiifes, ti>L 36, towards the
lower end» doe^ affirm, that this dispensini^
fMWeriH commitied to the kin^, by all his sub-
iectj. 8o that it is not diiimed jure divino,
but by j^rant from the |ieo[»le. but wher« lo
find any sudi ;^^ront we ktiow not*
1 hnve, UK I conceive, made it appear in my
' ' fijl» p. 11, thfit the first iuvemion
I with lauii^be^n with tlie pope,
/luiiiii I lit- Mine of Iniiociiut 3» and hy utirking
Henry i*, in tmitntion, and by ciicourft;Te-
* '' •' ■■ :" ' L" ; ISO thut it was not by the
kt' , but ever excluimed a^piinst
.., ^jd generally by all the neo-
pl*-* I reocetl agftitist ty a mullituueof
act. ^ rnt*iJt,
It 11 true, tlie dispeu*inff with laws hath
,efer finco been praciiseil ; and they began at
Bntt liere in Kiig-lat»d to )>e usal only in cases
where the kin^ alone was concerned, in ata-
tde for ht& own prodC, wherein ht^
ve doi)M what he pleased. Uut it is
Uat Ihry bare been stretclied
rn the whole realm* Hee
I, lui, i:i. III Jdently
uiot be a hgal | in the
j....^ , .v'l Utut mu&t ever be I'v jiir>ci»piion»
and restrained to those ca^s that hare beeu
UMui lime immemorial, and mu*t not be ex-
tended lo new cases.
, Now there hnih htm no sijch ««age as will
» warrant the r with such an act of
.parliament us j lure ua, that ot 2& Car.
f . c. 3*
ITie chief juslica Herbert, from the tJefitn-
,tioo More rec itetl, an<l tho!« tw o r
,pr Edw«r*l IJoke, in hi*; f*n«?c of
and ''.-■: ■ ': au ar-
ifiui -runted
taair i.uwaru iitiK^^ wiu jjuvU lu litvv.
Becatise a diffi»ea<t}itk>ii \h properly and only
rn cA<^e f»f a mnium fnohdttum; he thenre
infers, thut the king can disj^ense in all caiics
at' mafa prohiifiin,
\yUtcU is a wronji" icfcrenc^, mnl that wrhich
log:icians rail, • rulhicia h dicto sef:nndum cjntd
* ud dictum simphciter.' Beraiwe he ctin diii-
[rnise with some, that therefore he can ditf*
penstf wilh all, is no ijockI consLijnenve.
It appears by the late chief justice VaughanV
Flrporis, in the cage of Thomas and Sorrf L
(so oHen citetl by liie chief justice Herbert)
Van^fliJin's Hep. fof 333, the fourth parai-raph,
that hi»i opinion if», That the kiti^" ctiunot dii»«
pense with every tmitm prohibitum ; and he
drives many instances of i*uch muta prohihUa
that are not dispensable, fol. 94^, and 334 « pa<
ra;rrttph 4.
Therefore the lord chief justice Herbert
should, as ] conceive, regiikirly first have
pvcn us the distinction of main pnt/MtUt li\lo
such liH are dispensable, and such 06 are not
dispeJisablc ; and then have shewn, ihnt the dis-
pensation g-iunied to FJr Kd\mrd Halts, lei I
under the hrsl part : But that learned nporttr,
the clii»'f jnsliLC V'au^biiu (so often cited by
oiirnow lord cbiefjustice) in the atbresuid case
of Thomas and Sornd, UA, xyij the Invt para* •
erraph save one, cpiarrch with the *ery distinc-
tion of wulum prohibitum, and malum in *e,
and fcjkya it is conloonding*
From w hence J would observe, and from t!ie
v\ hole rcjiort in Thomas and SorreP^ <:a»e, that
the notion of dispensation if as yet hut crude
and undi^reaed,andnot lully Hhaped and form-
ed by die judg^es,
The Pope wa* the invenlor vf it, our Ittiist*
have borrowed it fmm them ; and th+ ' >
trom lime to time have nursed nud
up, antl lifiven it countenance. Ati<J u i-^ m i
upon the s^rowih and eucrouchniLr, tdl it hath
almost Hubvcrtetl all law, and made the re>^l
power absolute, if not dissolute.
I must atj-ree, thut our book« of late have nm
much upon a distinction, viz* Where the
breach of a penal statute is to the parlicuiar
damage of any person, for which such person
may have his action aifainst the breaker of that
Vdw \ there, though it be hut mnliim pn^ki^
bdum^ yet the kuig Cf»nnot diji(>eniit; with thai
penal Jaw, according: to the rule in Uracton i «
^ Hex uon potest giatiatu tacrre cum iujttrtJk
* ot danmo alterius*'
A« for instance, there arc seveml statutea tliat
prohibit one man fr<un maintainini; another's
suit, thou|^h in a just cause* !^ec * Poultoo de
' pace Uei;is et Kcgni,* ui his chap* of 9iain-
tenancc, fol. 03,
Now it is held that the kinfj- cannot dis(»cnM
wilh tho^e lawef, because it would l»e to the
prt^udice »ud damage of tbst partiiular ncrkou^
oguhist whom the suit is ««i maintained by ano-*
th»r; firr th^*rr can be no maintenance, but it ia
I particular pernon,
^ a diatreas out of the hundred.
iku Ihcvc ill- many other penallaws, where,
b^ thu tratisgres^ingVf thcoa, do subjuut can
mi]
2 JAMES II.
Trial of Sir Edward Hales,
[1272
have any particular damage, and therefore no
particular action for the hreacli of them.
Ai upon the statute that prohibits the trans-
portation of wool, under a penalty. By the
breach of this law, that is, by the exportation
of wool, no one j^rticular man hath any da-
mage, more than every other man hath, but it
iaonly against ihe public ofood.
And the breach of such a penal law is pu-
nishable only at the king'u suit, by indictnieut
or presentment.
And the like where such a penal statute crlres
an action popular, to him that will sue for the
penalty, who hath no right to it more than
another, till his suit be commenced.
In these cases it is commonly held, that
the king may dispense Hith such penal sta-
tutes, as to some particular persons, and for
tome limited time, (whereof they make the
king the sole judge ;) beifause, as the reason is
lyifen in the chief justice Vauglian's Reports,
tol. 34'!, paragraph S, sach oflfence wrongs
none but the fing. This is now the common
receiveil opinion and distinction. And the
breach of such kind of statutes, are said to be
only the king's damage in his public capacity,
as supreme governor, and wronging none but
bimself. Lonl Vaugh. Hep. 342, parag. 3.
But if we will uarniwly search mto this dis-
tinction, and weigh the reasons so given, we
ahall find it is without any just ground.
The damage done to the particular person in
the cases past, in the first part of this distinction,
are merely his own proper and peculiar da-
mage ; and he is intitled to his particular ac-
tion for it, in his own proper personal right ;
and therefore if he discharge and dispense with
them, it is no wrong to any other man : he
may do what he will with his own.
But the cases in the second part of this dis-
tinction, are where the king hath a right to the
suit, and the offence and damage are said to be
to him only.
But are they so (as the former) in his own
personal right, as his lands and other revenues
are.^ or are they to him but as a trustee for
the public, for which reason he is called cre-
ditor pana f and may he therefore, upon the
like reason dispense with them, or dispose of
them, as a subject may do with his own par-
ticular interests ?
Again, shall a public damage and injury to
the whole nation, he more dispensable by the
king, than the loss of one private man ?
^fuit hccc sapicntia quondam
FuOllca privalis scccrnere
And therefore, in my apprehension, the king
cannot, in such cases of dis|>ensations, he truly
said to wrong none hut himself; and ii is not
agreeable to the definition before given, ulili-
tate compensator for the king wrongs the
whole realm by it. Whereas if he grants a
dispensation with a penal law of the iiist sort
of this distinction, he only .wrongs some par-
ticular persons.
The cases aad authorities for ditpensatioiis
in our books that were grtnteA in
times, will generally be found to be only where
the penal statutes were made for the king's
own proper interest and benefit at his dispcns*
ing with the statute of Mortmain. For insaek
cases it was to the king's own loss only, in ctses
where the king might by law have gim
away his lahds or services. So the king ias¥
in his patent of grant of lands, dispeniie win
the Statutes, 1 Hen. 4, cap. 6, that re4|uire
there shall be mention of the true values if
them. And by a Non Obstante to those sls-
tutes (which is now generally used) the kinf
doth in efiect declare, that it is his pleasnre ts
grant those lands, whatever the value of tbea
be, more or less : and the statute does by «•
press words save a liberty to the king in thsl
case.
The king is not a trustee for othera in sush
cases, nor can these dispensations be said to be
directly to the damage Of the public And
such penal laws as merely concern the kiagli
own revenue or profit, may justly bethought
to be intended, to be made only to put the
king's matters into an ordinary method aai
course, and so save the king a labour, as the
lord Hobart says; and so prevent theking^
being surprized or misinformed, when patcoli
are gained from him, and not designed to tie
the king's hands, or to restrain his powcT ; is
out of all doubt was done and intended by Iks
law -makers in our act of 25 Car. 9.
But in all the late cases and antboritis
which we meet with in our books couGcndBf
Non Obstantes, and disf^ensations, as in toe
time of king Hen. 7, and so downward ts
this day, we shall find them practising npoa
such penal statutes as merely concern the pob-
lie good and benefit, and the laws ut such S
nature, hy the breach of which the whole na-
tion sutfei-s: while some (Miiiicular persons, it
may be, by giving a large fine, or a }earlT
sum, ohtain the favour to l»e dis|>ensed wilk
and exempt from a penal law, while all otbos
continue to be bound by it.
As for example ; wnere a statute forbids tbe
exportation of wool, or of cloth uiitlyed or un-
drcsswl, under a |>eiialty ; such a law is greatly
for the public good, and it takes care that oar
own people shall have employment and main-
tenance. Vet this is such a law, as according
to the received distinction, the king may dis-
pense with, there being no particular dama^
to one man more than to another, by breach of
such a law, ulthoiigh it be a might v' damage to
the wiiole nation : for by such a clispensafim,
the person so dispenseil with to exp«>rt soch
white cloth undyed, will have the sote trade,
which before the making of that penal statute
was equal and common to all. I wish the
House of Commons would empiirewhat vast
riches have been heretolore gotten by such as
have obtained tlie dispensations with ibis penal
statute, besides the sums they paid to the
crown for them. Tlie9e are mere moBopsUeSi
In such a case it may rightly be appM,
that sin taketh oecasion hy the kiir. li had
8
fgr n^Uding to lake the Oaths*
A. D. 168G.
[1ST*
hma biU«r for ttit natum, that such laws were
nerer made, lieing no beUer observed ; for
hem ftgpiim iHc titspeiiauLioi] ts neUb«r uiiiitaie
nor ncrcsiitate penmta.
Louk tntu the Gi»e af Tbomas and Sarrell,
and yini m\\ find few or i»o cases of disjiensa-
liaoi inied out of our bt>nkij» but of the time of
king Hejii'y Tp and uiucb more of very late
tooDOs: ID that the ill pi*actice is still improving
•nd itrelchifi^,
Th<t Ivnl cbipf justice Herbert, iu the neart
place, ([\, 1^66,) procct'ds to meotioD the great
pueof S Hen. 7^ a I'esiiliuiori of all tbe judges
in ike egccheqatir- eh umber, »ip<»fi the kin^^^s dis-
petisirt^ with the stuttitc of *i3 Hen. 0, eE(>. 8,
that no man should be sberiff above one year.
This it the great \eat\ing cose and authority «
UfMHi which the main rtresa is laid to justify
U»« judf^ent given in sir fidwani Holea'a
cose.
I wuutd avoid repeatin«f what I have already
i» lately said to ibis authontv, to which (
IBttst reitr my reader, by wbicYi 1 hope it is
nott eviilently niade oui^ that the king neither
Imtt. M ver ha J any jii«t right or power to
Hi bill the rif^ht of electing waa
wjcifci...> .iuil f»ri*^iii]illv l»elon^ing^ to the free-
holders of the severaf coimties : and esinceit
waa unjustly taken from iliein nsthey have ever
ll«^i on the loi*iiij»^ hand ; it bath been lodjjed
U^ ?'**' <>fficers of the realm, m the lord
■pDCellorf loni treasurer, loni privy -seal, and
^ judgva, Ike. as ap^iears by the several sia*
ivtis.
And they are to make such choice every
year in th^* E\chequer, on a day apjiointcd by
ihe statute for Uiul purpose. So that the ^he»
riffs are by those statutes to rontinue in their
affic« l^r one year only ; and the king cannot
biitder such election,
Onlv by hi» patent or commiimion to the
ttiertfl^ hntb he used to signify 1o the sheriff
him^^ir that is so chosen, and to publiiih to
j)tt^'' ' ' ■ nSttsh 10 all others who the per-
Kii - no cho«en. ThU is afl thr ute
of iks^ j.-.vui ; but it is the pi'0|H:r election of
fliMC great officers that truly vests tK< m in
lMrofgc«.
And it doea as clearly appear, that when for*
mer king's have dispetnif^d with a »hcnH 's
Qoutjnuin^' in his office for longer than one
year, contnirv rn the iieveral atittutesso lorbyil-
ding il ' ulh so dune it by Tirtui* (not
«f liis |« , bttt) <i1 a K|icduf act of pur*
liament eujblujif him to tin it, forborne Hunted
Cimi? only. Nee lor this the sui ute uf 0 Hrn,
5, cup. a, in thi? stitutrs at largv", and my
btrger »rj»ni«rnt. foK 'M,
Tht irulh
ginally in il>
with a law, L^
l» aqual ; mn\
aor-
lar.t
lthcc«
vvf of th<pcnfing is ori-
>. He only cmdi^pfnie
J;r- ;: hi v 'fb*.* pOW*?
Ill ' iu confer the
-^ -♦liofs, for
by the
rs olh«rr
LT argil*
!%• oilier
tbin^ apoti that resolution of 9 Hen. 7, eon*
cernmg uheriffs, i
l*he chiel justice HerWrt supposes tW mia^
chiets recited in the ptemnble ot' that statute 4
%3 H» 6, cap. 8, concerning' sheriffs coniiuoin
in their otHces louj^er Ihiin one vt*Br, to K^(
ei^uaL, if not i» renter (as he judijes) than theia
mischietis rcciieil in the Klutu(«.^ of 125 Ca
by Papists being in ofiicciii; ami trtitn thenctt]
I prestinie, would in!tfr, that Ihe case of
Edward Hulpti is not so fatal in the con^
ipiencef as ihe case of a sheriff.
i may oppeul to any onliuary indg^mtiit,
to the sud experience and trial we have
lately hud^ and to the dauber we wetv so btely 1
in (from which Almighty Gcid^ by no leas tbaii|
a nitrucle, tiath in great mercy delivered the
nation), whether the mischiels thM conid anvJ
way possibly arise from the dispensiog witaj
the former (I mean Ihe statute concerning sho- i
riJTs) be coiii|Mirable to the intinite loiacbieAl
arising from putting l*api«tts into office, aniLl
intrustinq- tiiem with our religion, and atl
civil rightK.
Tl»e cliief- justice, upon tluise words of tb^l
statute concerning BheriiSi, viz. That no Nomi
Obstante shall make them good, infi-r ^ v • >) '
that tho^ words tU> shew, that the ) t
which made ih.it act conc*roin^ hliL,.., , .. iS*
of opinion, that had it not been for that clause^ j
the king couht otherwise have dispensed wita J
that nclhy a Non f>b«tante.
Anm* Tbij9 to me sertned a Btrait>ed m»|
ference^ and that it is very far from shewia
any such opimou in thai parliament. It rathei>l
flignifics, that had not the paHiument inserted!
that chiutic into the act, the king uii*^hi liarM
done again, m he had tVerpienily prnctisod be*f
fore^ viz, gi'ftntcd dispensations u(u}ti thatsta*1
tnte: which ill practice they endeavoured 1
prevent tiir the future, nor approving the prae*<
lice, nor owuing the poiier nt doing it, "
' niali»t morihiislHuite ortMolur lcg«:»», A |
law ralhtr eooiltHuns a cgntrary practice I
fore used,
I heartily de!*ire iny render {m I have donoJ
in my foreu''^»«og larger /\r;fuuit'iit) carefully to]
observe atid exiimint? of uh^l sort of natMrfft|
itntHt' ftic\erid casts are, which the res^dntion i
the csjse of *i H. 7* urges to ^^Birant that r
ijcdutiou ; as ihost* custm conc^^rning the tn
value of lands, wliii'li the knig gitinls ; ni
thai concerning the shippiog ot wo«»l to » et
tain staple, 5cc. and let the reader judge hnn
VHst a difference thfrt* is between those atatutet'J
m the Utitiire, and import, and reason of tbeitifi
and Ibis wci-^hly ini|M ' <a 1
us ; and huw little
7, can t»e W»rr*nt<id 1?^ im mstji mt h mrd
licing of so interior anfl minute a considera
tiou, in conipMrrHon olth^ |innc>pu| case*
It is Irnc, «ir Edwurd Coke (if the tv
re|H»rt which goes by his name, l»e tnilr bl
hath siiict; that rcsuiiition given in 2 }feQ. T
found out new and diHerent reasoiirs ami ar^
mcnts, which arc not nrged, ami ihtrelbre
prcsutne nerer aQ noch as thungbl en, at thitJ
1275J
2 JAMES IL
Trial of Sir EdivardHales,
[IK6
lime by Ihe t\relf e judi^oH, who ga?c Uic reso-
lution in that case ot'2 iHcn. 7.
Thus says sir E«luard Sandys, in his rela-
tion ol* the religion used in the" west pj-rts of
the world : those of the Roman rehgion made
their g^rt-atnef:s, weahh and honour, to be tlie
»ery ride by which to square out the canons ot*
their faitii ; and then (ii*! set clerks on work to
devise aru^uniciiT^s to maintain them.
Sir EfiwanI Cokoseeiiw to justii'v that reso-
lution conccrni!!^ sheriflfs, from this ground,
viz. That the king hath a soFereijJ^n power, to
command any of his subjects to serve him for
the pubhc-weal. And this is (says he) solely
and inseparably annexed to his person, ami
that this royal power caunot he restrained by
any act of parliament, 12 rep. fol. 18.
That it is not solely annexed to the kini^'s
person, appears by the several acts of parlia-
ment, which 1 have cited to this purpose in my
larger Argument, fol. 34, where the power of
dispensing with some particular acts, was
given to the king by the parliament, and by
him accepted for some shoi-t time. And the
wliole |>arliament have ui divers cases them-
selves exercised this very power.
Judge of the weight of the rea^^ons said to
lie giveu there by sir Edward Coke, by that
one insiauci; of his in the case he puts of pur -
veyauce, 12 rep. fol. 19. which (he says) can-
not be tai.en from the king, no, not by act of
parliament.
Yet we have lived to see it latelv taken away
by act of parliament ; which in tlie judgment
of' a |*arliament (whi(;!i is of the hiorhcst autho-
rity in law) may thtjrtf,>re be taken from tho
And is the king iu truth restrained from com-
manding^ his subjects to serve him fur tlie
public- weal, either by those stiitutes that
di.subic sheritrs to cun/uMu in tlu'ir oflict-3
lonjrcr liian one your, i.v by oiu* statute of 25
Car. '2j lh.it disables papish recusants to bear
public oiilcrs: Ikv-misl' souie very uniit, uii-
capalijo, and d:ui.'eri>'.is jiirsoiis are disabled to
bearof^iv(s of trust and power (and this by the
kiug\> own consent tu the act, and by the ad-
vice of tlie «;i\al c«»unei!, the p.irliameiil), and
iiidoed ol'iuc v\ii!>K' leahn?
Jiocs the k'kM;^- by ibif? (which the judges
miscal a rtshaihi) vtum ibr cluiice of lit [tov-
sons tj suvc i:r o:liLfsl' Dolh the pubiic-
wcal suiTer by this it>lri:int ':* Is it not rather
prcscrvctl by ii.^ Hath not the kinir protectant
subjects (uoui^h to bear oiiieesl' And arc
1)0;. ibh recusants (v%ho account protestaNts
ncrctic>, aud to be rooted out and destroyed,
and vnth whom ihey hold no i'aith 'la to be
kept, and against whom they have been con-
tinually pluitin;; mischiei*,) are these the fittest
to be inuusteil with the defence of the pro-
testant religion, anti with our lives and estates,
which are all concerned, more or less, in every
pubhc odice. and trust ?
And are those persons (the papists) that have
a dependancc upon the see of Home, and a
foreign power, lit to be intrusted with the
power of the nation, with the militia^ and the
sea- ports?
Is not this to commit the lamb to the custody
of the wolf .^
This act that disables papists to b<>ar offioei,
cannot l>e justly said to be a restraint upon the
king ; that expression sounds ill, and takes tW
niatttT by the wrong handle. It rather im-
ports the king's declaration and resolation, bj
advice of his great council, to employ nonea
oiiices and places of trust, but such as are moit
capable and fit, and will roost faithfully answer
the great ends for which they are so intituted,
that is, the preservation of the Protestant Rdi*
gion, which is the true Englitli interest.
And this agrees with the rules of the com-
mon law, tliat if an ofHce be granted to ooethit
is Inidoneus, the grant is void, though graole^
by the king himself. Of this 1 have treated
more largely in my At^ment, fol. 37.
The lord chief justice Herbert, (p. 1257,)
a>ks the question, Whether so ninnj solemi
resolutions of all the judges of England *in tbee i-
chequer chamber, are not to be relied upon fiir
law ? and I answer, that if they were ten timei
as many more, yet they are not to be relied oi
against many e.\press positi% e acts of jiarlit-
ment d irect ly to the contrary . For w bat woidi
could the parliament use more emphatical
and express, and more to the purpose, than bj
saying, that a Non Obstante, or a dispensatioB,
or a grant of such a thing (prohibited by that
law) shall be absolutely void, and ip»ofut$
adjudged void, and the person made uncaps-
ble to take ? And is not a judgment hi |Mnii-
ment, and by act of parliament, ofthebigbeit
authority ?
But, says the Chief Justice, (p. 1257,) tbe
constant practice hath been, tu dispense witk
the statute of shejifTs. 1 answer, it hath alio
been a very frequent practice too for the kingf,
to make such pei-sons shcrids, as were none ot*
the number nominated or chosen as aforesaid
by the chancellor, treasurer, judges, and other
great ofHcers ; and it passes for cunent that be
may so do, though it be a vulgar error : for it
haih been lesulved by all the twelve judges, Is
be an error in the king. See sir Edwanl
Coke's 'I Instit. or Magna Charta, fol. 559, aoJ
yet it is practised to this very day.
The Ciiief Justice, (p. 1 '25B,j seems to ex-
cuse Popish recusants fur not qualifying them-
selves for offices, by taking the oaths and tbe
test, <S:c. for that no man (suith he) hath itio
his |M)wer to change his opinion in religioo ai
he pleiiseth, and therefore it is not their iaolL
It i> an error of the mind, il^c.
Aus. Here is no occasion taken to find&olt
with them for their opinion; let them keep
their religion still, if they like it so well, who
hinders them. Tliis act of 25 Car. 2, iiuposef
no penalty upon them for their opinion ; out if
there any necessity of their being in offices.*
Must they needs be guardians of the Protestant
religion ? The penuty upon them by this ad
is not for their opinion, but for their presuming
to uudertake offices and trusts, for wbkk tbey
1*77]
for neglecting to take the OailiS.
A. D. 1686.
[1ST8
■re by Idngf and parliament adjudged and de- 1 or opinion of the House of Commoos hath been
clared unfit.
(Ka)^el259.) The Chief J ustice Vaoghan is
brought iu, arfi^ng for the king's power of
dispensing with (nominal) nuisances (as he is
pleaseil to call and distinguish nuisance.:)-
The word nominal, as there understood, im-
|iort8, that though a parliament declares any
thing to be a nuisauce, (as somelimes they do
Id acts of parliament, tu render them indisnen-
nble) which yet in its proper nature wouKI not
Otherwise be so conceived to be ; that such a
Dominal nuisance (as he holds) may howeTtr
be dispensed with by the king, though regu-
larly by law the king may not dispense with
uy nuisance.
Answ, Shall any singular or particular per-
•OD, though a chief justice, presume to call
that a mere nominal nuisance, which a parlia-
meot by a solemn act and Inw have adjudged
and declared to be a real nuisunce? Are we not
all concluded by ^hat a law says ? This aiTo-
ganceis the mischief now complained of.
The chief justice Herbert, (p. 1260,) says,
that from the abuse of a thing, an argument
cannot be drawn against tlie thing itself. I
agree this is regularly true ; yet we have an
imtancu to the contrary in the Scripture, in
Aat point of the Brazen Serpent. Jiui in our
cue the abuse doth arise from the very nature
•f the thing itself, from the constitution of it.
For the king practises no more in dispensing,
Ihao what these resolutions of the judges allow
liiiD to do by this pretended prerogative. The
error is the foundation.
They have made his power to be unlimited,
cither as to number of persons, or as to the
4ime, how long the dispensation shall continue,
fiir £dward Coke says, and so the other books.
That the king is the sole judge of these.
Nee metas Rerum, nee Tempore ponunt.
Tbechief justice Herbert, (p. 126Q,)cites two
flear concessions (as he is pleased to call them)
ef all the commons of England in parliament,
which he esteems much greater authorities
liian the several resolutions of all the twelve
judges.
But how far these are from concessions, will
easily appear to an indifferent render. They
are no more than pradeot and patient avoiding
ef disputes with the several kings. And there
are multitudes of the like in the uld parliament
rolU.
It is hut an humble clearing of tliemselves
firoin any purpose in general, to aiiridge the
king of any of his prerogatives (which have
always beeu touchy and tender things) ; but it
it DO clear nor direct alio\^ance of that dispens-
ing there raentiuued. to be any such preroga-
tive in him.
. However, I am glad to see an House of
Commons to be in so great request with the
judge. It will be so at some times, more than
.atolhers.
- Yet I do not remember, that in any arg^u-
.ifnnt I have hitiierto met with, a vote, or order,
cited for an authority in law, before aow. Will
th^ House of Peers allow of this authority for
law?
It will he said, that this is but the acknow*
led&fuient of parties concerned in interest ;
which is allowed tor a good testimony, and
strongest against themselves.
A?iszo. 1 do not like to hare the king and
his ()eople to have divided interests. Preroga'«
tive and the people's liberties should fiot be
looked upon as opposites. I'he prerogative i»
given by law to the king, the better to enable
him to protect aud preserve the subject*M rights.
Tliereibre, it truly concerns the ptople to main-
tain prerogative.
I could cite several parliament records
wherein the poor House of Comuions have been
fordl^d to sulnnit themselves, and humbly beg
pardon of the king, for d6ing no more"^ than
their duty, merely to avert his displeasure.
See the case of sir 'Fbomas Haxley, whom the
king adjudged a traitor, for exhibiting a Bill to
the Commons for the avoiding of the outrage-
ous expences of the king's house, 20 U. 2, num.
14, 15, 16, 17, and 23, and the Commons were
driven to discover his name to the king, and the
whole House in a mournful manner craving
pardon for their entertaining of that bill.
No doubt, as good an authority against the
Commons for so saucil v meddling in a matter
so sacred, and so far above them. Yet after-
wards, 1 Hen. 4, num. 91, that judgment
against sir Thomas Haxley was reversed.
As for the distinction, (p. 1262,) of a disability
actually incurred before the meddling in an
office, and where the disability is prevented by
the coming of a dispensation ; I answer, that
its being so prevented, is but Pctitio Princinii,
and a begging of the question. And to tnis
distinction 1 have, I think, fully spoken in my
lar<^r Argument, fbl. 40.
The late parliament, in making this act of
25 Car. 2, had, no doubt, a prosi»ect that pro-
bably the crown would descend upon a Popish
successor; and they levelled this act against
the dangers that might then befal our ri ligion
and liberties, and they tlioughl it a good seru-
nty : but it is all vanished uod come to nothing,
by occasion of this judgment in the cas:* of sii
Kdwanl Hales. And that must be justilied by
aFiat Justitia.
As to the objection that the Chief-.rustice
fancies might have been made a<rainst hiui, or
advice given him that he should rather have
parted with his place, than to have given a
judgment so prejudicial to the lelii^ion lie pro-
leases, (|i. 1262.)
This, ! say, that for my part 1 should never
have advised him to have*partc<l with his place,
much less to have given a juds^meut against
his own opinion. Hut let his opinion be what
it was, yet seeing the clear intention of the
makers of the law contrary to that his opinion^
and knowing the desperate effects ami conse«
quencea that would follow upon the dispensing
with that act (for we ware upm tbe bfiak ef
1279] 2 JAMES 11.
drutruction by it) and Ukingf notice (it this
Chief- Justice nnd the rest of the judg» needs
nuist) that the kingf had first endeavoured to
have irained a dispensiiif^ power in this matter
from hoth Houses (which was the fair and
le^l course,) and that yet that very parliament
which, out oi' too great a compliance with
those times, had over- looked so many griev-
ances, and connived at the king's taking and
collecting of the customs, (though in truth the
collectoi'K, and ail that had any hand in the re-
ceiving uf them, incurred a Prsemunire hy it)
not to mention the ill artifice used in gaining
the excise ; yet that parliament of Uie king's
bogglol nt the dis|)enKing witii the act of
95 Car. 2, knowing the mighty importance
ofit, .
And though they could not but take notice
tiiat so many judges at once had been removed,
because they eould not swallow this bitter pill,
and others brought into their places, as might
be justly susf»ectHl, to serve a turn, nnd the
king's teamed counsel could not at first find
out this prerogative to do his work with, till so
many ways had been attempted, and all proved
ineffectual ; sore in such circumstances it had
been prudence, nay the duty of the judges to
have referred the determination of it to a par-
liament ; and the rather, because it was to ex-
pound a law newly made, and the consequences
•0 dreadful, and the intent of the law-makers
80 evident.
And this hath been frequeutW practised by
judges, in cases of far less difficulty and con-
cernment. This I have also enlai^ed upon in
■ly large Argument, p. 96.
Olject, But it might have been a long time
before any parliament had been called.
Answ, We ought to have parliaments once
a-year, and oftener if need be; and * eadem
* praesumilur esse mens Kepfis, qnie Legis ;'
and we then stood in great ueitil of u parliament
even for the sake of this very case.
And these hasty judgments are one ill cause
why parliaments meet no ofitner ; the work of
parliaments is taken out uf their hands by the
judges. And it is the interest of some great
officers, that parliaments should not be called,
or else be hastily prorogue<l or adjouinefl.
As to the |K)int of the feigned action, which
the Lord Chitf-Justioe seems to justify, I con-
ceive, he mistakes the force of the objection.
Feigned actions may be useful ; but this action
against sir Edward Hales, is suspected not
only to have been feigned and brought by covin
between him and his servant and friend, but it
was trignedly and faintly prosecuted, and not
heartily and stoiUly defended.
This sidemn resolution was given upon a few
short arguments at the bar, and without any
at the bench, and upon other reasons (as 1 have
heard) which were then made use of, are now
given by the Chief- Justice; but Uie tiroes will
not bear them.
After all, 1 intend not by this to do the office
of an accuser, nor to charge it a« a crime. But
Trial of Sir Edward Haletf
[ISO
asltbinkmyarifbomid Ib ^oty, enthebchdr
of the whole nation, of myidf, (thovgh a aanll
IMut and member of it) and of my fricndi, I
mmbly propose, that the jodgroeiit mm k
sir Edward Hales's Caie, may, after a aae ci-
amination, (if there be found camK) be legally
reversed by the House of Lorda^ and that re-
versal approved of and coofirmd by a speehl
act of parliament.
[But as that judgment of the Lord Cbitf-
Justice's was of the utmoet coDsequeooe, and
his Vindication far from satisfying the people;
Mr. At wood, a very considerable man io liii
profession, at that time, undertook the answo-
mg the Chief-Justice: therefore to set tl»
whole matter in a true light, and to observe a
exact impartiality, Mr. Atwood'a Ffiraminniw
of the Chief- Justice's Account, is here iDaerted^
as follows :
The Lord Ciiicf-Justick HERBERTS Ac-
count EXAMINED BT WILLIAM AT-
WOOD, Esq. Babristeb at Law, whesu
IS SHEWN, That those. AcrrHOBmss n
LAW, whereby he WOULD EXCUSE TO
Judgment in Su EDWAIID HALE9S
CASE, ARE VERY UNFAIRLY CFTEDyAIIDAI
RL APPUEO.
Were it not the reproach of our timei, to
have had men advanced to courts of judiortaie
for other merits besides integrity and learaiif
in the laws of their country ; it might seco a
great piece of vanity in me, to answer a book
stamped with the name and authority of a
chief justice.
Yet, i>erhaps, I might be thought, not with-
out cause, to take this as my more immediate
province ; having been the first of the profes-
sion who ventured in public companies to shew,
how wofully that innocent book-case, 2 Hcb.
7, in relation to sheriffs, has been mistook, er
wrested, to sene for colour to that hasty judg-
ment in sir Edward Hales*s feigned case.
^Vherefore, how needful soever the chief
justice mny find it, to make protestations of bis
sincerity, vide Account, (p. 1951,) this may su-
{lersede any sueh from me. Nor would I wil-
ingly call Ids a protestation contrary to appa-
rent fact (especially considering that weakoetf
of judgment manifestefl by this defence), did ke
not give too great occasion for it. 1. Fron
tlie large steps which he took to precipitatei
and, as 1 am well assured, to soUcit that reso-
lution. Sd. The manner iu which he deliver-
ed it, widely diifering from what he now priols.
3. The unfairuess of his present quotatioos.
And, 4. The unhappiness, not to say worse, of
those instances which he is pleased to give of
his sincerity.
1 shall not dispute, or repeat his lordihip's
state of the case: but the question upon it
being, Whether the king may by his prangi-
tive dispense with the itatut* 95 Car. t, cap*
19B1}
J&r mgkaif^ io take the Oaths,
A.D. 168d.
[!»«
% Mqilifinff all pa^inns tu any nflied UQ<1er Itie
llMif , t(» Imktf tbe ten «|rjiiiiit Popery, t tb^ilJ
«ll«|aire,
1. Whcllver those Itaoki, which he relies on
m ftulbontj€« fot hit jutfgixieiitf gi?e ajijr eolotir
IB It?
f. Whcthfir, Bilfiiit they diil, they waiiW
QOuntrTiariof* the resol'ttun as he dclirrred it,
3, >Vhelhrr those tnsttitices which he o/ipni
of hi» niticeriiy^ may reasuiiably be taken for
Mich ?
4. Whether he in any measure clenrd him-
ielf imtti the in»putaiioii of bein^ highly cri-
nintif
His loniihip, like a master- disputant, begins,
tm he thinks, with a detinition of a dis|>ens4i-
tioti, whii'h hesays^ Awmmt, p. I25t, is given
hy the lord Coke:* * Dispensatio mali pro-
* hibiti est de jure Domino He^i concc&sa,
* pffVpter impos<»ihilitatem proerideniU de omoi-
'DIM particularibus : et dispensatio est mali
* proh)i»tti provida reUxatio, utilitate, len ne-
* o««»iit,'ite pcosata.'
h^lg^} I mnst say, he Fery onleartiedly
VSiPMiiie definition of a dispensing- p<?\ver, ^ith
me person in ^vbom itissuppuscd to h^ lo^lj^cd:
Stay, and the reason too vihy it «rhouid be go,
i^hich tieilher the lord Coke» nor common
iseo*«?, t;ives him any warrant to brintr into the
flefiflition. However it seems, arcuntiji^ to
this, o dispensing' power, in some ca^e or other,
Kesteil in the king ; which yet ii tar tVom
irtn^ any thrni? to his purpos*: for either
liiMTf r.n y iQ all caaes diapeuiie a^ to parli-
ciil , atid then his ili^tjnctioii wi umium
prv' , , . p. I'iSi*, ^xn\ malum in sc, falls to
the ground ; or el§e it reachea only to tfioite
ciiei, in which the judgtnent or flattery of
jndrea har«t ascribed it to him.
Ma ailds out of the lord Coke, 11 Hep,
f, 83. as an enlargement npon what be
oalla the defuiitinn, Inasmnoh as an Act of
FarliMnieul, which gpoeraliy pnduUita anv
thinj^f U(K>n a |ienaHy that ia pnpuiar, or only
iren to the kiotf, uiny \ui iticrrriveriitiatlo dj-
particultir persons, m ti v|m »! of person,
^toe. or place ; for lit is |iii^po*«p Itie law eivi^ji
a itow^r tu the k»Oij to iIk|mii^e^ with |mr*i*
'''''' '^ the lord Coke n^nni-
lity, to suHi »)» i*^ ^-iven
-. : „. ptfople, upon whith ac-
If* calU It pojinlar: nor, ritdf^d,
U\. Ill uk»» in what is t^raril*^ to
ill irifnrm ; it beiti^f nicntion-
r ion, whL'thcr before or after
ti commenced.
!!<• ItM-d Coke's words here, 7 Rep.
I Hit to hf reNirntned farth«^» is yet
. f-oin th<* ea»»e of Vvmn\ StJ^hiien,
wtird H^.'^l^erl\ in
inv more ikiiIj-
J'"
'Is.
iUi,
auKioij;^
!i*«:^ ii»e, hnvc *ot **Hltcd ihe
TOL. XI,
Lukm 11 Hep. lul. UB.
learned Sttarez fa J, who atWr the detiniiion,
which he makes to be Legu humttva refamfh^
in a distinct chapter shews, with wluira I lie or*
dinary power ot dispensin--^ fulil.h he distin-
guishes from that which s^ i) is Iodised,
where he says, ib. c* 14. i^ ' i'crtnm t-at
* eum habere ordinuriani iHitefiuitcm dis|ien*
* sandi, qui legfeiu lulit:* nn«l hr {rirf'<; ihf^ rrn-
son, * Quia ab pjtia rolun!- i
* l>endet/ So that none can I ,
but he, nr \\\ty who aie Tested uuli iiie Ugm^
iative exclusive of others, or such as h.iTO il
dele^*^, ' ' e. That the kingf hes not
the J 4 sire of others, is what I
have ioi Tin riv i»ruTi.d at larjfe ; f (► } ""•* " *'^^
on tbe other aide to shew, that th«. 7
power has been delegated to him. i *^^ inu*
tnnch mny be said on the contrary :
First, That tlie kitMr mnK! rot in law be^
presumed to have * power by
himself; for that th(^ in iJ it iIkjI
be should hare a council ciiose in t ,
who (as tbe charter ntiirmed to be «' y
of the ancient law, and sworn at the corormiioti
of Hen. 3. has it) (c) were sworn * quod
* negotia Domini Uegis el Hegni fideliter tmct-
* abnnt, et &ine accentatione personarnm oniiii*
* buH jnsiiiiam exlubebuni \* otid tluit it wi -
accounted the law h)n|^ aftrr that, ap^fcirs
Ihe impeachment of Uoger IVIoi-trmer, 4 £.
[►art of whieh wb,s, that, Whereas it i^ai «
dai^ed in the |iarliameot next af(er thr king'
coronation, th;>t f>Hir b'tRl>i>p';, fnnr earls, and
tour barons, ghoiild aUknd by th*^^ 1 1 > ''ur Iny
counseilier ; without wbour 'a ^r*'n
Busoign ne se FcuKt : ncverii . _ tuntr
wiiuld undertake to manage ah by him^tel
accroaching royal power if^'J anditiseasil
to be shewn, that such a council was In itn*',
continually insiUed on, as the right of the kini
dom, from the time of tbe charter, confirm^
2B Hen. 3. tdl the end of Ihe reii^n of Hui. 6,
S, \ piiwer to grant Non Obsi:uite& to sti
tutcs, could not hate been a ri(2[ht io the crow
at common law; for we have clear proofU
its o«lious and condemned bro-mnin^^ frcmi tli
sulphurous luuntain of Rome, as an bon<
popish la7i>'ver confesfied with a deep sii
35 Hen. 3. 1'his Non Ohitnnte Matthew P*
calls, a detestable addition ngnuiift all i
(aj Suarez de Legibns, lib* 6, cap. 10, fol,^
ap, 14, fol. S96.
(h\ V. Jus. AngL ab Aotiqno, et Janl. Angli*
Nov.
a)i
384, lib. cap, 14, fol. ti95
(b) V '
fa
(c) Vid. Mat. Par, de anno *?3 H. 3.
Rut, Par. 42 H. 3, m, 4,m. Ii^ V. Jan An-
Nov. p, 244. Rot Par. 4 E. 3.
(d) Vid. Rot. Piir, 5 E. *1. Ryley nl. jmrlJ
foL 317. Hnt. par. R E. 3. n, S >, 4 K. a, tU^
10 17. E* n. \% Halsinifham, M. 243. Vidi
Knijehtop, the* Ut Art. agJim^t R. 'L foL «r47.'
Vid. ctinm h II, 4, 0 .^f , It H. 4. n. 15. 1 H^
d. n. JO. ^4. 'M^ M H. «. n. 17. 31 H* 6.
:j8 Vid. liolls Ah f pari 179* Mat. I ar ed,
Tti(. lol. 7«i. Via Mat P4*r. fot. 15^7 illepi
dam.
4 V
1883]
f JAMBS n.
Tfiai ffSir Edmard HAm^..
MaAyainkftt ud when, Um vetr •ftn'»kiiig^
Henry nigcd the example of the Pope fpr Non
ObsMuiiei, the prior of Jemnlem ftye, God
IMid yoa ihoold om tlm nnpleennl uid mb*
lord word ; u loDff m yoa oboenre jnitioe you
may be king, andas aoon as*yoii Tiolale it,
you will oeaae to be long ; which ahewa bow
nttle fmrndatioD in law it then wai thought to
baTo ; and what the whole natimi thoi^t of
the Pope*! use of it, may be seen at larse in-
Hatthew Pkris, and Mr. Pinrnne's Animadrer-
aion on the 4tb Institnte.f ej^
Farther, the reasons gif en why the king
ought to ha? e thb power, fiul here upon numy
aceoonts.
1. In that the interest ofthe whole, of which
the Iqfpslators are the best judges, when they
make the law without exception, ought to out-
weigh allprif ate inoonveniencies.
S. The Law has prorided a moreoertain and
equal remedy ; haring taken as sufficient care
fpr the meeting of parliaments, once a year at
least, and I may say, (f) sitting too, as it baa
for the sittinpf ofthe common courts of justice ;
as appears from the iWT^ral statutes m prin^
and others in the Rolfa, which avoid the com-
mon cavil upon the words, oftner if need be.
And these were, like the famous triennial
act, provisions for the greater certainty of meet-
ing so often at least, but.no recessions from the
old law; which, as appears both 'by the Mir-
rour, and the life of king Alfred, (g) was for
the great council to meet twice a year at
London. .
d. The great reason assigned in the Latin
quotation from the lord Coke, < propter impos-
* sibilitatem praevidendi de omnibus particuiari-
* bus,' wbicn b after distinguished, as to per-
son, time, and place, can by no means be a|>-
plied to the case in question : For, 1. The law
was made but very few years before their lord-
ships resolution, and notgroWQ more incon-
venient by length of time, to any particular per-
son, than it was at the making of the act.
S. The law makers had in their immediate pros-
pect every particular person of the Romish
communion ; and the time when, and place
where the danger would happen if any such
were commissioned. •
Lft us see now what help he can hare from
his second quotation from tne lord Coke, which
(e) Prynne's Animad. fol. 1^9, 130. Vid.
etiam Sir John.Davis's Hep. fol. 69, b.
(f) Vid. Mod. ten. Pari. Parliaraentum
aeparari non debet, dummodo aliqua Petitio
pendeat indiscussa rel ad minus ad qoam non
fuit determinatam responsum ; et si Rex coo •
trariuro permitlat, perjurius est. As I find it
In an aocieiU MS. of the Modus. Vid. etiam
4 Instit. fol. 11. Vid. 50 E. 3. n. 177, 178.
1 R, 2. 05. This is acknowledged for law in
the kin^':j name, 9 R. ?. n. 4.
(g) Vid. Spelm. Vit. iElfredi, fol. 115.
Mirrour, p. 23^. Where it is placed among
the abuses oi the law, that parliaments are not
• bald twice a year.
ia 7 Bcp.1fiil.7S. But lie irtmiib TM|iii^
foL 37. and would have ithriwfwiltekfw
the opinioD of all the jodgee in Ijiigtaiid, % Jao,
1 . that the hug niay diuMfHU with u^f pifliaii-
larpenon, thatbeahall AoiiMmr the pdMiqrT
of tne sti^tttte, thou|^ it be aa act niMie /ma Ism
mtbttco; and that this ia a triftrt and caafidami
inseparably annexed tothe iwyalpswoaeflha
kmg, AoGonnt. p. 1S58. In wbidi» 1. He agni .
overthrowa hia distuiotion eCwalMm in as; oi
pnhibUum^ making thatrp6wer al; Inige, in nla>
tien to any alatnte pro bomoumklkm^ i. fit
manifestly perverta the l«d Coke^eenee, wh«a
manifestly perverta the
words are, 7 Rep. fol. sa. When n i
made pro ktmo jniMioo. and the king, i
of the common wealth, and the
juatioe and meocy, ja by all the re
with it ; this is a tmat and ceniidaieee' ih
separably adjoined. and anneaed to luamd-
ncraon, m ao high a point ef eovenign^, fl(s»
be cannot tndsier it to the disposition or pow
of any private person, or to any privaleaiir
for this waa committed to the kmg, hj aB hi»
subjects, for the public good, dcc« Bat tnal
is, that the king can, upon anj cnnae w^mit^
him, in respect of tune, jdaoe, or nnMy,dMhr
make a Non Obatante to dupenae with nay p«-:{
ticularperaon, thatbeahall notinonrtlMp^p^f:
of thia statute. . ' ^ a
Where the aole question waa« nf tranaliiiiit
over a penalty granted to the king, us eaAnihr
ed by all the raalm to see the nintnle pat ia
execntion, bw inflictug the penalty. Ikir
truat ia adjudged hiseperable,. and aol la hii
transferred over; but that however tiM kkv
ma Y dispense with the penalty granted la him*^
self: upon which, I must say, our diief jaalicf
has made a very foul atretch ; for what ia tUi
to the informer's part, concerning which tfcs
question before him was ? But surely then il
a mighty diffi^rence between tbeae two prepay
sitions: * When the tubjecu have i nliilid
< the king with a atatute made for the pokfia
* good, this trust is inseparable, and cannot ba
* transferred to another : but the atatute ao ia*j
* trusted, may be dispensed with ;* which ii
all that is to be gathered firom my lord Coke:
And this, vThough an act be made fiar tha
* public good, yet the Idog may diapeoae wiik
* It, and this is a trust and confideoMDo inaapa
* rably annexed to the royal peraon of the king sf
which is sir £dward Herbtft'a perverse csm-
ment In short, lord Coke saya, when tha
king is entrusted with the execution df a sta-
tute made for the public ^ood, he may dis*
pense with that statute. Sir Edward Ueibert
says, he may dispense with an^ atatute mada
for the public good. Upon which it ia to ba
observed, that the question in the lord Caks^
was not of dispensing, but granting over tba
penalty ; which penalty, he aays, is not la ba
transferred over: the other woiud make it sf
dispensing, and that that power is inaeparsbK
ana not to be transfernnl ; . ao apparanJ|y
changes the state ofthe qoeation*
His next step is to the yearJiook «f H* 7,C
11» and ia,m which he laafuanntBi ^ '^'
1285]
^/&r neglecting to take the Oath,
A, D, 1686.
[1280
yrnvt which is 11 . This he calls <he first, and
\ CMe which he cites, wherein the king's
fOfiing' power is tlescribcd untl It mi ted.
_1|/fire m m dtventity, says ihe book Account,
' p- 1^53, between malum prohibitum and malum
* rn le; us a itdtute forbids any man to coin
* money, and if he does, he shall be hanu:ed ;
^ Ibis is maium prohibitum : For l«fore the slu-
* lute, cniniri^ money was lawful, but now it is
* oot so » and Uicrefore the king can dispense
< Willi it. So it a man ship wool in any place
' but Calais^ it is malum prohibitum, because it
' is f>rt>htbitcd by act of fmrliiiment. Hut ihat
' which \h muium in $€t the kiiigf, nor no other
* person can dispense with : as if the kjug'
* would give a man power to kill another ; m
' license one to make a nuisance in ihe high *
* i^ay, tlicy were void, ami yet Ibe king can
itloa these things when they are done.'
this case it h observable, that tlie power
mg is here asserted in relation to
J not persons : wherefore according'
;en in sir Edward Herliert's latitude,
ing may ^i-ant dispensations to all in g-e-
_ , where the matter is only malum proAi-
Uum : Whereas he himself oivns, that the na-
ture of a dispensation is particular, and mven
to mrticular i^ersoas by name. 2, Many things
in Maie'Da Charta, nay the most, are but mala
]^iia .' and 8o Magna Charta itself may be
ited with, when he himself oivns, tliat the
_ cannot dispense with one tittle of Mag-na
CharU : And metliinks he could not hut ob-
aerve thU contradiction. Wherdore the rule
Ibere, admit it were a judg-ment io law, as it
aot^ being only spoken obiter, by one of
judges (h)t can be applied only to such
I as arc there cited. The first is that of
csoinliig' money, which goes upon tlie ground
ia Moor's Re|H)rts f ij, where il is said, that
statutes as g^ive a prerogative may be dis-
' with: And that of shipping wool at Ca-
liids, the kiiitf^s staple, is of the same nature ;
and bijth sutficientty shew the distinction of
maktm prohihitum trotn malum in *f, to relate
jbaraJy to such things us tie<*ome evil by acci-
dent, as they are a;^ainst au accidental prero-
fj^ilive: which no way iuterferes with the
right- * *•: Mibjects in i^eneraJ, or particular.
A' k wonder that sir Edward Her-
bert ^i. .1 - ' .U! my lord Vaogljan, in the cast'
of I'homas an<l Sorrel, as cuutirming what he
would infer fr^m the year-book^ when lord
ymgliaci suys, fol, :}32« That old nde has
Ri confounded men's judgments on the suh-
ilian ri'ctified them : and loL 33.1, himself
HI tliat the king can dispense with evi^ry
m prohibitum by statute, Ihotigb prohibit -
b#a inr statute only.
Oil, but my lord Vaugban shews, that a dis-
fA > Chief justice Fineauz, 1 1 H. 7, f. i% H.
>» (ij Moor's Hep, r. 714. Indeed t hi* Ixwk
ipcaka fi\ -^ ■''■■' 'nfj \vith f;t-* :'
MtailiiD^ ' ; but th s
not the H4-v...„,A . ,in .T. < 4 tilings Ibrl*^, ku^ ^iib-
|oct for the limitation of thai (lOWcr, Vid. infra.
pensatioQ does itts dure ; and makes the thing' \
prohibited to all others lawful to be done by ♦
him that has il. Does he say this of every '
malum prohibitum ? By no means ; VVhcreliiru *
we Tnusl apply it 10 ttic case tiien in ipveslion,*
which concerned wiac^hcenses ; atiout which
the king- had a prerogative bv statute law : • ]
and the dispensing with that, falls w ttlnn the
rule in Moor (k)^ agrcemg with the lord*
Coke, in the cajje of penal «tauiti's (t). Yet
even thus much was a point gamed by tho
prerogative, since the 1st of H, 7, for it jh then* ]
made a doubt before ul) the judges oi Kitghttid,
in the Exchef|uer Chamher» anil adfunrued
over for the ditficulty ("«)i Whether the king*
could license the shipping wools elsewhere than
at Calais ; one of the very instanceji winch sir
Edward HcrbtTt relies on: And chief justice
Hussry was positive iliat the king could uol '
license ; though iudecd the chief baron, and '
some others, held as Fineaux did alierwards, '
Wherefore nobody of less assurance than our *
chief jt^stice can say, from 111 ese cases results '
this plain syllogism:
Whatever is not nrohibited by the law of'
God, but was lawful before any act of parlia-
ment made to forbid it, the king by his dispen-'
satioD may make lawful again, to that person
who has such disrieusatiuu, though itconiinuea
uulawfuho any body else, &c. (Ace. p. 1253.)
In which, if we c^raiit his major, I will own,
the coQclttsion Io uring it to sir Edward llates's
case is not criminal. Yet the proposition is so
pernicious, striking at the very fouodaiian of-
our government} that if there were a resolution^
instead of an extra judicbl opinion, giving that
couuteuauce which even that loose opiuion
docs not ; yet it ought to be rFJectcd ; for if
all acts of parliament, cootrary to Magna
(Jhnrta, aia void, as some have held, I uni sure-
much more so would such rosoJuiiouH of judges
be. And that such an one would t*e comrury
to that Great Charter, is evident : for no man
cao Kay, that all tilings prohibitetl by Alagna
Chaila, are prohibited by the law of CS<mL
To come to sir Ed ivanrs next great case* aa
l»e calls it (Ace, p. 1 25 1) hut indeed the only one
which has coloured therescthnioJi to the world ;
whit'.h is Ihat 2 H. 7. Notwtlhstnntling his
promise, he ha^ not been »t» fair to give
the words of that case, or so much of
them as is tuatcrial, lest every body might
judge of how hllle use it would be to bim ;
tiiiVf Icjbt men should be for !iati$fyi tig their
ow'n eyes, he has not directed to the folio.
The' English of the material part isthuii (n) i
' In the Exchequer- chamber all Ihe justices
* were tihewu for the king^ how king Edward
* the 4th, by his letters pat**nl, had constituted
* the ear) of'^N sheriff of the sume couuiy \
*■ and had granttMl the said earl the olilcc of
*■ sheriff ol the said county tor the term of bia
(k) 8up. f. 714,
(t) 7 Hep.f. 30,b.
(m) 1 H,7,f. «, b. and3, d,
(nj 2 H, 7. f. 6. b. Ac 7 ••
MoBviftff; ntideriaigtoUie Ung at loses*
cbtffuer, aiiDuaUT, iO%L witb^K.uiy ae-
couQt, 9^ wy oloer tiilog to iie gifw, ibr
jt,a0c.
.& Now, 1. ^¥lMthcr this patent was good?
And aUo, s: How thu potest aball be in-
tended f were tlie poinfs in ^nestioo. Andaa
to tbet fint point, toe juetices bold die patent *
Igood ; for it 18 a thin^ wbioh may w«ll be
ffranted for term of life or inbontanoe ; as
iSivera coontifo have a sb^iff by inbeiitanoe ;
juid this Gommeneed by a |;mnt of the kin|f.
Tben was shewn a resumption : and then was
f hewn a pro? iso for H. earl of N. so that the
patent remains in its force. Raddiff shews
'diestafote of 98 E. S, c. 7. and S4 £. 3,e. 6.
That no sheriif shall be more than one year,
fcc. althougrb -he bad a Non Obstante. And
kiotwitbstandingthis, that the kiog shall al-
.wajTS have bis prerogative, as of toe value and
t)erteinty of the hmd, aod other things granted
Sthe lung; and of wools shipped, aod of
arters of mnrder, and many other eases
sihen the statAtbs a^e, That patente that want
these things shall be void; yet the patents are
good with a Non Obstante : But withont a
Non Obstante the patents are vmd, by reason
jfi the ststntes. 6o here the patent, with a
NonOhBtente,dce.'
Thb is all that is SMd in the book upon the
frit point; upon whieh it is observable^
1. By theboofcit would seem, that thisJUd-
diffwasbotaseijeantatlaw'; Ibr at the end
of ths caae Brian Justice demands of Brian
Badclife, kc. Yet indeed T find upon search,
that he was a baron of the exchequer.
3. What Raddiffsayji, is after the resolution
of the judges is over, and no way influenced
that.
3. Whereas sir Edward Herbert says, the
resolution was upon 23 H. 6, c. 1. Radcliff,
who should better know the subject of debate,
discourses only concerning the statutes, S8 £.
3, c. 7, (o) and 24 E. 3, c. 6, which are barely
prohibitory, without any mention of Non Ob-
atentes, or any avoiding or disabling clause.
Indeed Radcliff, it being upon a siulden dis-
course, as the book shews, mistakes the sta-
tutes, as if they had such clauses, and Brook
(p)i who cites part of the patent, which it
seems be had seen, says, there was In it a Non
Obstante to the sUtutes 88 £. 3, c. 7. and IS
£. 3, c. 9.
Fitzherbert (q) indeed says, R. objected the
S3 H. 6, but for that sit liber judev. •
4. But above all, though our chief justice
oalhi them the judges enemies, (Ace. p. 1255.)
who say, the point of Non Obstante is not re-
solved in this case, which he calls confidence ;
and that they may as well deny one of the ten
oommandmenta : It is maniibst beyond contra-
diction, that the resolution ended at * issint que
'In patent
(o) It should be o. 9.
(v) F. 7. a. Brook'a Patents, n. il.
q) Fits. Ab. tit. Qrant, n« St. ,
wentnnoBt
1. iWthis waaathiagl
rilanoe,oriMrlife; '
not be presumed (
tery statutes: an
baen upon ^bo other,
of tfao«tatate;'ftrtlMCr)i
in whinb «r«B flf the
people be inbesitnbte •» tfan aCsi
of sberiirat the ni^mg of Hw alafU ; mk
pcnsona wim hafo asiyn of iiashiM
the office of sheriff, U tho mafc'M of Ihi
to bo tewnbodbythopiihii
id bcsidsi, if the Mirflw had
bar, tho oMolte'ien m m-
letters patent mado to tbena of liin •
aherifis, dse. Now whsihtr this worn as
ooonty so mheritaUa, or of an osinte of i
hold, at tbo time, or no, is not no serf
bekig at least it was so lookod «poa -hy
jndg«s,nay and by the parliament ton, as
ipljUw
?,.
that thia ooonty wan snohna nat.ltete
to bo also true intact: ftrftiatobofMrniitoiL
that this wss the ooonty d'Northnnsbsrifmift;!
which waa a Pktetinato; npaa
son this, with othermntieannisrity wnsM
ont ef tbo snrvay fn r
pemdimtiaiubui likeri : This '
pnned Comberland and ^
other coobties : in the test of wbioh, the
wick M at thia day ti^yed in Ibn.
Northumberland onmoaoon into tlw«
early aa the time of WiUiasn «, n|NNa tbo i
lioD of Mowbray,
the timo of William ^o irat i But thai
rity in law hi moeh clearer, that tiua t
wick, if erer hehl in fee, would ranaain m iha
crown as an inheritance in grass, and was Sit
merged, than any sir Edward Herbert haa pm-
duc^ on his side : for which we may obmna
the rule taken in the case of the abbot of flferHi
Mcrcella, 9 Rep. f. £5. b. which is ibii:
* When a liberty, franchise, or jurisdiotian vas
* at the beginning erected and croited by the
* king, and there was no such flower in tbs
* crown before ; there, by the aceeaaion of tbssi
* again to the cruwn, they are not ostinet'
Where instances are given of tM esses
markets, hundreds, and^earhkNDS;
any one say, that aheriffwicks
flowers of the crown : but more directly ts
our case, is that between air Robert Aikias sad
Riibert Hoiford (t), which, though not in ear
books, is well known. The case wan of tbs
grant of tbo seren hundreds of Ciranoertnit
with the returns of writs to the abbot ami cm*
rent of Cirencester: this came to the erown by
the dissolution of mooasteriea, 31 H. S, bat
yet that it was not merged thereby, but ra»
(r) «3 H. 6, c. 8.
($) yy. Camb. Brit. f. 116. Vid; Dogdals%
Baron, f. 9. Bromplon, a. £ 770» ad tOfl^ ds
Regno Mortbnmb.
CO Sir Rob. AtkiM, 1^ Rob. HaMM 'm
SeaodMuria, HiK 9g> 9S Gbr^ Vid.Bl^
for ne^kctif^.to lake ih€ Oath,
1 mmn without the
iw dpi
A. D. IStfif
C»«90
■c:
iBftioed «B an inkeriltoce in
o|' atif ftlMule, w.it l(i« dpiniuii ut' ll^
lai^i(« tUrri 4:liii'r-l»«ron, aimI oI tt^o
luiroQs, Windlhim Btifl Turner. Furl of
uriMYts, as 1 itnd tLrni exrelteotly itell
I, ftuU lu II Iv tbi^ pjitilt are :
^ 8ut.h iiutHlretU a» uere vuciently scivereil
* frouj ttie c'ouiiUtiH) ami come u^um lo iljc
* cruwn by «:chcat or toriViiure, were some-
* tjm -s. ^ttt tartly coaimilleU to the sliciiff,
' »p ! to ibe cuiiuly^ but lor the toost
* jj ^ ilinimcl : Ii4>t. Oreviunj, and the
" bitadied to which it wat imncxcMi, i^riUiout itn
* •rtiml anil <itt?njil re-iiniieicinij to tlie rounty ,
* n ' I for the Rot,
* J' nnvo. Sup-
* |iiiM' <L VH.IC ii cimitoi jiii i^'jicjion in^irvlv
* created by the kin;^, aud tite huiuir«il iimdf\
* tii<»iigh aucient, yet by return lo the crowo it
* b out uter|j;efi or anoext'd : Tliic [ know in
* Ihe uASiC of il'' crinrtH bfUiu^nii|^ 10 the ho-
* BOiiPfl of t»\ ui\ HerelVirO, that c^mc
* to II. 5| b^ ^ ot'ik coheir, it i> Ntill tn
• Thifl were enoqg^h to slteir, that the jude^ps
revotutioti 'I H. 7* hud r li«tter legul founda-
tioo than t%hat &ir Edward Ilerherl would 6Ug*
geat.
g. But then^ besides that, there was aootbcr
ind iiRivliooeil in the hook, which wax,
it a rc:>\ini(itioo wan shewn before the jfiidcf<» ;
ind then viVLA sheivii a (irovis^o for H. eurl of N.
amJ »io, Hays the book, tha jiatecit routains in
iia fori'o. Tills rcsfiiitphon waft i*n ftct of re*
mm) [it ion I il. 7, aiuJ if this act provided for
tital enrl's ^rant, a* i'"'- ..,,r*.,, ,• — ^m*^
lllOll^^ht it did, wlio C4n N .i»
good? The aft of rLh -., . - i ^ i lU
nfioD record, Rot. l*arL 1 il. 7« purt ^. It n a
ra«iiinif»tion «»r ^ritois uiade bv Kdwurd the 4th ;
mid ictioQj,^ oihc rt» uj tbe yt4is, that ia« gitts of
liHicea: Tiie pnitj^o ruiu<'thui*;
' Provided always, thiit this act of rvsump-
* tion, or aiiy oihcr act made, or to he made, rn
* liiia pre*eiii pariUumntt, be not in any wiae
* |irir|iKht:iAl or burlliil to ibt^ icrteral i^rants
* and bi ill* made to fleiirv ejtrl of
* North \* ^c. VViiieh inilced duea
not 1 1 k k _ I )^rai it, hut sii ppo<(^ all
ilu' :: 1 "I 1 jyij^H^ in iii^y . uur would
I adtiiit with him, (Ace p. 1 ir»5,) that Fitz-
lu.t t.vK Ml.! Ihat truly, llmt the (latent
! ; but the ic^^iou h« jkTi^'^A
J 1 l»ave Hht*wii ; his words
i a thiu^ u».-iy l>e ^muiabte for iu-
fi for life. Auil tlifti I am »urc' that
file slai4«t«i d<K*i» not aay exprc^MMly, the patent
flitail fi>e void, though mr Edward oiiinua that it
dot)*.
* Obj. It may he olij^cled, thai lh« exi'#pliott
in tht' Mtatute i-t'bit4'4 to e^t \h-H in the auh)^*t ;
ifiat if till"* %» '-vt* im uu«*rr«4i in fgroa^ in th« kiny,
M»f' lak.n from iiim without
atil bf d^i'iuetl mi*,
I iir '.'.tw . Miim Howden, (Ace. p» 1255,)
he of uo mora acrvicc ; for b« ooJy «»>«»
there it is hckl { and I agree it ii held hy Rjid^
clitT, with a 111 intake of the statute, Th ~
%Uf king' can ^aui a Bheriffififk for monij
than a yior : Vfit wlicicas he toa^rnifi
tJtts ae riled bv Plowdcn, witn, as he so|)
Willi understood Uit i*eo*o of the y^'ur-botik ;
It doeti not (m) iip{K:ar thatilHaa rioMYtfa^l
hut one who waft of council in the ca^ lor lb
defendant, who iskcntionfi this.
^, Me iTjeutiona it only as a case in FitJ
Uerbert, f^lowdeDf f. t^O), wilhaiit relierrtug I
thebi»ok, f H. 7.
But ihe second point rAi«^ed before th#]
judge!*, 2 H. 7, whif^h o^ciKioncd lltr maiuda^I
haU in that cn^ jit^ars by tlie book^J
ahewa, that ilie could not l»e upoii]
the point of pri"**>j4Tu>r -, for tl
wheiber the kto^ could di»(*ef>
prolii ; and all the ju^h^es, e\
Cttteftby, held 4 that tbe paien^
for tbe green wajf, and oilipi
standinii the claurte of o V ^
hjtJi : but the debate con. ^ her (biufl
arisini^ upon that second point was adjounie
the lirt»t res^rlved U[H>n fhe ^rouud» above.
Though hitherto there ta no pro<»f, that ati|
due of authority in the law has taken the \
$ IL 7, in sir Edward Herben's »eti»e« wbic|||
yet would be ot' no moment if they were ex«
press, being ttie hook is to be 8een, and cleartwj
citbi^rwiae ; yet he thinks my lord Cokr^ will I
bear bitu out, an<) to thiis purpose he cites tw<^|
places : one, where he supposcsi that the lord I
Coke iiot only authorizes thi$ ttense of iIh
case, hut asserts tbtt prero'^ative. Ace. p. 1 <:3d| j
ill much higher terms than they ^"
Aittne to do : and b\ the aet'ond be V'
it bebcvetl, that if tlie lord Cok** bi _ ■_! ,..al [
reporti^r, all tbe jinlgea of Eii^Uod Look th«| j
case in the Kime Kense.
The (iryt is the cane of custnitts, 94 Elis^J
which IS pregnant vviih many object inotagaitiill
its t»eiiig of any force in ih^a ca*e.
i. Tbe bof^k, '$ Rep. f. 17, iu of iutperte4j
authority J »t*Hl in tbe late timet^, anilj
wliat the 1 never owoeil, or tboughl J
til lo print m hm Idc time.
2, Vim cornea ioi^ted in among cai^ea iti th
time of kiag Jamea, without any pai^llel
whi h mii^lit occasion the pL\c)ri|; of k ttieiv'. ji
ta, it waa when the lord t'oke w»» bat %'\
young re[H>rter, it being ten yearii before ht I
waj» king's «oUcitor(^J.
4. It in not only no point in question relating^ I
to the cnsc where U ii cited, and so e)iir»judi-*|
cial, but wholly foreign tu ii; For diequeHtioftj
was, whether goodsi »old before lhe>
landi^l, were to pay custom uiihut the atatuttf J
1 Ehz c. II. Wherefore being barely a nie^l
moirauduin iti* a yoiuiir reporter, no way ooofti
aifvued by what went belore, it cauiiot poitiblj||
ha^e any weight. ii
5, The iaucipd reasoo bere given why lh#J
(u) Grendt^n, ▼. eveaqut tie Lincoln* ^J
(g) Wax made solicitor 16 Jdtie, 54 £lk. '
Dudg. Chrou. 8cric»| t\ 99.
U911
9 JAMS8 IL
s^fWk^ait jEdWtlf9 IMUtif
JdAg niiy diipeiise with tbe statute of •heri£h»
» none at all : for whereat it says, IS Rep. f.
18, * That the Idnijg^ has a so? erSgn power to
* aimmaod any or his sabjects to ierre hioi
* lor, the pttblie weal, and this solely and inae-
<* paraUy annexed to his person : and this royal
* power cannot be restrained hy anjr aet of par-
« fiament^!* There is no authority cited for this,
but the case of 8 H. 7, which, as appean to
any body that reads it« neither has that reason
been mentioned so much as by any one judge,
nor ib the least ffoes upon the point of the pre*'
togatif e. Besides, if the kiiur can command
any subject to ser? e him for me pub&o weal,
•citner he is to be judge, or the laws : if the
latter, then no person^ not qnalifted by kw, is
obliged to act $ nor though oualified, to do any
thing forbid by the laws : if the former, as the
words imply, then the kirar's commands may
be pleaded to justify any ill minister who has
leodered himself obooxioas to the laws. But
that this cannot be, is suffioieotly 'e? inced by
necessary examples in all ages. A^d this, by
the way, may shew bow false, tm well as per-
nicious, that doctrine is which trils us, that
VbmU in the New Testament, always signifies
the authority of a person, not of a law. Or, as
another has it to the same pinpose, *Bj
* higher powers, it is et ident, we are to under*
* stand me persons of sofereign priaoss, or go-
* yemors, not the laws and oonstttntUMiB, as oar
* republican doc^bors pretend.'
Of the same batch is ano^ier memorable po-
sition, « That the kmg's most illegal act%
< though they haf« Mt the aothoiiiy of the
* law,' (for indeed, to say they have, woold be
a blunder with a witness,) * yet they have the
* authority of soverdgn power.' Some mSt
say, that this is qualified by what follows,
* which is irresistible and unaccountable :' as if
the king had this power only so far as it is irre-
sistible and unaccountable. Whereas it is eri-
dent the proposition is entire before, being the
medium whereby he would prove, that the
king's illegal acts are not inautboritative : in
proof of which medium, he afterwards af-
firms, that the sovereign power which made
the laws, and can repeal and dispense with
them, is inseparable from the person of tlie
prince.
Reduced to a syllof^sm, it runs thus ; * The
* authority of sovereign power is irresistible
^ and unaccountable ; but the king's most il-
* legal acts have the authority ot sovereign
* power.' This is an entire proposition upon
which he concludes, ^go, * the king's most il-
* legal acts are irresistible and unaccountable.'
This assumption he c^oes on to prove from the
supposition, that such a sovereign power as he
describes, is inseparable from the person of the
prin'*e ; upon which, or the like doctrine, ano-
ther raises this comfortable use : * In all sove-
< reign governments ' (and such he at large en-
deavours to shew England to be) ^ subjects
* must be slaves as to this particular ; they
< must.trust their lives and liberties with their
* sofOTign.'
Bat for thehoMwKiorov goiro, Mi w^lr
aaki, That sodi beratiDs new appewei amsig
lawyers, till divines began Ikek to wi«t tts
laws and scriptorss to tlMir own dimasliMi.
But as the former ^uotntiaD oot of thn laid
Coke can do sw Edward Herbert na serrfei^
npon the reasons aboftf shewn ; uoeb lesscii
the other, which is ooeof sir Sdlwird's asad'
perveisums : He telb ns, (Aeo. onto p. 1100:)'
That it is resolved by all the jodges fif my M'
Gokebeafiuthfol reporter), that it k agreed t
H. 7. that the king mav, agoint tha ospias'
provisMQ of the act 9d H. 0. dtspenae with thif
act; forthat4heactcoahlnetbarthe kiogsf
the service of hissoljiecti, whidi the law sf
nature did give unto him. Heodda, tMsisv^*
porledYuoless my lord Coke had a nsind tsda-'
ceive tne socoeeding jadf[«s, and draw tboB*
in to give pernicioas opinioan) as the sense if
all the ju^iea of England, w king Jman&f^'
time, in the excheqaer-cbamber. Wherair
the lord Coke, on pnrpoee to nreveat soek sa
abuse of his words, says io tlie boginniog if
the case, 7 Rep. f. 4. ' I shall give no nstol-*
* tooe to any, if I chaUenge that wbiek W
* r%ht is due to every reporter ; that is, to r^'
* dace the sum and efleoi^of olf to oock a oie*
*thod, as upon consideration bad of all-lba;
* afffumenis, he fciteself thinketh to be fitMrt
* and dearest for the right onderstandiag of iht
* troe reasons and causes of the jodgnwot, Mi"
* resdntion of the case in qncation.'
a tedious arffiiment as that m Calvin's osss
was the resolution in which the judges coo*
corred in every expresnon.
But sir Edward Herbert's own eyes migfat,
and ought to have satisfied him, that the jaqras
2 H. 7. gave no d^rmination upon the 93 H.
6. nor does the book say, that so mocb as any
one person q>oke to that statute, or oaentiooeil
the reason devised in Calvin's case ; For that
the act eould not bar the king of the senice
of his subject, which the law of nature did give
unto him. Nor could sir Edward chose bot
know the absurdity of that ground : for ac-
cording to that, all ought to m left in the state
of nature, as it was before any law made ; sa
that not only any person might act, though
prohibited by sub6CN[|ueDt laws, but be nii^
act any thing forbid by any positive law;
which would make a mad workl. And this
would come of a natural allegiance due to the
person of a king, without r^pect to the lawa
of his government (y). And the readntion of
the judges in Calvin's case is quite contrary to
this supposal ; for it is there I'esolyed, That
they wno were born under king James'e alle-'
giance, before he had the crown of '^
gpg*«tt^
(y) ¥id. archb. Abbot's Exceptu>ns to.M^
thorp's serm. Rushw^ part If. 489 and-itf^
touching the grand quest, a* p. glO to S14i 1
InaLf.6a.b. - * I
rii«pcused with by any Noti Olwtante/
f gives unoLher resolution ol' jntlgfes^
^lOl su solemn as llie rurrner ; yet what
h w'firranlcd in the honks, nntl the re-
comes i»|i to our case i^ tcnninis^ 3
151. his woniinre, * When an ocl of
)ent is made, that ilisnhleil any person
;elh »ny thini^ votit, or toniouH* Jor the
" the chnrch or common- weal th ; in
m all the kin^'ji s^tihjecls have an in-
mmi therefore the kinsr cannot dinpeufe
ilh, no inoi-e flian wilU the common
chimerical fonndaiinn of solemn re-
heinir thus rfcstruyed^ I need not con-
»cU n iih llic vaiti/airy soperstrticture,
UiHi vaiiibh in fumty ; anil In&tend of the
>VliQt mav he rchrtl n[mn, if such re-
~ mny not? Aec. ante \\. 12^16. 1 appeal
laiikinrl, whether our s»^ses are not
ijuify^es again*<t those accidents, sub-
iihoiit any suhject, mere transuhstan-
insetiae ? Such are reasons demised for
lion which never was to he seen.
re lire lold^ That besides the authority
ase, we have constant nractice that
ite has been dispensed with ever smce ;
M-ere not so* the consequences, would
tuff *■ illegal c^invictions,' <Sec. Bui to
nd jua noil valet artrumentum/
le^ral difterminaijons on the sid«3 of
e fact cannot he shewn, for any sberifi'
enjoyed tlie oriicc for more than one
IJie mute patent.
iwevcr llie conKec|uejic«fl would not ne-
follow (a) ; \qt wc know, eien laws
^' g» d€ fticto^ have aK^ayR be«o
iMiMho^Tt and so liuve itii^ admit*
hold ealalefl. made bv diaaniniirr
have shewn above ; yet is no more than
the lonl Coko *;nid tifvewhere {b)^ immen
atler he had denied that power in tliit»i(8 matTi
void *ir tortious, for llie (jo^kI of the church or
commonwcalili ; in whirh, he says, all the
kinp*i» uubjects have an interest, and therefons
the kin^ cannot dispense therewith, no mora
than with the common law.
All that h more, in serjeiint Glanvtl, relatef
only to the nature of those laws which were
then insisted upon ; if he went further, it
could no more lie an evidence of the opinion of
the House of Commons in that point, notlHftng^
the point put to the question, than his quota-
tion out of Calvin 'si case, is of the opinion of
all llie judg-es. But the first part of his speech
cannot h»> stretched farther than mala prohibit a
hail fordierly Wen taken, that is, in relation to
new preiogatives, or at least ihingfs wherein
the subjects in c^encral hare no interest vested
in them ; and he expressly rcjiti-ains it to such
cases, wherein Ula majesty, by conferring
grace and fitvour upon some, doth not do
wroi»^ to others ; As it is in my lord Cok*
ftlkove, and in Moor| (c), where it is held,
that statutes which give a prerogative, or re-
strain the prerof^tiie, may he dispensed with ;
hut not sur^h as pve or dispose of interests.
And as to what restrains the prero^-aiive, not
coming within the tnah prohibtta^ though it
falls not und«T consideration here ; yet %vemay
obser^a the difference taken in lord (luhart (d)
where a statute is made to ease the soverei^
of latmur, not to deprive him of power. In
the tirsi case the king may dispense, not in the
other.
And T think no man c^n doubt but the sta*
tiite, 25 Car. 2, cap. 2t which only requires af-
tic^ers to take the oaths, and lest, to dtfitiug-uish
them from PapiMs. but disables them that do
uol taJ&e them within three months, vesta 1
1905]
8 JAMES U.
Trial of Sir Edward Hdetf,
[KM
* esnCemngy or confirminsr ip<0 yacid an iniie-
* reotrtgbt anil interest of liberty, and freedom
* \n the aabjects of this realm, as their birth-
*rij;bt, and inheritances deacenduMe to their
« heira and posterity.' A ireedoin I nwy add,
ftom Popish slaTcry and tyranny ; Statutasin-
oorporate into the body of the common law,
orer which, with reverence be it spoken, there
is no trast in the king's sovereicfn power or pre-
rogative royal, to enable him to dispense with
them, or take frotn his subjects that birth-rifi^ht
or inheritance which they have in their liber-
ties, by virtue of the common law, and of these
statutes , T may say, this statute.
And such a statute it is, that no man that
wishes well to tlie orotestunt interest, not only
here, but through Christendom, would consent
to the abrogating or impairing the force of it ;
without obtaining such laws for restoring the
ancient constitution, both for the choice of she-
riffs and counsellors, among other thincfs, as
might more effectually keep out the Booted
net only by actual cessioii froin tbef|Ofera-
ment, but hy acts amounting to an abdicatisa,
and shewing a fixed intentiOB no longer to
treat his people as subjects. Nor pwhaps
could there be greater evidence of sacli ioten-
I tion, than the dispensing at » lump, oat barely
I by retail to fuirtirnlar person*, with th«ise laws
I which were made by the united wisdom of tlie
nation to secure it. as much as they thoo^
! human means couM, or at least the oouit
would yield to against those real dan^en
which were in their immediate prospect. Nor
in all probability had this endosare been laid
waste, if the dispensing judges had not midt
the first gap.
As to sir Edward's supposed clear conoo-
sions of this jiower from all the commons d
England, 1 H. 5, Ace. ante p. 1960, Iheyira
quite otherwise than he represents them, b«
would be conclusive to his (loint however.
In th(* first* says sir Edward, * the con-
moiis pray, that the statutes for voidinfr d
Apostles ; than any other means, next to the i ' aliens out of the kingdom m^y be kept aod
glorious axpeilition of his highnesis the prince | ' executed : to which the king agrees, saving
o^' Orange ; whose miraculous success are not • * his prerogative, that he may dispense with
only the subject of present admiration, but hHve
been plainly foretold in (last ages, and will be
celebrated in all future.
But to return from this short dii^resmon : it
is manifestthat serjeant Glanvil speaks as well
* whom li«- pSeases ; and upon tdis the commooi
' answered, that their intent was no other.'
But the recorder says, tauvanl a hty js fre*
rogatwe, < saving to liiin his prerogatite.'
Vvliatever that was, they declared they netcr
of such laws as are positive, as those that are | intened to injure it. Then it goes on with tbe
declarative ; such as confer an inherent right
as that confirm it ; and of statute, as well as
common law, not to be dispensed with : so that
he is manifestly on our side, and seems not in
the least to have exceeded the lord Coke,
where he makes so express an exc(*ption of
our case, from that dispeusini; power wiiicli he
allows. By inherent, the serjeant can mean
no more, considering the import of confer,
than actually vested, and inherent, and inse-
parable by any less power than that from
which it was derived. Tlius in relation to
those prerogatives that have been counted in-
herent, and inseparable in relation to penalties,
and the like (e) the true meaning can be only,
that while they continue, they are not to be
8e|>arated and transferre<t over to another. Yet
no thinking man will doubt the |K)u'er of a
partiauieiit, in relation even to tlicnk ; and if
they cannot be receded from in partirular, at
least they may in gmss; Mhru a king does
cedtre imperio, or abdicate ri*:num, which
inOFt prtTogativo casuisis (f) own may be,
(e) Vid. I^nl Coke's Cap. ot Penal Sta-
tutes, 7 ifep. f. 36.
(f) Vid. Grot, de .Jure Belli .^ Paris. Vid.
Foikner's Christian Lcyaltv, p. 514, 515,
speaking of the i^urisian m:is«Kiere, ice. iUu
if ever any such strange ciise us is proptJw»d
should really happen in tiie \t«m-Ii1, 1 roiit'-ss
it would have its great ditii<'nllies. tirotius
thinks, that in this utmost e.Mrcmity, the use
uf su<^h defence, as a last retun^e utUmo necex-
tiiatis firasidio, is not to he ooudcinmed, |iro-
Tided tb« car« ot th9 coiaiuon good be pre-
copulatiYe * and,' whichndfls new matter, snd if
dishonestly lefl out by sir Ed«ard, et quA
purra dUpemer avtsque cevx- queux tt/y pferrt,
* And that he may dispense with whom bt
'pleases.' Which is an additional grant or
licence to that king ; hut that this sa? iog if
but a general saving of the prerogative, a|ifiean
by the very next record, which he cites ot tbs
same (mrliament.
Sir Eilward's words are, * In the same par-
liament, when the commons pray, that tiie
* statutes of provi.>iors, statutes of the same
' nature with this in our case (Jor they were
' made against the court of Home's encroai-b-
' in>j^ jurisdiction in En«^land), 1 say, wheuihey
< make the like prayer, thai these nisy lie put
' in cxecuCton ; bcinir admouisiie<l by the kitijl't
* answer in the former case, they thems-lTC*
* insert in ihi-ir very prayer, a saving for \h\i
* prerogative of the king's, and then the kinif
* afirreea to it.' Where he wouhl insinutir,
that this preroirati\e of <lisf>ensing with p»r-
tirular pei-sons is there saveil, when the renrrd
is I'XprtM to the contrary : the \iords in hug*
liKli are,
servrd. And if liiis be true, it nin'^t !)<» u\tfti
tiiis gmnnd, that su>'h attempts ot ruining' do
ipSi/iacto include a diM'.lniuiMti'' th*» -nvenu •:?
those prr-ioris as suliici Is, and r.tn^e.ji.eutly «•!*
In HivT tli«'ir prinre or kit-if. Vid. l»'-l.op IW-
son, of t:iii..->lian Kid»icctiru, <-d. I.VSr), p. 2t!»).
I n'-vpr «!cnird, that llic |f«'^jdo mi;; lit preserve
llu! fonndnt'on, Irmloii), a'ul f^iriu cf tb^nr
coinmonue;itth, wliicn ibey foreprixed nb^
they first consented to have & kiO|f.
flfST]
Jbr neglteting to tale the Oaths,
A. D. ICM.
[1298
1 * Also the Commciiis pr»v, for the ifood ontl
' lirudt of the realm, that all ihr fstalutrs
I * miMie mi^inst provisom, in the IJiiH ai of
I • the roiMit nolOe kif»sr, K *?, B. «. Tl. 4. (jirj
II * your fothf^r, wlKini Cj<hI be merciful to,
II * may ^lAtiit in their force, antt inny he held
I * aoii executed in all |j<>int8 ; anrJ thai uo
^ * prnteiHtmi, nur other gratXi to any (K'nion,
j • by our Ion! the king", workifiir to thecootmry,
* in furbesiraQC^ of the execution of the suid
* tUtutes, be allocable or avaibble lo nriy per-
* loii H'tiaii^evi'r ii» thiti ntntrer. And if ony
* thing' l>e done tii the coi.lr«iy, let it he held
* for miH or void ; stiving all time^i the prero*
* gaUve of ibe king-/
. The km^ answevSi * Let the tialutes thereof
kMiie, he held and kept.* Which is pbinly
HBuit nccordin^'^ to their prayer, witliout the
HKgf's imped iu^ the execution of I hem by any
Iprolection, ttr other ^raut to Hny person what-
I locver \ and if t^uch tyrant be^ that it shall be
j Toid. Is not thi« as much to say, (\'ifL Ace.
I ante, p. 1^56) That noN on Ob^t^nte »hall make
1 any such grant (;i»od P Ob, hot lir Edward
will tell 119, Thatthis shews that the parliament
tfaouifht the kinjcf could otherwise have dis-
pensed with those arts. Hy no menns : it only
ar^ftiea an abuse crept in (whiiTh Matthew Pan«
•hews lo have l»eeii a.^ ^<irly aii the time of H.
S.) and likely to be allowed of by the judm ;
bnt the parliament would prevent even that ;
and !>urely they would never prtivide, that a
Non f HiHtanle or g^tLot to a partictdar person
iJiaU be void, if they thought the kintf hail n
pnrog'ative to defeat this \vhen he plca^^ed :
■Uich lens, when they expreiisly pray ai^^nmst
Mefa an abuse, c^n they he thou^^ht tu cootra-
dld ibouiMelvea, and in the same breath that
^iliey desire that no person whatever may be
du|ieiiied with, yet leave the kin*>- a prerojra-
tif e to dispense with whom he pleiLse^. The
thaurdity of which reasoning he mtxht haf e
•een in that excellent speech of M^rjeunt Gliiu-
yi), (k) which he himself receiver as the
aeoae ol the Comtoooi of England « assembled
in parliaments
Wherefore the saving in both the records,
can be hut genrral saviugrs of sticb prero-
gative as the king^ had, wlrntexT it were ;
which the kin^, as they bt-^fuu to turrtiiir-h
Upon the peotile or to be jetilous of their
tfieroacbmeots, would have inserted out of
'cbfliiidaDt caution, before they uould ^iehl to
ief^ral actii. And these beiuf^ acta oi pfirlia-
aent, which could pass but a$ the kin|i<' cum-
tented, the people were forcad o^tentoo'ild the
|>i!U with such nivityH; but it wa« otherwise
9fjij. Ill parliaments to which no con-
%^\\\ f was reooLsile.
t'artli ■ '^Jt the kinif had a prerofra.
live of dr ith particuliir pei->.(irt>4, U\]\\
as tti alii iiH utio prufiaiona^ yet thera conld no
fl^ineral rule be taken fmn thoiGe, beeayse it
(g) Hot, Pari I H. A. n. 22,
(h) Vid. ad^^uit CJlftorira speacb, aotc, p«
VOL. XL
would only ariruc, that the fondoeti* forahtnAp
ami fear oVili^jpleasin^ the court of llome, had
at tifHt r»r<'asione«l the resert ing^ the power of
eastui^ some particular personal without wlmh
the king^ would pass no act ugsiust them.
However it wn!t, the iVeipient corn plaints of the
CoammoK, (ij and acts made against both the
one and tlie other, shews that those laws were
little re<|ardedorexeeulcil. and yet that t he kin^
had not a prerogative allowed him any more
fur ttartieular perstms, than tor all in ^<^oeraL
S^ir Edward has tive other trivial inKUinceji of
the dispensings power, whieh, huivever, 1 shall
nut omit. One i^ the dispensing- with the sta-
tute, 8 R. 1. c. ^. Account, p, n:>8, which re-
quires that no man should t^o judgfe of assize
into his own country : hot for this there is only
practice, which has passed sub iilentio^ and ao
could l>€ of no authority iti law. Befiide^ the
statute is barely proliiHituiy, and does not render
the patents void if otherwise; yet 1 cannot any
but nn information wouM lie, though there wen
a Non Obstante in the case.
The aecoiid iaof dispensing with the atatttte
10 Edw, ^J.cap. n. Ace. ante, p. 1268, which
prorides, That whoever has a pardon of felony,
shall tiud sureties for the ^ood behaviour ; of
which he sa\«, as of the other, that it has been
constantly dispensed with ever since it waa
made. Dut if the practice had been so» which
he does not prove, it would not avail, unless it
had come in (|tie6tion juihcially, whether the
pardon would be valid to one who had not
pven, or at least tenden^d sureties. Indeed
there is a case in our books, where the court
did not require sureties, because of a particular
clause iu the pardon dis|»en^ing^ with it: but
this was no earlier than 16 Car. 1. (h) lb**
judp-ea of whieh lime paid sufficient deference
to preroqrative ; but that case seems to be not
only primtF imprfmonh and without any reason
ffiven^ hut in effect condemned by the reporter,
as he shewi that the court abused their disere*
tjon» ii they had any, in the tnailer: li wastba
case of sir Matthew' 1^1 in ts, who appeared to ha
Ifuilty of several misdemeanors, tor which ha
de&er^ed tube bound to the ijood beha*iourp
committed after the time to which he *ias par-
don f»d.
The thini and fourth ins(anc4*s, scattered
froiu [U*" rest, are of dispeiistug' with pluralitie*^
and btiiiards entering in priests orders ; m Inch
if poasible will be less tervioeable to him ;
For,
1. Such diiipensationa are never cfrao ted by
the killer (l)^ but by tiie archbishop"; and the
kitij^ only licenses, or confirms, the arcbbU
abop*9 iliipensation in unusnal caaea.
S. Tiiat the kia^'a licence or conftrnkation
in Cases anwont, as the statute has it, ii of anjr
(t) Vid. Dr. Stillingfleei against Creasy,
f>om p, 4*^6, M 451,
(k) Sir Maitheur Mini'a Caac, Crooks.
Car, foL 5t>f .
(I) Vid. Vatiirlttn^f Rep, f. m Bdcf y.
Erefq; d'Oxford.
4 0
f JAMES I!.
lo the maiute, 15 Hcd.
Trial of Sir Edaard Hales,
[ISOO
] Bin as to these three bit imtftDeM, it nigfat
j be mM tanher, tlut if they were stronger tlin
{ Uiey prute, vei ibey Dii;^t fall under the dif-
I fcrence received by hiin from lord Vaughto,
i where he says, the kiofif may dispense with
> la-.rs rn&ue *• pro bono publico complicati,' but
I O'.t HiLh suili as were made *. pn> bono sin-
i * ^Ltruui populi ;' in wbich the iord Van^hu*
i i> Dot so absurd, as to oiean, that thouifh Ae
If rv:e, is owing
cap. 22.
.J. Xlten in usaaJ ca^cs, nbere the arrh-
bobop nuifht riupease. though lutkiL^'* cca-
firmatioD be a<!Je<], }c-t iinlr^s it come in due
time, it niil :i'A prevt-iu a la^!.>e incurred up^'O
thfc statute 21 H<-u. 8. cap. 1^. a^^inst piuraJi-
ticfi ; .as wkB a<1juH^'f il in Di^bv's c^s^. '';,)
thoujrh the dis|»eDSa:i lU carne belbre iniiut-iixc.
And this comes up iully in oue of the prrtnis • kir.^ cannot ilispeiise with a law io whic^ any
in sir E'l^ac] Hale's casi*, Mhich our ch;ef I lu^iiio particular is so far interested, as to be
juwi'-e has net betfu 90 fair as in thcl^a^tto ' eiit^cioi tti sn action fur himself alone, yet be
mention to be a p'Jint iu tt.e case : Na\, ojlte iuav vwilj tin se ia which all the subjects aie
cunti ury, he su>i poses it to U: a ca^if / where j iutcivsted.' but bis meaning, to make Imd
a rlisabliity is annexed as a p-ii !:;.. atid j CNiisi>tei:t niih hirr.self, must be r<;iktrainfd lo
tliat peiuifty is not to be incurred before lord CiiU«.'s seDaeu;/jn the jieiinl statute, which
IfST'il coui ictir.ti, and where the Lion's maki-s this pu»er lo be only where the kii;,
di.s[ir:::saiion makes the thin:; dispen<«d Mii;i
laui'u], and consequently prevents an\ ci^'nic-
ticn or penalty at aii ; forgetting that iu tJie
f cry state of the case, ht? owns there u;us :i
cr-aviition bfiore the dispeiuation came. So
tii-it \it\\i was a fli^hility bcttiai-y irj iirrefl.
k'.«l that upon record, as appears ui ihc |ii(ii>-l-
iii'/^; t\Mt wiiiie that re^.'ord remains, thi-re is
rio iatsifvin;; uf it. thou'^'h in lact th? convic-
tion wi>rV' before the three inoniiis given in the
sralu^< to p^-event a disability ; Cu) and he had
l«o other means, than either to plead no such
rfcoid, «»r to hringf hi» writ of error. Where-
fore this (lispensation comes clearly within
Difrhy-s case, as bein*; too Ute, siipposiug
Otherwise it were%alid.
As ftir Edward shews that he has read Thomas
anil Sorrel rs case, be might have known ano-
tlier reason of these two cases, viz. (o) " That
the kin{2^ may dispenso with a basldid ti» take
holy ordere, or with a cU-rk to have two bene-
fices with cure, which were m\lu pro.nhUa
by the cauon law, atid by ih..* c'.)Uticit of La-
terau, not hv act orpurliiimeiit;" which is must
true. For thi-sc are mentioned in the book of
Hen. 7, hel'ore aitv ael made a:^uinst pluralities^.
There is anoihr-r iustaiicc in tliat wilil an-
nnialioii, Ujidii tlie caao of cuiloms in the 12
Ho\}. while it ig sJ.id, '•* S"e(Acc. p. I'JjO; 4
Ui-n. 4, ea-\ oK in v.hicli i; is oidaii;ed, that
CO V.'elbliii.ua bo j-v vi. o, iscc, in miypaitof
\i''.i!^*s, :v'it.v";::i:.i..ni!:-.;i4':i:iy •,u'f:iuto the con-
tr?i V, \v:i!» clause oi' ' N- in Ousunco licet ^it
' \V.il;ieiis :' Aid v<t ^vitjieul (jjiitslion the
kin:; niLiy j;'»a:;t v,ii:i a rs^ii OliiLaiite."
Nok- di) [(jiK'hli.mit neitiier, tvtn before 21
J'M\ l,L"A[i.b^, uliLiilliat statute was repealed,
pr. V idv'd ti'e VkeLsliiiieii use not Welsh syjech ;
Oil'! ihi;; hy -7 U. 3, eup. 26.
(.1) [liji). r. 7}', h.
(n) v . I."U >il> A.^r. Dro;>];. Titz. til. Estop-
pi.!, parliiul.-.r! . SuiUi:.pi. * Si homeseit obiiLiO
* lie i arijer le i\iee el puis beire I'aoi.ts isyjst
' \«rsiui tli.» re:- qnil bat. one <pie viel et est
* j-.i ve eoiij). et piii-; ret port, brief de trans.
* vtiN Iny lie iiUMne le hatie et ill. }»led, oe rien
* eni:;>. ill luy eHSi|»|)fia per matter trove la
* suite le Koy*, -Stc.' »So Urook, u. CO.
(oj VaiitjJiWj, f. 358,
- kii;,
us head o( the common weii It li, istruslcilbv
ail ttie rt.ihn ; (p) in which sense he akmeii
to louk alter the iuteiCst of the popuiut compih
c<i/u<underbimashcad. ThuK lord Vaughu,
1. expresaly quahties it, ivhon he savt,
*^ They are ' pro bono populi complicati,*
as the kin^r in his discretion »haU thiok At
to oriler them tor the g«Mitl of the whole."
2. He illustrates it by the example of a Pattr-
laiHttias ; (g) ^^ VVhn^e estate, he tells oi,
may lie said to be * pro bono commuoi* of bii
family, which yet is but at his discretion ai^
manaffement oj it, ami they have no intervii
i:i it. but ha\e benefit by it.*' 3. Doih heasd
sir Kdward Uerbert allow instances, wbcrt
every particular man is not entitled H
his actum, and yet the stututrs are oAsad
to lie ' pro bono sini^ulorum populi,' in4
not to be disfiensed with ; and surh m
Magna C'bartii, and those otl:er laws meu-
tioued by serjeaiit Glanvii and sir £duar4.
And if some difference can be found betntei
the iutoi-est siu^ulorum p.r^mli in all ih«e
siatutes, and in ours, lo um.* his words, J wish
any nian would shew mc any such diiferviKv;
o.'vise we must say, that not only tlie former
resolutions, hut lord Vau^-ha!! here, as uellss
uhcre i before obsejvcd, is lull a:^^ainst hiut;
niiv, he is even aq^ainst himself: which I
vr.iuldbe loth to think that lor. I A auo^han is, (r)
who o\vu.s. That the kinSf canuot dispense io
any case but with his ov,n ritriit, auil not iritb
the ri.'v'^t of any other ; which he confines ool
to indit-iihial persons corsiileyed f>in!rlv ; for
he says expresiiy, (i^) ** If the wis-.lorn'of tbe
parliament hath uiadc an at t tn n strr.in, * pro
' bono j>ubiico,' the imp«rla;irn of toretc*
manufacturers, that the siihicot.s of the reaua
m:iy a|ip^y themselves to the niukiuar of lh«
said inanuiiictures ibr their support and liveli'
hood, to orraut to one or nvjrc the im|)ortati(in
oK such maniifncturo, without any liinitatioo.
Non Obstante the said act, is a monopoly, and
void.'' For this I am sure, particular persnaf
arc not entitled to actions upon their own ic-
(p) Vid. 7 Rep. p. a6.
Cq) Vaugh. p. 348.
(r) Thonuis t. bone), f. 350.
(s) lb. t; 317.
notty a^tMt rpKeiov, but tftintt a po-
•nttitation, tbougb WuKle ibr the interait
igion ; be migbt not only have learned
brd C!oke, tbat the subjects bave sncb an
It 80 tbe kin? cannot dinivense witli,
at is made void or tortious, tbat is, un-
iv ibr the gfood of tbe cbureb ; but lord
ituk shews, (n) that ttiere are maia poli-
Hto be dispensed with, and instances in
things,* which are nuisances in tpecie,
Vy besides what already has been shewn,
ible these three last instances ur^d by
Iwird, that they are not * pro bono sid-
ini populi,' as tbat rule is vindicated
nfsappKcations, may appear, in tbat Aei-
€ them affect all the people in general.
ihe elergrymen, they can only do injmy in
wspcctive parishes where they are bene-
mdtbe Welsbroan in that part of Wales
^lie is an officer ; nor besides, can tbe
rmen be supposed macb to prejudice the
It of religion, being the pluraliit cannot
f hk cnre but by one <|iniHfled, snd the
4 might be a good man, and good
Mr. And yet even these wonhl fall
lord Vaugban's acceptation ef his own
(m) for be shews that laws made fbf the
tof but part of tlw kinffddfii, artifictfn
NMbandmen, cannot be dispensed with
' one person, to frustrate the ends of the
9 leads to another Bourish which he
I with tbe lard Vaoglite'i authority; in
r to the objection, that the hiw was made
no jmbiieoy Ace. p. 1809tand it was highly
nryfortbeMbne. fudeedlortfyaogbaif
are it, tbat the sole reason whyastatn^
t be dispensed with« is net, that the law
Mie pro bono jmbiito^ bedrase alt lawa
Mide for ptiblic good ; and yet dtspma-
shenfls, it relates not to all the people in gene -'
ral, but only to freefwlders.
Secondly, Having thus shewn that those'
grounds which our jodg^ pfrettods to Bave^
gone upon, afford no countenance even to his*
palliation of the judgment, they hiU appear
much less to countenance it as it was delivered ;'
which to evince, I shall here set it down ipsit-
timis verbis, from tbat faithful re|K>rtcr Mr.'
Bhiney.
It was en that memoraMe day, when, as'
another mark of bis sinceritr, he directed the'
willing Jury, and concurred in the infamous
sentence against that exdellent author Mr.'
Johnson ; when the jary was gone out, the'
chief justioe took occasion to inveigh against'
spreading of seandaknw reports about cases de*
pending m the court ; and to prevent any thing'
of that nature in tbe case of sir Edward Hales,
he thought fit to deliver the opinion of the'
judges in this manner:
Chief Jutiiee. « In the case of God«i in and*
Hales, wherein the defendant pleads a dis-^
pensation from the king, it is doubted, whe-'
ther or no tbe king hwl such a prerogative f
Truly, upon the argument befbre us, it ap-'
peered as dear a case as ever came before'
this court: but became men fancy I know
not what difficulty, when really there is none,
we were wilKne to' give so ranch countenance
to tbe doeitMHi m the ease, as to take tlie ail-
vice or all ttie judges in England. They
were all assembled at SerieanlVinn, and this
case was pat them, and the great case of the
sherifis waa pAt ; whether the ifispensation in
tliat caae were k«al, because upon that dc--
peoded tlie execution of all the hiw of the na-
tiiMir And, f must tell Ton that there weva
tlienten npm the ptece, that clearir delivered
their epimoas, that the ease of the sh^riflb
1309]
tjAsifisn.
Trial ^ Sir EiMtd Halm,
i\M
* hate tome more time to oontider of H ; but
* he has tinoeaaQtby my brother HoUoway to
* let as know that be doMOODCiir with vt. 'To
* tliete e|eve|» judges, thero is one 4isMnter9
* brother Street, who yet oontinuea hisojpiiiiooy
* that die kiiiff cannot di^ieose in this case.
' Bat that u the opinion of one single jud^
* against the opinion of eteten : we were satis-
* fied in our own jndgments before, and bav-
* ing the concunrence of deren out of tw.elve,
* we think we may rery well declare the opi-
* nion of the court to be, thst the king msy db-
* pense in this case J and the judges go upon
* these grounds :
* 1. That the kings of £ng]ahd are sovereign
* princes.
' 9. Hiat the laws of England are the king^i
•lawsrj;. , ,
' S.TIiiiUberefore, it is an inseparable prero-
* gative in' the kings of Ei^and, to dispense
* with penal laws m particulnr cases, and upon
* particular necessary reasons.
* 4. That of those reasons, and those neces-
* sities, the king himself is sole judge: and
* then, which is consequent upon all,
* 6. That this is not a trust invested in, or
* granted to the kinjT by the people; but the
* ancient remains of tlie sovereign power, and
* prerogative of the kiogs of England, which
* never yet was taken mm them, nor can be.
* And tberefore such* a dispensation being
* pleaded by the defendant in this case, and
' such a dispensation appe^rinf^ upon record to
' come time enough to save- him, rrom-the fbr-
* feiture, judgment ought to be given for the
« defendant, * Quod quarens nil capiat per btl-
« * lam.' '
Jt is evident, that these propositbns are very
wide from anv thing that ne nas, or could have
urffed from the books, unless where a brand of
intamy has been set upon the judges. The
examples of which, made in severalages, one
would have thought, might have civen suffi-
cient caution ; yet inde^, he might have had
enough of this kiod from those of the other
gown, who, I think, are now pretty well
ashamed of these notions. Whatever power of
dispensing the king has, the books suppose it
to be entrusted by the people ; hut according
to this resolution, it came down from heaven
the Lord knows how. And as he goes upon
the supposition of an absolute sovereignty in
the king (a)^ inseparable from his person, as
such will have it, unless that he granted, all
that he builds upon it are but castles in the air :
(m) So Sibthorp, Rushworth, vol. 1, p. 422
(a) Vid. Case of Resistance, u. 200. Hee
there such a soverei^ty as msKes laws, can
repeal and dispense with them. Fortescue, p.
32. * Ad tutelam namque legis subditorum,
* ac eorum corporum et bonorum rex hiijus-
* modi erectus est, ei ad banc potestatera a po-
* pulo effluxam ipse habet quo ei non kcet po-
* tesute a\ik sim populo dominare.' See this
condemned 13 and 14 Car. S, cap. S9. Vid.
Rodiwortb, part 9, Ibl. 006.
IbrthiawearetokKwnMoana to Mr
tatkMi, to see what thai pewir ia tbe pnaee ki
which the grait Fortcaoae aiya,- is, i aipaii
^ derifed from the peopls.^ . Hbtfe
i,lhBm MiyaoaMNk
that we have no
as protended proof of his
fpj be oflered bot fimn iIm rwwitJoo of As
infamous Ship-money Judsrsa, whkli Mensti
run parallel to this, but ia indeed Ihr'alNfftif
it: for though they made the king iIm Mis
judge of the kingdom's neQesaty, yeC tky
aupnosed it to he at a time when then ww a
real danger to be prevented hy the
this judgment; whereas here it is
the bringing in what the pariwimfl
to prevent. .. i
But I must observe, (vide Accomit, p. ItMi)
1. That whereas su- Edward fierheit own lbs
dispensii^ power to be of dark Iraraing, oA
that <itis very fit it should receive aooM Ml>.
*irom a delerminatkm in pariianient» Ml
.* judjfes may judge, by mote certaia ndou:
* which acts of pttliament the king m^, iw
* whksh he may not dispense wth.' GtaHtlii
premiasea, and there can be no 'dnclmeHinilf*
for the power will extend to all oaaea. aa tea
the Imslative does ; and thai he' I
mined poeitiveiy in this point, when
aU things, not forind by God's tew, la tor
dispensibleby the king. Nay, if he micll
dispense with every jmiImsi prokikiimmt Mr
is not sialam in le^'withoiit such
tion as I have shewn ought to be, it
vforther, even aa iar as Gtod'a power (k)^ wfi»«
never dispenses with more than hia own pmi*i
tivcr4aws, not such as are founded upon i
reasons : and thus the positive laws of Gad
and man would he sul^t to the pleasure if
the prince. 2. lie has taken it out of tbt
power of the parliament to settle the bonads of
this extravagant power: for, what he ascrites,
he says, never was taken from the crown, mr
can be ; because, forsooth, it is the ancient !»>
mains of the sovereign power and prerogatiN
of the kings of En^and. Wherein by lbs
way, there is an implication contrary to whit
he would infer ; lor this implies, that it is bat;
the remains of a power diininiahed and isi-
paired. S. His printed and parol reaola-.
tions are not only very different, as ii
obvious by the comparison, but very eootm->
ry: One says, it is a dark learning; ths-
other,the case is as clear as ever came bsfcrs
the court.
Thirdly, Though his insincerity is sufict-
ently evident frOm every part of his delcnee^
yet it may not be unprofitable tor the pubis,
that he should be followed to those
in which he glories; for which, it
enough for him to shew some one act i
he is singular, if he follows the miUtitode Is
is nsl
(b) Vid. Grot, de Jure Belii et Fusis, 1 1»-
c. 1. * Sicnt ut bis duo non sini qoatoor, nea
* Deo qnidem eflici potest; ilaaei
I nt qnod intrinnoA ratioiia i
fir nfvUciing to take the Oath,
ofUie
A.D. IC86.
[1306
eD of Uie stmekind ; which if ex|jre9stv and unAi)swer«bly for ihAt injured
. .^^^ _^_„i. Li„^„i**.. !'.._- j,^j.^j^ j^^^ wbom lUe age was not worth)') the
I hioiielt*
brf>4ich of trukt. Account, than the
* laiiitetl iicnl.
liters of bUiodf Account, he •flfecU
aUOH of great tendcmesK, a^nd thinks
I bi*en scrupulous even to a fHuit.
lys ike, ^ in knfoe cftxest upoo statutes,
I heeu Jidjud|«(^ed felony hy wiser and
tidies ihun myself, nnd it' was highly
ic kint^'s service that it should be so, yel
lid tiever give jndijriicut of death, be-
t could not iatisfy my conscience, that
>tute)f were now lo force.' ft is a
Df, not to give judgment a^^ainst
ce, wlien the narrow inleresl of
exacts it, and other judges, inUu-
from thence, would eount«Dutjce it : but
f observe^ that those statutes coticerniog
ifc}» of which he is to he understooij,
y ^ve no warrant for such judgment, as
m% to the meaneHt capacity 9 but if they
idmit of auy (question, the unbiassed
snlof the then recorder of liondon, sir
ItAU ought to outwei|^ the whole bench.
I wisih our chief justice could as well
himsstelf in the case of lord Brandon.
itber's heroic meriu of the crown, loo
D be rewarded ; and thesou^s hereditary
lord Kusvel.
Nor wtts the proof in lord Brandon's cas» •
less defective than the iimtter; for besutes th«
scandalous Sexton, who Kwore to desigiii
against another kmi^, there vvas but one i^itju-si
in the eye of the law: he Indeed js so far
le^l, as that he might be hentd, beiiitr an ap*
prover Q) ,- but n» way crethble, cuimidenug
how far he had been drawn with Ins leiiers
aimiit hi» heels, even to (^j contradict liiuiseif.
The other by no means lejfnl* beru^ umler ait
outlawry for Hiifh-'IVasun, unre*erse<l : Koe
though the execution of that judgment (tor so
in law it is) was pardoned by tlie ku»gi yet thd
crime was by no means pur^fid, to s^ei him
rig-ht as to fame ; which ihoni^h the touu^el
ortered to make good, they were not suHered ta
speak to it: and jet the point is vtfy (h)
clear by ancient aulhontie»i, and coittimie4
by later, without any lhint( really lo the cou-
trary. Nay, iartheri though besides all
these things, another matter was urged ia
arrest of judgment, upon %ihich juilguieut
had (ij fornnerly been arrested ; yet, without
enquiring whether the fact were true, or the
book law, that, with the rest, was over -ruled,
to come lit the life of a person obnoxious lo the
dangerous to those who had reason to government, an some culleil themselves, hucb
ive sfiir its, occasioned the rigorous pro- ' "
Kof both. The father was obliged to
Kis soil, till it might become more
ftol unmindful of our Saviour's advice,
ler precept, * When persecuted in one
ry to tlee into another ;* that though he
med death, he might not pnivoke it,
m falling into their hunds, both his life
Bour, which the severest trinls approved
lost viiloed by him, were designed for a
#. Jn suhi^rvieocy to which, our chief
directed the wiUing jury to find him
Ikf high treason, chieHy upon a supposed
ttey i» seize the castle of (JlKMer;
if true, were but telony by a statute (d)
lat part, yet in foree, and so could be no
'c of treason, Nor would he stitfer the
he found specially, though he pretendetl
answer the c«ses and record*, winch
itod to shew, that the matter alleil^^fd
lOl be tn^ason : nor did the then ttaUcitor
tke the task, notu iihstanding that shew
Ding, with which he laboured to set
Iftuihority of lord Coke(e^, pleading
becajfc Crook. Car, 15, ami llutton
tone presl I0 !»crve lM»yond sea.
"d. 14 Ehz. c, J, ItiMal, f 4ll.
Husscrs Trial, vol. 6, p. 5f B, * To
I levy war i^ an overt- act to icKtily
^n of the death of the king ; and the
y bird C^'oke has pobJbibty misled my
fhis he gocx to rdule by the case* of
1 Cobham, which were not ot le-
]thin the kmj<fdom, and bf^ideit
by the overt* act of tv ruing.
If. Hiles's Flcaj of the Crown,
was sir EdwanPs greut si^rupuloosnetis and
tenderness where the lite ot man was con-
cerned.
He adds a scruple in a rase before himself^ '
and tbe other usurpers of the high-cuiiimis*^
sioU'Court ; but his Kingularily ibeiein c^in be
no excuse tor Ins acting at all upon a coiuniis>
sion apparently againsil the statute ; winch
took awuy not only the power of hiiuig and im^
prisoning, which that rourt iliegall^ preteiuletl
tu, bui the :bpiritual auibority which ii leally
had: and such a commission it was, as never
received coiintenauce. tdl the act f Aj long since
repealett ; which not only moile H. B, head of
the church} but gave him power, w hich he af*
tcrwards delegated lo brd Cromwell, (V, 31 H. *
p. 13. Dyer, f. ^98, b. Saunderson'i Uift.
of K. James, f. 283.
(J) Lib, Assiz. 37 ph 20. Of an approver
shared, says, II ne tluif^i pti^er sans-e^tre dufs-
ment piii^e, car tout sout eu male.
(g) At lord Russer»» 'lnal« i urn not certain
whether I dtd hear something ulnjut a decla-
I'ation, ^c» A I Mr. CorniHh's, t contra,
(h) That such are noi pntttei kga/n, for
witnesaes or juries, vid. 3 BukL f 144, alias
JM* 1 Brownlowr, p, 34^ part 2, 4 7, RoU*»
Ab. til. CIimI, 057. Brook til* Tei*moins, pen*
ult. Fiizher. tit. Process, \>08. Dyer, i\ 34. a
Uwcu. I\ fii. Cai^tlemHinVTriali i.H, 11 H. 4.
41, b fjodboU 238, Forte«cue, p. 60. b, Fleta,
hb, 4. c, 8, Bractoti de Corona, cap. 3. p. 11».
k Roirs Ah. tit. Prer. f 222. Vid. de eod^m
Baluziiim, torn. 1, i\ 8B7, %. 36^.
(i) Arundel's Case, 6 iUp. f. 14.
(k) 26 H. 8, c. 1, repealed I and 2 P. et BL
.■<7*!i^-f t
[MM
tuHii^laiifiiteffft aH Cftit i|h
ortbati
•bfMOlier liitai tnm,
bw* {irevMiod, laf
firM0 ■
te fit* Jadgnmi to fn
rr te»^ «l m Me wbtm the J
^ tlim Mm flupentitiMi to 1
al^ 1^ Ickif s« jiMcb abfuvsllKlMrii
by mw^ (ft* emitiMioe» tfaHii^ llMgnil
il, ^fm^mmtrtt, aare aboYV kmm (i),
% At tb» prDTes U»« interest ef the edjt* '
tsi ikm law almtit sbeniliH to be f ithflrefiib
dor so inimtdiatt^ as in onr etatvle, there Miif
am mnxiy m nnk U9 siliew the HBaumte ti ikm
extent r ihtr y^dce nuty ef perticfiler tiee«H%
aod thtl bv ktn&l} i n»t:ttgilMe doyr6M> ie Ihiy.
cancfTiicd/ NttVi adttiH the lung nd tlii
power, smd ^bmild sa vielile •that tmivlMi
Kir EiKiv^ m\\ hmvti to -be lepoeed ie hii^
m lo ejrttfml it t4> a4l oeiintie% wfatR^lii
l>iitt if» till* mIiv^iIFs, yH tbieeenki oot i "
all thw peo|4«' ; txac»(t*ie
m'-A(t«ie there BHoht tee
Mi<t<lle9ez» eodWatMmfr
fftiiH ; itt itnihrr ut' v» li ic b has it beep ei uUeifd
thai the hhi^ \m\ mvU e power, titf the fale
viok-iicc (if Aiiim% £iri4 tireoheryof elfaei«,fMe
thm imhappy inla c^i p<'ijory» meatleti^ftatcf,!
inav say muitlcr sind oppr^sMoo ^ before wiMb,
Lmitt'ini waa a pcH'evl Uashcn id aD-£gyp0M
kingdom,
S. But what «mu cxe 096 our chief juttice*!
6i* apjiAivut takMlyiii£? both records awl Uv
iHiiiks F Of if Di>t , at le(»!4t, bis shameful ocglt*
g;t'nee in nnt \^inn*^ la ibe I6untain-h«edf, but
i^ettmg^ up the rt;cititb (}f cases against the cncf
themaelv^ I ari4i the ^uttrajudicial opioioiu or
ur^'iimeots ctt jtii%e», nay tlie very annotatiout
of rt^^ortrrNi Ibrrij^i] lu any matter io questioo,
ngAiuT^i sulemii re!i«ilutioD8; wlitch either wil*
fy| luli(tticaui>itif, nr ci iiiiioal negligieace bai
ficcjkiiloiK^il the atisweriog objctrtioos with a
rum whtch never had a resolution, but wlwt
hf ttrid hi^ biiEi'thren g^t l-, when it was brvn^it
ill by hi aii und liboiilders, ooly to be a kaUiog
CSkli^ t4l thifi.
4. lie voM not but know, that the case was
Ikintiy argued against sir Edward Hakt;
cithei' be or th^' kte £mp8on and Dudiev,
hu.vin^ ^if eu the iheA ui\ both sides: wberetiMt:
it wn^ irornic^l for tht.' ciiief-justice to say * ibit
^ tlii€' case app«iirefl cli air u|Nm the arj^oiueot*
(f) JiractoQ, L 3, c 16. Rez babet Sii|ie-
rsoretu. Den in 8w iti?m legem per quam Ihoas-
P9t liex, item Curtmu suam, vis. Coiuittf,*
B a rones, qui €omit«t dlouelur quan eedi, die*
Fieui, L 1, c. ir, |i. ir« 2, hseilipcrisim
Wbidi aryiijs ihe eaiil io the Rogrel Apei. cd»
Amio imit ^ :^, itipjiodid Io he Or. Mom^
are not derived from known grurts oT
•le. And he mtgirt haire learnt from
It man, whom he would fain draw to
* That precedents are useful to decide
ns ; bttt in such cases as these, which
u|><>n fundamental principles, from
detiKHistrations may he ilrawn, rail-
rpreceflents are to no ^nT\^fise.*(n)
m \e^\ memory is well known to ex-
tlie reign of if. 1. (o) And thon^h
itantes, as I observed (ii^fore, are com-
>f withiu that time, as early as 35 H.
fiat dili;;cnt and faithfxil searcher into
r, Air. Prynne, shews, That they were
rie use of, only to revoke some indis-
uHs or privileges, but not to elude, sub-
dispense, with any penal laws, or acts
mest, till they were introduced by re-
lorsons, aAer the statute of Mortmain,
to elude and frustrate the act. And if
true, I am sure thus far there is no
3r the late resolution ; for they mij^ht
m in lord Vaughan f. 856, that the kmg
mne. flispenses only with his own right,
eludes not the mean lords.
^ successive resolutions of judges are
lenres of the law, and snch as ai^ to be
td and rectified bv the constitution and
mtal maxims of the inherent rk^hts and
of a free-born people; yet irih* Ed-
d had the -diligence to read what might
eurred on this tabject, or the honesty
it fW)m others, Im imgUt have known,
riar from being a seltted point, that the
gbt dispense with particBiar persons, as
wer IS not prohibited by the law of Ctod ;
t his dispensation makes the thing pro-
taMvfiil to be done by him thnt has H-Cp)
Ptowden of Minet, f.'mi. 10.
ovtdf parliament, fiNT tbeirnireCy^
m raiiicmnn and otmfiraiation a par^
lianent
But the wtxata qumitio fr) was abou^ KoeuH
in^ the shipping of wool fdsewhere than at Oa-
lais : that thne king might do this,fthe pretenet
was specious. Calaw was no part of the an-
tient demesne of the crown, but a new acqui-
sition, whose interests the king seemed to bare
miore absolutely at his disposal ; according to
the resolution of onr judges, anno 1667, bnorp
the House of Lords, who declared, That tfaongh
the Canaries were the dominion of the king of
Spain,f'f^ they were no part of the dominion
of Spain. And if sir Edward had taken notien
of lord Coke, where he is against, as wdl as
where he* seems to frvonr him, he ong^t td
have obsenred, S Inst. f. 186, that one Lyons, s
merchant, and lord Latimer, were sentenced ia
parltatnent, for procuring of licenses and dia-
|iensations for transporting of wool. And ^f$
they laid to the destmction of the staple, and
of the money of Calaia, to the great damage of
the king and realm.^^^ Indeed the year afler
the lord Latimer's sentence is remitted at At
request of the Ckimmons, alledgtng that ths
charge agiunst him was not tnie, not fhr defet^'
sf matter *, 51 E. 8, n. f5. 8o %hat here is s
jud^ent of the Hoose of Lords in piHnt,
agUBft nne of tliooe very cases t upon wtdeli
t JtH^es bare since founded their diatine-
(ion or' malum prohibitiim/ and • m&lnm is
* se :' And it is an easy thing to know which
onffht to torn the aeale.
Afler thWy 9TR.6, f. 4, it.(sms to be m ffOM*
lion befisTs all the judges in the Bacheqnsr-
Chamber, Whether this oifence, being par*
doned, (winch that the king might do after it
was coBsmiltad, has not been disputed) the par-
don, before an iufhrpaaition brought, wonUfde-
1311 J 2 JAMES II.
ikH\?(v) However, this received nodetermi-
oation at that time.
But if the question had then been of a dis-
pensation, and whether that would bar the in-
former's action i^fiven by statute, can anv man
doubt but that they would hare adjudjt^ed it
could not ; when, notwithstanding^ a pardon,
mnd that in case where an action was not ex-
pressly friren ? Yet it was so doubtful, that
they would not determine against the informer.
But that the dispensation would not have
availed with them ; or at least they would not
have looked upon it to authorise what was pro-
hibited by any statute, appears from other
passages there : as where it is said, (x) that in
9, recognizance of the peace, (which is not con-
fined to one entered into at the request of a
subject) the king cannot pardon or release, till
the peace is broken. Ana where a man ought
to repair a bridge, the king can pardon only
for the fine due to himself: but nowever the
party shall be obliged to repair the bridge, be-
cause this is to the damage of all the people.
And to the same pur)K>se is that 3 H. 7. (y)
that though the king may pardon, or free from
a pecuniary mulct before the occasion happen,
yet he cannot pardon or discharge the trespass
Itself: an instance is given in voluntary
escapes. So far were they from believing that
the lung, in remitting the pecuniary mulct,
could make the thing lawful : nor could this in
the least be inferred from the other, because,
however, an act may be made void or tortious.
Indeed in the reign of R. 3. (2 H. 3. fol. 12.)
whose character blemishes the judgments of
his time ; it was held by all the judges in the
Exchequer Chamber, that the king might
license the shipping of wool elsewhere than at
the staple; yet even they were not of opinion
that the licence made the thing lawful, for then
Trial of Sir Edward Htdes^
[1312
tute. But for this we muit take a leap down*
wards, as far as 13 Jac. 1. which we ntif
balance with tlie 7th of bis reign, when it ii
held by lord Coke, 3 Instit. 154. that where t
statute concerns the benefit of the king aktoe,
he may dispense with it by a Non Obstaate:
and by tlie court. That where it concenn the
benefit of the subject, the king cannot dispeiaei
Roll's Ah. tit. Prer. fol. 179.
7. Whereas our chief justice thinks, that a
statute's providing agamst Non Obstaatai,
shews that the king oouki otherwise have da-
pensed with the act by a Nod Olwtaoli^
It is not only unconcluding, because it migk
be no more than an argument of an aboe
of the law ; but turns very strong agiimt
him : for, admit the resoluuon of the judm,
8 H. 7, were as he contends, yet lie, who m^
so much of a concession of the commons of
England, assemUed in parliament, wbes
he thinks it of his side, ought surely Is
yield, that the judgment of king, k>rds tsd
commons, is of oncontroulable autboritr.
Wherefore when not only f»ne, but aevcnil par-
Haments provide, that all Non Obstantes thill
be void, is it not jnlain that their judgment wis,
that such Non Obstantes could not be set up
by any resolution of judges f And for this ve
have the judgment of king, lords and oooi-
mons, and that of but late days, that cfis
where a j^ant is made to the king, where it
will be said he is solely entrusted for the pubie
^ood, yet it may be out of his power to defcst
It by a Non (Ibstante. This appears br tke
statute 19 Car. S. c. 8. (a) which providM,
That no letters patent granted to anv person, of
exemptions from subsidies, Sec. sliall free thisn
from the charges of any sum granted by that
act : and all Non Obstantes in letters patent,
made, or to be made in Imr of any act or acts
the discoverer could not have had his share, of parliament, for the supply or assistance of
which they agreed that he ought to have, and
so the licence was only as far as it concerned
the king. They also settled the other point,
which before was a doubt, (z) that a pardon
before an information brought, would defeat
the informer. But then the authority of the
first point is suspended by a doubt remaining
before all the judges, aflterwards assembled
upon a re- hearing of this cause, in a more
settled time. Indeed they agreed the other, of
an intormation after a pardon ; but hitherto
there is no matter of proof of any case, wherein
the king by his dispensation could discharge the
penalty given not only to himself, but also to
an informer, who has his action given by sta-
(u ) This is not rightly abridged by Brook*
tit. ChartLf dc Panloa, n. 24, 87 II. 6, f. 5, ad-
journatur.
(jc) 37 H. C. 4G. V. 5 E. 4. fol. 04. a.
Wlicre a statute concerns only the king him-
self, w hich the king may chuf c to use at his
will, (Vc.
(y) 3 H. 7. fol. 13. b. Chief Justice Hussey
citing Fortescue.
(x) iH.7. fol, 2. b.et3.a.
his majesty, are thereby declared to be void
and of none effect.
And even where statutes have not exprfsslr
provided against Non Obstantes though the
statutes were such as restrain what many tike
to be the king's prerogative ; yet if we receive
the sense of Lords and Commons, the king has
no prerogative warranting Non Obstantes to
them, as appears by the articles against kin^r
Richard the second ; (b) one of which is. i^t
that the king, i*ontrary to the laws and wills uf
the ju^)ticcs, suflered s'hcrilTs to continue lou«:fr
than one year, 6cc.
This were enough to set aside all pretences
taken from Calvin's case, though, as sir
Eilward Herbert pleasantly suggests, it were
resolved there, tliat that was resolved S U.
7. which was never mentioucd till afkr
the resolution. Here is the authority of
Lords and Commons in compi'tition witk
that of mercenary judges : and if the
(a) According to Keble, c. 7. but not printed
there.
(b) Vid. the SUt. barelv prohibitorT. IS.
E. ^. c. 7. et 11 £. 3. c. 9. V. luiightw.
isis]
far neglecting to taJte the Oatht.
A. D. 1686.
[1314
eoDcasioiit of the commonfi, alone asi«mb1et1
to parlinment^ tin* of weight v>iih liim, 1 koow
not why tbrir <trnia)9 ou£^ht Dot as welt to be
ur^eH ig^riirrei him ; which if we may do, not
only the Hctions amlloo^e reasoninii^ in C'a1rin^£
caic,CcJ but the ratin rraolution there, mny be
'justly culled mere court law. Such I am sure
li is, thnt the honest House of Cotditmiiis, 4
Jac. i. (d) woulr] not bear it : and any one thftt
reads th« ai^gumentg nf those learned men whu
manajTL'd the conference with the lords ujKm
the question of the union of the two kin^dornSf
i&ay easily see how inexcusable the judges of
ibat liiiic were* to proceed to the judsroient in
CMtTin's cate, alVer they b»d l)een sO enlii^hten-
•d. Nor could tliey Imt tnow, thnt the then
pitHiament was hrolcc up ; bi*cj\use they were
nm so complying a* the judtTfes shewed them-
selves both then and aftcrHtmN, But they
secured tb>ir cushions by it, while sir John
'Bennet, (f) l)uherofthp|»rc3»entlord OK<iulHlon,
lo«t tii^ in the prerogative court, and had a
fine impoitcd upon him into tha
»cvpr.Tl years after, upon pretence of
but as I urn well infortn«^l, the real
jj^ound was, his ili^reliKhint; speech in parlia-
ment ujxm this subject. It in well known,
'•9fiM» prioecK ui^cd to have good memories tliat
* ay, ' Mnoet altft mente rejiostum, &:c.*
8» Non Obstantes hating' no other founda-
tion th»n in the encroachrucnts of princes, and
•ervililY'd'jnfli;cs, especially if we except casea
eoucer nitii^ the kiiijj alone ; they ought not to
Rilratiieti to any new case. The advice of
tetnn (/} will me up in judgmt^ut against
h men, who tells them, if such ihiopi never
••uii(>cuL'd belbre, and the judgment iji \i iihout
lig:lit frnin former case», and difficuU, let it he
«djnurncd to the Great Court, According^ to
ivhith, adjournments to eusuingf parliaments
liavc been tVctjucnt in former days, when there
yrerc mor'- learned judges ; ancT that as often
lor the w oiujlitines!* of the matter, aa intriGacy
pt the points.
0. But for the closto^ aij^^rttTatiou, tec. p.
whereas our chief justice denies all in-
means for jjrocuring; opinions^ and stands
his innocence, challengrin^ the world to
thing of that kind to his charge; I
this time, few will the lesc suspect
of his a^unince ; if either tlireats
can l^ ] proved upon htm, the
ivori J u 11 1 judge either of ihein indirect means ;
(c) 8cc tbcm cctisnred in Vanghan, fol- 237.
^5. 401.
(d) Moor, a. foL TJHJ to 805.
* (e) Vid. ht» CeoMire. 4 Instit. foL
fn
) '2 Tnst. fill iKifr
336.
I. 1. c. Q, Si autero
aierint, et obscurum el
um, tunc ponantnr ju-
'lilcia m rcsjiecturu U!;ciuc ud iMagnam Curiam.
Tld. 1 £. 3. 7. b. 33 H. 6, 18. a* C*e«t un Act
fW Parlemetit et cos volumus estre hieu avis
drvant <}tte nous adnvillamus a«cuu act fait en
1^ PartliiDCDt, >k peridvcnture U matter dotiai-
laoder jtisque ad pn»<;hein Farltaitat
VOL. Xh
and I am mncfa misinformed^ if boih cannot be
usily chirired.
It afti^r aiJf he can excuse himself withoulfl
renouncing infallibility, Ace. p. 623, and mak • I
Lug asseverations of 'keepintf to the clear tlic- 1
tatcs of his conscience} I must say,judg-cs ia^
former ages have had hard luclc, and been ]
made examples to little jjurposc. King Alirtnl ,
would lose the reputation of his justice, ill I
hang:ine above thirty judj^cs; (g) and parliik-j
rnent^i have been very barbarous to proceed^
againrt others as traitors, who yet, either were
ao iog^snuous to confess their faulta, or, at
lca.st, not so provokiny^ us to jtistify them«
It is well known in story, (h) that six i
judjj^cs, and two of the king'* counst?l at law, '
stiffered for treason, upon a parliamentary pro-
S4 cut ion, 1 1 R. 2, for delivering; their op mi out,
that they were to be punished as traitors wh«
hindered the kir^^ from exercising his soT^>
reign ty atd preroo^tive over a statute, and an
ordinance mat 'commisfion made in ilie fore* |
going parliament, (ij The substance of their j
crime lay in ascribing to the king a power t9 1
defeat the provi^inas of the parliament for tbt ]
STifety of the nait<»Q; and i% a direct j » recede nt, j
at which our judges ought lo tremble. Nor j
can it avail them, Uiat the exprcv^ words of the j
statute *?5 E. 3, C. 2, do not condt mn thfm, *
smce that act tnmr^its c mn»oti-hiw treaaont ]
to the judgment of parliament: aod the bX^-
lute 1 ilar. c. 1, leaves that jiovicr untouched, j
And whti can doubt but such a it!solution, and ]
that juNtifjefl in print, aud publislied to tha
world, is an over^ act of ireasou, as it tends to
the tubtertingthe faudameotal rights of par^ j
ha meats: nor can thtj have any colour for]
asking, with the lord StraiTord, where is the J
buoy ^ when ihej see so many ship^TCCks lo i
admonish them.
Nor ought sir Edward to wonder at a trca«oti ^
against the government, though not directly '
against the person of the king, his relatives,
officers, or his coin ; nor yet an actual levying
of war within his kingdom^ or adheritig to hit
enemies ; (k) for he may find among the ar-
ticles against the lord Ktmbolton, and nthe«, J
exhibited anno 1641, by his father, then at-
torney general,
• 1* hat thty have traiterouslv endeavoured to
' subvert the Tcry rights andf bciugs of par-
* 1 laments/ I
But since sir Edward pleads conscience far '
what he did, Ace. \k G23, and might have urtjed
the authority of spiritual guides, who would i
make the scripture notion of higher powent i&
sufficient warrant for Fuch a judgtnent ; I
shall conclude with the good queen Elaabelh-g '
(g) Vid. Mirrour, a. p, 206 to 300,
(h) Tresyhan, Bealknappe, x. ^ol 1, p. i,
(i) Knighton, f. 2T2G, 2I«f, ib« f. 5695.
R^^aiiam. lb. f. 2694.
(k) Vid. Glanvtl| p. 1, Crimen Iucjjtb ma-
jc$tati)4, «t dc nece vel sedifi'mr prrsontr do*
mini regis vel regui. Ex'* auu^
1643, p, 3^. V, Dugdalft
4P
S JAMES U. Proceedings aganut Dr. John PeackeO, [ISlC
1S16]
iSoetrioe of tbe famoui Bilsoo, aficrwards bi-
thop of Winchester. (I)
• By fiip«iw powers ordasned of God, we
* imderBUnd nrit only princcf, but all politic
* itates and re^nment ; aome where the jieople,
* some where the nob!es hafe the same interest
« to the swoni that princes hafe in their king-
(I) Bilson of Christiao 8uigectioD, p. S80.
* doms ; and io kingdoms where princes hen,
* rule by the sword, we do not mean the
' priuce's private will aeainst bis laws, but his
* precept denred from nis laws, and agreeia^
* with nis laws.' (m)
(m) Glan? il, Prol.
Fleta, lib. 1, c. 17.
p. 9.
Bractoo, vol. 3, c 9.
Fortescue, c. 9. Mir.
351. Proceedings against Dr. Johx Peachkll, Vice-Chancellor,
and the University of Cambridge,* for not admitting Alban
Francis, a Benedictine Monk, to the Degree of Master of
Arts. April and May, 3 James II. a. d. 1687.
On the 9th day of February, beinfif Ash-
Wednesday, came a letter uoder his majesty's
stgnet manual, daied the 7th of the same
month ; the substance whereof was, That
*8ee the case of Magdalen College, Oxford,
this same year, poit^ and Gutch's Collectanea
Curiosa. Of this Case, the Proceedings
against Magdalen College, and other measures
connected with them, Burnet writes as follows:
** The see of Oxford was given to Dr. Parker,
who was a violent independent at the time of
the restoration, with a nigh profession of piety
in their way. But he soon changed, and
struck into the highest form of the church of
England ; and wrote many books with a strain
of contempt and fury against nil the dissenters,
that provoked them out of measure : of which
an account was given in the history of the
former reign. lie had exalted the kmg*8 au-
thority in matters of religion in so indecent a
manner, that he condemiicd the ordinary form
of saying the king Has under God and Christ,
as a crude and profane expression ; sa^ ing,
that though the king was indeed under God,
yet he wuH not under Chritft, hut above him.
Vet, not being preferred as he expected, lie writ
afler that many books on design to raise the
authority of the church tonn iudependance on
the civil power. There was an entertaining
livflinesH Ml all his liooks: but it was neither
gravf* nor coir»Tt. lie was a covetous and
arnhitioiis ninn ; and seemed to have no other
sense of i-eli<4it)n hut as a political interest, and
a subject of party and taction. He seldom
came to prayers, or to any exercises of devo-
tion ; and was so lilled u|) with pride, that he
was bec.oiiie itMiifleiable to all that came near
hirii. These two men (Parker and Cartwright)
were pitched on, as the fittest instruments that
could he timnd among all the clergy, to betray
and ruin the church. Some of the bishops
brought to archbishop Sancroft articles against
them, which they desired he would offer to the
king in council, and pray that the mandate for
consecrating them might be delayed, till time
w«r« givtu to examine particular*. And bishop
hcarinjg^ much in commendation of one Alban
Francis, a Benedictine, the king was pleased to
command the University, that they should ad«
mit him to the degree of master of aru, with-
Lloyd told me, that Sancroft promised to him
not to consecrate them, till he had examined
the truth of the articles ; of which some were
too scaodalous to be repeated. Yet when San-
croft saw what danger he might incur, if bt
were sued in a Premunire, he consented to
consecrate them.
" The Deanry of Christ's- Church, the most
important post m the University, was g^ven to
Massey, one of the new converts, though ht
had neuher the gravity, the learning, nor the
age that was suitable to such a dignity. Bat
all was supplied hy his early conversion : and it
was set up for a maxim, to encourage all con-
verts. He at first went to prayers in the
chapel. But soon after he declared himself
more openly- Not long after this the presi-
dent of >Iagdalen College died. That is
esteemed the richest foundation in England,
perhaps in Europe : For thongh their certain
rents are but about 4 or 5,000/. yet it is thought
that the improved value of the estate belonging
to it is about 40,000/. So it was no wonder
that the priests studied to get this endowment
into their hands.
** lliey bad endeavoured to break in upon
the University of Cambridge in a matter of less
importance, but vithjiut success: and now
they resolved to attack Oxford, by a stranjxe
fatality in their coimsrls. In all nations the
privileges of colleges and universities ir?
esteemed such sacred things, that few will
venture to dispute these, much less to disturb
them, when their title is good, and their pos-
session is of a long contiuuance : for in thesei
not only tbe present body espouses the matter;
but all who liave been of it, even those that
have only followed their study in it, think them-
selves bound in honour and ^aiitude to assist
and support them. The priests began where
they ought to have ended, when all other
thingi were brought about to their mind. Thi
ISIT]
out administering to him ttnv oath or nntlts
• what^>eTer» any law nr s^tiitule to llic fonlrary
in any vvite llOlwilhfitall(l1^li,^ \uiK whicb Ihs
niajesly was graciously pleased to dispcuk-e in
for not ndmitting Allan FroncU to n Dfgrei. A. D, 16S7* [1SI8
the beliatf of the said Albun Francis. Oo
Mon<lay the *ilsl, the Ticc-thamellor havififlr
kiiiiiniuDCMl a congregation, read hii majesty 'i
iHtE'r, piirfkorting us Itcfure, and lUfRTseribed
rasrs the ohedirnce that wns uncc paid %«uuld
ben much fctri>iiM[iT ur^utnetit liircotirinuing to
df> ji, as oft Ah. it should he dfjiired, th«n any
Ktich [>roviso could be nofninf^t it.
*' l*|K»n this the vice chancellor ivns sum-
moned iK-fore tlic ccclesiiuiicul comrnissinn to
ansiver this contentpt. lie w as a t ery hruievl,
hut a very Hcnk man* He made a' poi»r de«
fence. And it was no imall rctlection on that
gieat body, tVmt their chief magistrate was so
Iitlle able to astiert tl»eir jirivilc^»e«, or to justity
their prucecdifip:^. He \va^ treated %virh great
c<MiteiM[it by Jtireries. DiU he having actril cmly
as the ehirt^ pct^*>n of that bwty, all thiht wiia
thought tit lo be done aguin«t him ^va?, to turn
him out of his otHce. That was hnt nti an*
nynl oHice, and of iia pmtiti so thiji u-av %
slight couRure^ cliieHy when it was all that fol-
\imex\ on sucli heavy thn'aieiiiTi^B. The imi-
veruity chose another vice-chancellor^ who
was! a mail of moch spirit i and in his spei^ch,
which in course lie mnde upon bin being cliosen,
he promii.ed, that, during his magisUacy, nei-
ther reiigioUf uortUe rights of ihetHHly^ shcnitd
siitfer by his means. The court dtd itot thnik
fit to insist rauiT upon i\m matter ; which was
too plain a coofcssioOp either of their vtrcakoefi
to beginning such an ill grounded attempt, or
of their feetdeness in letting it fall, doing so
little^ aAer they had talked i^o nmeh about it.
And now all people began to see that they had
taken wrong measures of the king, wheti they
thought that it would be easy to engage hitn
nito bold things, before he could see into the ill
consecjuences that might attend them, but that
liemg once engaged he would rei^olrc to go
through with them at all udvcntmx's. When
I knew 111 111 he seemed to have <;et ii]> that for
a maxim, that a king when he made a steji
was never to go back, nor iu encourage fB<;tioa
and disobedience by yielding lo it,
** After this unsuees$>ru I attempt upon Cam-
bridge, aiiotlier was maile upon Oxford^ ilmt
bated longer and had greater effects ; which
J shfill set all do%ui togetlier, though tlie con-
clusion of this atfair ran far into the yeur after
this thst 1 now wiite of. The presidentship
of Magdako'a was ^iven by tlia election of
the fellows, 1^ the King sent a Mandumut,
i'e<inii ing them to choose one Farmi:T, an ig-
uoraut and vitiuus person, who had not one
quuliticalton thut could r^coluu)end him to so
litgb a pi»»l, henides ttiat of cbilitfillg hi* re-
ligion. IVlandatiio^ Ictterf had uoT^gal autho*
rity in thi ra ; but all the great ptelVrnients of
the chutch b«»ing in the king's dis|H>:4at, thus*
who did pr«tend to litvour, were not apt to re-
fuse his rccommendalioo, lest ihiit aliould
be ufterwards remembered to their prejudice.
But now, since it was fisible in wtmt chtanuel
fiivour tvas hke to run, less rvgard waK had to
iucb a l«itcr. The ftfliuwt of that boos* did
Jesuits fancietl, that* if they could get fooling
in the university, they would gain surh a re-
ptitatiou by their metlinds of teaching youth,
ihat they would carry thetn away from the
univciVity tutors, who were certainly loo re-
nti^, Home of the tnore moderate among
them propose<l, that the king should endow a
new college in both universities, which needed
tiot have cost above '2,0LH}/. a year, and in these
•et his priests to work. But eirher the king
Stuck at the charge w liich this would put him
to, or his priests thought it too mpan nnd below
hts dignity not to lity bis hand upon those
great Imdies : so rougher methods were re-
Bohed on. It was reckoned, that by fright-
ning them they might be driven to compound
_ the matter, a ad deliver up one or two col-
Ks fo them : and then, as the king said
f times in the circle, they who taught best
Id he inost followed.
** They began w jth CaMibritlge upon a soRer
point, which yet would have mtidc way for all
the rest. Ihe king neut his letter, or Mao-
damns, to order F, Francis, an ignnrnnt beue-
dictine monk, to be recc-ived a master of artsj
once to open tiie way for lettitig I hem into the
degrees of the Univeisity. The truth is, the
king*! tetters were scarce' ever refused In con-
' terring degrees: and when arobatwiiloi's or fo-
reign princes came to those places, they usually
Ifave such degrses to those who belonged to
them ns were desired. The Morocco eni-
bassador's secretary, that was a Moliometan,
bad tfiat degree given him, but a great dis-
tinction was made t)et>«eeii iionorary degrees
^ren to str»nger«$, who intended not to live
^pinf ^ <i'^"i '1'"' ii"it^ given to such as in-
^^■li iL^m : tor every master
Hrar_ ... ^ _ .1 the coovocRtion^ they
reckoned, that, if they gave this degree, they
inust give all that sboald be pretended tooo the
like authority : and they knew, all the king*s
pn4<sia would be let in upon them, which
lai^lit oe^sion in present great di!»tniction and
•ofitiffltioiia mmofig them ; and in time tliey
might grt)w lo be a majority in Uie convoca-
tion, wiiieh is their parliament. They refused
the !Mundamus with great unanimity, and Hith
n finitncfcs that the court bad not expected
from them. New and repealeil onJers, full ot
•etcre tbreateoioj^s iu c;isie of diynlu dienct%
•rere ticiu lo theiu : and tlu!> piece of i. iltery
was every where jsei uj», ihut a Papist was
reckoned worse than a Mahomiftan, and that
theking^s letters wrrcU-Hi* considered thuu the
tniba^iailor from Morocco liad been. Some
|M>te or falMO men of the univcrsii}' tried to
compound the matter, by grantuig this decree
in F. Francis, but rnacluig at the same time,
that it should not be a precedent t'or the future
iior soy other of tlic like nature. This was not
gjiift wy tu ; for it wis said, thai iu oil sucti
1919} 9 JAMBS n.
«T9aarlniiij«iidlipea-Mo?edTicc-^iaMb11or
of our UniTenity of CMBbridgai to be oomnia-
nicated to the lenato tbere ;^ on tin rtadiiig
wiMKOfy Uie tenate, who maide the best «d-
upHli thh cboete Dr. Hoogb, one of Ibeir
bo^, who ai he waa in all rmecta a atatotable
nao, ao be waa a worthy anda firm man. not
a[{pt to be threatened ontof hia riffht. They
carrieil their eleclioa aocordinr to ttieir statntea
to the bishop of Wmchealer, neir fiaitor ; and
be confirmed it. So that matter waa legally
aetUed. Tbia waa highly reaented at ooort
It was aaid, that in caae of a mandamus for an
imdeserving man, they ongbt to hare repre-
aented the matter to the kmg, and staid till
they had hia pleasure : it waa one of the chiaf
aarvioea that the onlversitieB expected from
tIMr chancelloray whieh made -toem alwaya>
dKioae men of great credit at . coort, that by
their interest such lettera might be either pre-
vented or recalled. ThedttkeofOrmond was
nowtbehr chancrilor ; but he had little credit
in the court ; and waa declming in bis age,
whioh made him retire into the country. It
waa nracb obserted, that this unirersity, that
had asserted the king*a prerogatiTe in the
bigheat straina of the moat abject flattery poa-
Mle, both in their addresses, and in a wild de-
mo .they had made bnt three yeara before
this, in which they- had kid together a aet of
floeh high flown maxims aa mustesteblish an
imcontTMable tyranny, shonki be the flrst
body of the nation that should feel the efiecta
of It most sensibly. The cause waa browht
before the ecclesiastica] commission. The
fellows were first asked, why they had not cho-
aen Farmer in obedience to the king's letter P
itnd to tiiat they answered, by ofiering a list of
many just exceptions against him. The sub-
ject was fruitful, and the scandals be had giren
were verv public. The court was ashamed of
bim, and insisted no more on him : but they
said, that the house ought to hare shewed
more respect to the king's letter, than to bare
proceeded to an election in contempt of it.
*' The ecclesiastical commission took upon
them to declare Hough's election null, and to
put the House under suspension. And, that
the design of the court in thia matter might be
carried on without the load of recommending a
Papist, Parker bishop of Oxford, wss now re-
commended : and the fellows were command-
ed to proceed to a new election in his farour.
They excused tbemseltes, since they were
bound by their oaths to maintain their statutes:
and by these, an election beug once made
and confirmed, they could not proceed to a
new choice, till the former was annulled in
aoioe court of law : church benefices and col-
lege preferments were freeholds, and could
only be judtred in a court of record : and, smce
the king was now talking so much of liberty
of conscience, it was aaid, that the forcing men
to act against their oatha,aeemed not to agree
with tbuae profesaioiia. In opMsitian to tbia
it waa aaid, &at tba atntoto nf " ' '
9
▼aataga tbay oopM of the ▼ioO'Chatmallair^^
delay, in order to git adfioe. raaolred to tfrtlfj
ftliMV juimtnmJiL ana ftlnu^* ^^^^;— m.,- ^-^— ^ ^
the thmg, andin a mottor of aooh i
been alwaya eonaidered, aa .things that da^
pendad entirdy on the bnif's good pleaatttaf
ao that no oajiha to ohaenro tboaa eotdd hmi
them, when It waa in oppaotkMi to tfaekiig^i
KahopCait.
«< Thia dkl not aatiafy the fdbwn : and.
though the long, aa bo went throa^ ChJM
HI hia progreaa m the year 1687, aent fit
them and ordered them to go preaently, ana
chooae Ptolwr for tbeu* preaiSant, in a i '
ill anited to the maieaty of at
(for he tr ' ■ ^ •■
pronounced int
no eAct on them,
oatha, tbooghwitl
that they hoped
They continued thna firm. Asttbalteni<
.mission waa aent from the t
roissHm to finish the matter,
'wrkrfat. waa the head of tbia
aur Charlea Hedgea waa the king'a ndmoniala
manage the matter. Cartwright aotad in aa
rough a manner, that it shewed, be waa io>
aolved to sacrifice all thinga to tbokiM^plaa^
aore. It waaan afflicting tlung, wbafaaaaHl
to hare a peculiar charMter oc incKgnity in i^
that this first act of Tiolenco oommittod agiiMl
the legal poasessions of tboebvcb, waooa*
cuted by one biabt^, and done io lb? o« W
another.
'* The new preaident waa tomed oat And,
because he wouM not deliver the beys of bit
hooae, the doora were broken open ; aai
Parker was put in possession. The foUant
were required to make their anbnusaion, is
ask pardon for what was paat, and to accept sf
the bishop for their president. They still plead*
ed their oath : and were all turned oat, exosft
two that submitted. So that it waa rrpartai
to see that House soon stockt with Paniala. Thi
natwn, aa well as the nnif ersity, hicfted on al
thia proceedmg with a just mdignatioa. It
waa thouffht an open piece of robfiery and bar-
glary, when men, authorized by no Itfri
commission, came and forcibly tuniod aaan eat
of their possession and freehold. Tbb agiati
ill with the professions that the king was atil
making, that he wouM maintain the Chureh
of England as by law establiahed : for tbii
struck at the whole estate, and all the tempo-
ralities of the church. It did ao inflame tbs
church party and the clergy, that they asnt
over Tei^ pressing meaMgea upon it- to tbs
prince ol Orange, deairing that be would mtsr-
pose, and espouse the concerns of the chimb {
and that he wouU break upon it, if the kaam
wonldnot redress it This I did not aeo iaMT
letters. Thoae were of such importnBoa,sMa
the writmg them mightba?e beaaoaiticdto
b^b ttreaaott, that the jpnnce did Ml tbiak fli
to show tbem. Bat fia oAna mi^ ba Mi
pmaad bynany of tliai% who 1
'
1321] Jbr net admitting Alban Francis la a Degree* A. D. 1687. [1
and oofel matter to iDtfirpose; acconMo^ly
there wai n (Javier, it Is cgniiiiodly called a
Grace, the anginal pi()er whereof 1 hare s«t!D,
dfftwa ap in order tu be put to the vole of the
BoiMe alter the ortlioary aiul \ihWk\ way ; hut
the constitution at that hotly being such, thul
this must then ofnecnssity have be^n tir*i pro-
|MMeil to wh&t we eatl thelleafl, whiclt consists
of six jitrsons, each of which lias aa arbitrary
Toice oiid frowvr, ii|>on drshke to stop any firo-
ccedtngs firtally, and hinder it beio^ put to ihe
House at all ; * tUh method was hud aside as
tropracticabie upon tlmt ucca,doQ ; because Mr.
Basset^ a dec bred Homan CatlioUc, and one
that had openly asserted Mr. Francis's cause,
bappcued to tie one of the six who eoinpose
the IJead tor tliis year ; it was therctbre pre-
aumeJt with gr^at appeamnce of reason, that
be would put a bar to the proceedings j so the
Grace not heutg suffered to be ofTired to the
House, the ^feuate'& Ketise could never have
been fully and particularly known thereu|M>n.
This con»idenition constrained them to the
use of another course, which was, w ithout the
formality ol' a snlfrag-e. voluntarily to testity
their coucuntiux' with the vice-chancellor, and
advise him tti hu-li^far the udaiittrng Mr. Francis
till the king had been petitioned to revoke his
mandate. A9 soon as tlie letter came to town,
th« Vice-chanceltor wrote a letter to the duke
of Albemarle, our chancellor, to beg his inter-
iseiaiaii with the king*, which he returned word
Wtt tried with none eflect, hut possibly such a
b^j as the University concurrtng and signintr
m petition, if that couhl lie aid milted, might
prove better and more succ-esslul. Now, per-
liapSf It' every single man pt*uscna» to the
noinber perhapft ol' one hundied and lifty or
two hmwIrfHl, should addreiis in person the
fiee-chaoccllor, this might look tumultuary^
and il was thought the n^uie quiel, decent, aud
respeetlul way to Bi^nd tip tht^r st^n^^e by mes-
•engers iVoin'ciich house: to this purpose Dr.
SoKiult, proles* rji' of caKtUKtical divinuy, was
made choice ot' hy the non-regents, and Mr.
Norri!!, a fellow of Trinity -lol lege, by the
regents. The substance i>f what ihcf * deh-
rmd^ was, TImt the Hou»e thought ilie ad-
mission of >l r. Franci^i wiihtmt the usual oaths,
iUega) and uniiute, and l<>i that reason advised
the king mi;:ht be ^NHitioued, in the doing
ivhich they were rearly to join »nd make it
their act. The opinions were given freely to
the two messen^i^rs of each house, and the
Ihicig waa bO unanimously approved of, that
ibtt only pei'soos taking notice of it, were three
bi« bittereit enemies^ to engage in their ipiar-
wftL Wbeo that was ocimmunicat«^d to me, J
was )»tdl of opinion, thiit, though this was in-
deed an act of devpotical and arhittary power,
jet I did not think it struck at the whole : ho
lb«l it was Ui)t in my opinion a lawful case of
oe: and i ciiuld not concur iu a
occasioned by audi a single act,
the prccodeal a^ by it might go to
Papists, and ona or Iwo bestdei : afterwarda
there waa a geiiUenian admitted doctor of
physic, having flrnt taken the oalhs ; and iba
C!»quire-beadlea and registers were ber>t to let
Mr. Francis know, that the senate wete readv
to aduiit hirti also, provided tiiat he would
^wcar as the law appointed ; but he refused,
in«iistiag on the king't^ dii^peiisalion : and Una
was the business of the tirat tneetmg about thia
matter.
Iiumefliately ujion the congregation's break*
ing up, Mr. Fmncistook his hon»e for London^
to rat^resetit at ^Vhitehall what had been done;
aod the same aflemoou the heads met in tho
consistory, to consult what letters bhould bo
sent, and to whom: they agr^ upon one to
the duke of Al^iemarle, aoa another to tho
earl of Sunderland, being the secretary of state»
through whose hands the mandate passed : an
esquire- beadle waa dispatched presently to
Loudon, who al\er having waited on tlie duke
of Albemarle, endeavoured several times to get
acceaa to the lord Sunderland, but could not |
at last having sent his letter, the main whereof |
was a roost hunable submission to his majcslVf
with very solemn and unfeigned prolcslaUoDa,
that what was now done, proceeded from no
principle of disobettience and sftubborooeftti bal
a conscientious sense of our obligation to lawj| '
imd oaths, and a respectful intimation that w#
were ready to f»etitiou the king that it might
he admitted ; but not daring to approach him
without some signiticatiouN that it would bo
ficcepiable, we applied ourselves to his lordship^
dei^irmg him to do the University the favour to
mediate for them, ^c. He was dismisaed
without any particukr answer: within a fair
days came a second letter, dated February 2%
which bf reason of the assizes and aomo
other public bui^incsa intervening, was not
ixad in ihe senate till Thursday, March
the ntli: the university and the vice-cban*
cellor in the mean time received a iettefi
wherein they found great satisfaction by ilia
opiuioni of some eminent lawyers, who con*
curre^l in the approbation of wiiat was already
done, and for tlie future, could adviac tio better J
course than humbly to represent the ease In hio ,
uiajestyi and entieat hiin not to think amissof 1
so loyal a liody, u I ways as the uuivei^ity hat <
shewed herself to be. Thestcond letter bein^ i
read the day aforesaid, which was exueily ibo
same as the ionn^r, excepting only the addi*
tion of A cluuftf*, to do it at our own peril ; tho
Senate projceded as before, to advise the vice
chancellor to bi^me expedient form, rrpreicnt-
ing tho case fully and clearly to the King, oa
well with resot-Tl to ibc dkg?dily of bucU ad«
IllijiSion, as the i^;ailV III i oIh MiUtir^ -. ih.^t
were hkely ttf v
gent House did t i
college (the pobiic orator) and Air. i^evvtcj
tellaw of Trinity rt\]U-^(* (the fririthematical^
petdcssoi) ; the ' Mr, Henrjf |
Finch, SOD to t. i llor, !tln J
Durton of St. Johi/;i L tilkj^c unl Mr. Willinni 1
Bowles of liiiig'f College i ail wtuiih waa dousl
ia»]
SJABfESZL
unoch— artjng — opJaJgD; batmiyMaB
1 fftfv it ^OMll J and tf hif <
•fto
totlMcwIcr
▼cry mAcnooB Mr. Bnid-
kopecf Kioff'sColkge, wcredoired hj tiie
▼iee chancelnr to go to LiniAmi with tbcM
fcttay and other iBstraetiMM, to apply them-
■dfcs to aereial perMW of quality aod cbarae-
tv,tiBat they would joio fbreea, aadthiDhila
thoauoocai wooM he noroproMIe, and the
the mifenity the .greater.
IfaDdaj, March the 13th, thetwogeiil
waited OB the dnhe of Aftconrle their chan-
cdtor, who received them with all the goodneM
{■ the world, with aaniraBcc, that Botwithstaod-
had waited on the IJnghefore, and he
hb indiaatinni ; nay, thoogh he had
i received with aomethiog of dn|4eanire,
wet fCBiidfiiBg the relation he here oi, he
^loiihi make another attempt, and thoogfat
himirif obliged to ooiit bo oidearoiiri lor the
WMfeiwty'i Oilety and advantme, Monday
the 14th in theovcBlBg, the dofce ef Albemarle
waited on the kinp, and in the paaangc tovarda
the bed chamber, took the two OaiBbndge |r»-
tiemen into the antichamber, thatthcv anght
he iotrodoced if occasion were : the king, on
the duke of Albemarle's acqoainting him with
the a/Tair, told him be had not then leisure to
talk, but be commanded the letter which the
Tice chancellor sent to the duke of Albemarle,
with which in bis bands he passed through the
rooms ; and making that erening a visit to the
qoeen dowager, gave the duke no further op-
portnnitT of knowing his pleasure at that time.
At the dnke's return from the inner room, the
gentlemen desired him to give leave that they
might use his name to procure an easy admit-
tance to the earl of Sunderland ; for they re-
aolved to deliver their letter to no bands but his
own, if that might be : the duke immediately
asnt his gentleman of the horse tJ one of tlie
lord Sunderiand's secretaries, makirig it his
^ipsire that Mr. firaddock and bis companion
might see the earl, who accurdioglv appointed
them to atieud next morning, and then coo-
ducted tbcm to the earl uf Sunderland's bed
aide, who took the h iter, and after some fur-
ther application to hiin by word of niousb, he
urooiiftf d to acquaint bis majesty, and tell them
his pleasure. On Thoisdav, at that time when
Mr. Dradilock and Mr. 6tanhope came, the
account tliey recidved was only this, Toat the
king had seen the vice chanceAor*s letter, and
was ofiended at the pneeedinga of the untser-
Mty, and wooU taka cara vary ihortly logivo
• JiirtharaDawor. ' .. *
P»7
nyalktimMi behalf of Mr
thcRfae caaoHBied to aBBcar,
;«»-T
rts
lieabafcia thehifdacoa
1 chandbcr, tho 9Ut cf Apri, ta
aaah thiagi aa ahaU ho^Sieclei
« b baa Bi^aMy*a hehair ^BdM
&e. Monday, April the lltb, aae*
panoBB BaaaiBated la t«-
alli
profodbythc ^ ,
BMcr m their behalf, aad be r"^"^
attamtyaan
from the eo
And Mr. Atterbury having rooeived fiivateia-
alruetioBa toatay, and f *
ehoaen peraoBally, hoi
thei
were proscBt, waiting oa the neat ob a com-
Blent time. The pevmaa deputed by the aa-
Bate to represent and act were theae :
Dr. John PeacfaeU, Tko ChaaecOor, MHte
of Magdalen college.
Dr. John Eacbard, MaHor of Kathariaa
hatt
Dr. Homlrcj Dabingtoa, Fdbw of Itimty
CoBege.
Dr. Thomas Smonlt, Fellow cf Sl Joha's
€>ollege, and Profeasor of Casuistical Diviaiij.
Dr. Wilbam Cook, Doctor of Civil Loo,
and Fellow of Jevus CoIWge.
Air. John bllers, F«llow of Si. John's Col-
lege, and the Pol^lick Orator.
Mr. Isaac Newton, fellow of Trinity Col-
lege, and Matheiuatical Professor.
Mr. James Smuh, Fellow of Queen's Col-
^'
3Ir. George Stanhope, FeUow of King's
College.
Tkmnday, April the 9Ut^ IfiSf.
Conndl Chamber. Commissioners PreMOL
L. CbancelkM* Jeffwys.
L. President SunderlamL
L. Mulgrave.
Earl of Tluotington.
L. liisbop of Durham.
I*. Bishop of Rochester.
L. Ch. Justice Herbert.
L.C*ear. IsMr. ViceChanoeUorheRP^
li¥bicfaishe?
ic'.h over against the lord Chaaeci-
and shewed biuwdt
He
lor, bowed
jL CAobc. la there any oao
Mr.
hy thtatBtfalB
1385] ^fir not admiiiing Man Franeii to « D^grti.
tUall be t»l)jt?cted Bt^faiiut Ibero, acconlin^ to
TLe noia^e mid crowd bciojyf f^reat, Sir. Brid^-
man the lle^'ister was forcbtl to r«(ieat tbat
«g«iii tu tht! lord chantdiur,
L. Ckanc, R^aU iUe aummoni* [Which
Va?i done.]
L. CVkjiic. Now, Mr, Vicv-Chnncellor, what
Jjiive you to say, wUy you did tn»L obvy his iim*
jcsJly^s CO mm and, itl It hall' ol' the gcntlemau
liieiilioncd there P
Vtce-OMnc, My lord, ymi cnijuire of me
Avhy I dtd notadruit Mr. Francis, according to
tlie ktDg'i« kitciii ?
Ztirfif CA^tnc. Ye«, Ihat'd the queslion I ask
you.
Vict'CMnc. I» this the only question your
lordship is pltased tu ask me *
iMTd Chufic. Noy, Mr. ViceChancctlur, we
will not CAjnUtlatc in thevcry be^muin^:: Fray
•nnner the tii-bt^ and then you slaUkuow tvhat
i«e Itave l4> &si^ luor^^
I'lCc ChtiHC. It IF hut 11 little h hile since we
ni«t in lown^ and tliis i.s a question of great
concern ^ J am not jirepared to answer it on a
•uddeu«
Litrd Chanc, Why, Mr, Vice- Chancellor,
my lords xjiccifiLul ii in their summoiks whiit
would be tjut*»tioncd, on jmr|>oseyou should not
come unprejiarcd ; but it may be Mr, Vice-
Chancellor did not attend iuttietently to tliat
nan of tlie summons, thercrore let it oe rciwl to
liini onee more. [Which was dooe.]
I^rd C/t*iftc, 5iow, 8ir, you hear it is for
rttlasing' to coroply with the king's uommnuds«
Vicr-Chunc My lords, I beg^ time to answer
you. My turds, 1 am a plain man, not used
to appear bi't'ore such an lioitnur<ible assembly,
and li I frhould answer hastily, it may bo I
lulg^ht Kpf^ak sHjmething indectnJt or uusnle,
which 1 shtiuld be a fler wards sorry tor; there-
fore I b. - It.tve, luy lords, to iia^e'iimc billowed
us t lusucli answrr, as may be both
J or ' , , and your lords hi us liouour.
Lord Chanc. [smiling.] Wliy, Mr. Vice-
Chaneetlor, as for your own safety, my lords
tore willitig you should take all the care you
cati ; but for wh«l concerns our honour, do you
not trouble younietf ; we arc able to consult
that, without any interposition of youi's.
Vic€-Chanc. My lorujc, I beg ^ our pardon if
I have suid any thintr unbecoming^ ; 1 mean
only the hotiour that is due fo your lordship's
<(uallty, my lord ; and ihetc fore betn|^ lo answer
bcf »'- ' f-- t:s of quality^ I beg leave to do u
wit' and in wnttng".
L^r . . .,.r. Well, withdraw a little, aini tny
lords will (titn^ider of your reque»*t.
Then all the company witliilrew, and about
three quarters of an hour after the Vice-Chan-
c^Uor uasscmt for into the ^inti' chamber, where
Mr. Bridgntan told him^ the fords conunis-
•ioners hud ijiveu him time till Wc<lnt**iday
Dext, till four m the afternoon, and leave to put
bis answer in writings and with couuMrlf and by
what counsel he would.
Wb«n th« counsel hid h«trd the ^tommis-
A.D. 16S7. [1396
sionem had granted it, they were somelhing
surprised, and biih to mo%e nt the thing without-
a rule o( court j tbcrstbre on Friday morning
l>r. Eu chord and Mr. Stanhope wcni to Mr,
Itriifgnmu^s office, to desire such soonler, or at
least a cupy of wi*at liad been said to the Vice-
Cbancetlor ; but he told them he had no power
lo give either ; only he repealed the words
over again for the salisfiiction of ih*^m and ihe
counset, %^hieh was the sa:ue the \ ice-Chan*
eel lor bad related from his mouili before.
Wednaday, April 27, 1687.
In the council-ehandier. — Commissioners pre*
sent as before.
About a quarter of an hour Wfonf? the lorils
met, Mr. Ilridgman came lo the Vice-ChiUi i
celior, and desued to know of him, whether he
gave his answer in writing only, or whether
suiy counsel would appear to ur;(tie it? T<>
which the Vice-ChancelUMr answered. Thai
his Answer was drawing out in writing, and
that he dill not expect any counsel there that
day, Mr, Bridgmao replietl, I he lords had
eonunaiidcd hiui to ask ihe^e queslionsi and
would expect to know so much bJ^forethey be-
gan to proceed. When the delegates wer^
called in, the lord chancellor said, .
lAwd Chanc. Mr, Vice-Cliancellor, Ibe last
time you were here you desired limetopu|
in your answer in writing: my lords have in-
dulged you so far, now where is jom- answer?
Vici-Chanc, Bly lord here it is
And gave it to Mr. Dridgraan, who after ^
whisper put il round the tible.
Lord Chanc. Read it.— [To Mr. Gndgmao.]
The Answea of the Unif ersiiy aud Senate of
Cambridge, to the Uueslion, V> hy they Jul '
not admit Alban Francis to the degree of <
Master of Arts lu the same University ac^
cording to his Majesty's tnandatory fetters
under his 8ignel miinualr* The Vice*
Chancellor and Senate of Cambridge, tor;
and in behalf of tbemselfesi and the said
University say^
* That by ihe statute made pritoo £lix, and
•entituled, an act lo restore to the crown ihf
* Rutitnt jurbdiction over the stale ecclesiaati*
* cal and spiritual, and abolishing foreign power
* repugnant to lhes:ime ; it is enacted, amongst '
' other ihuigs, that every person that shall bf
* promoietl to any degree of learning in anjt '
* Lnivei^itv within this kingdom, before h«
' shall receive or take any such degree, shaLl«
* before the Clmncellor or Vice- Chancel lor of ■
* the Uiiif ersity, take the oath in the statute
* inentifuied sud upjiointed ; uurportiug, that
* he doth thereby testify and declare in bii
* conscience, that his majesty is the only su-^
* preme governor of this realm, as well in '
* all spiritual and ecctesiastical things aoij
* causes, as temporal ; that uo foreign state or
* potentate hath, or ought to have, any juris* '
* diction, superiority or authority > ecctesiasti <»
* cal or spiritual, witbiu this rsalai i «i»d thai
1327]
8 JAMES n. Proceedings agatnsi Dr. John Peachell, [1328
' therefore he doth renonnce and foniakeall fo-
* reififn jurisdiction and authority, and promise
* to bear faith and true allegiance to the kin^,
* his heirs and successors, and to hb power as-
< sist and defend all jurisdictions and authori-
* ties granted, united or annexed to his majes-
* ty's imperial crown of England. That by the
* statute made quinto Eliz. entituled, an act for
* the assurance of the queen's royal prerogrative
* OTer all the estates and subjects within her
* domioions, it is likewise enacted, That every
* person that shall be admitted to any dep^ree
< of learning in any of the Universities, before
* he shall be allowed or suffered to take upon
« bim such degree, shall take the aforemen-
' tinned oath before such person or persons a 9
* shall have authority by common use, to admit
* him to such degrees.
* That by the statute made by his majesty's
* royal grandfather, king James the first, in
* the third year of his reign, entitled, An Act
* for the better discovering and repressing of
* Popish recusants, another oath is commonly
* prescribed, the oath of obedience ; by which
* oath is the person that takes it, among^ other
* things, enjoined V} swear, that his majes^ is
* lawml and rightful king of this realm, anclall
* other his dominions and countries ; and that
« the pope neither of himself, or by any other
■ means, hath power or authority to depose his
« majesty, or dispose of him, bis king^doms or
< domimons ; or to authorise any foreign prince
* to invade him or them^ or to discharge his
* subjects from their obedience or allegiance to
« his majesty, or to give leave to bear arras
< against him ; and that he, with true faith and
* allegiance to his majesty, will defend him to
« the utmost of his power. And aflerwards, in
* the statute made in the ninth year of his ma-
« jesty's said royal grandfather, entitled, An
* Act for administering the oath of allegiance,
< in it is enacted, that the said last mentioned
* oath shall be taken by the vice-chancellor and
« principals of houses in the university, in the
< convocation before the senior masters, and by
« every other pei-son that shall be permitted or
* promoted to any degree in schools, before the
« vice-chancellor for the time being, in the
* congregation 'house.
« That the vice-chancellor, and every mem-
* her of the senate, have taken the said oath,
* and the vice-chancellor and senate are en-
* trusted to put them in execution in the said
« university.
* That the vice-chancellor, by his oath of of-
* fice, has also sworn duly to execute his office,
* according to the laws, and cannot admit to
« any degree without the senate.
* That the said statutes were made for the
« preservation of doctrine and religion, pro-
* fessed by the church of England, and estab-
* lished by the laws of this realm, and of the
* prerogative and rightful power of his majes-
* ty ; that upon the receipt of his majesty's
< royal lett^ mandatory, the same were ny
* the Tice-chaDcellor oemmunicated to the se-
i; aod in order to the admitting the said
Alban Francif to the degree of master of aits,
the said oaths were offered to be administered
to the said Alban Francis, If he Yirould take
the same ; but he refused.
' That the admitting him without the said
oaths had been contrary to the said statutes,
and a breach of the trust in the vice-chancellor
and senate reposed, and a violation o£ their
oaths; and therefore they could not admit
him to the said degree of master of arts : and
by humble application to his sacred majesty,
did, and now again do, humbly desire year
lordships to represent this their case to his
majesty, that they may not lie under his ma*
jesty's displeasure upon any misapprehension
thereof. But whether your lordships will, u
a court, take cognizance of this matter, tbey
humbly pray your lordship's consideration,
since tliat the taking a degree of master of
arts in the university, or the admitting and
refusing to such a degree, is not any cause or
matter ecclesiastical or spiritual, but of lay
and temporal cognizance.
* And they furtlier offer to your lordships,
that in the statute made in the sixteenth of
the reign of his majesty's most toy al father
king Charles the first, entitled. An Act for
repealing of the branch of a statute, priroo
Eliz. concerning commissioners for causn
ecclesiastical ; and whereby the said brandi
is repealed, it is enacted, *< That no new
court shall be erected, ordained, or appointed
within this realm, which shall or may haic
like power, jurisdiction, or authority^ as tbe
high commission court tlien had, or pretended
to nave; but that all and every such com*
missions and grants, ami all powers and aa*
thority granted, or pretended to be granted
thereby, shall be void and of none elfcct, tf
in and by the said statutes more fully ap-
pears." '
Which being read, my Lord Chancellor said,
Is it signed ?
Mr. Bridgman, Yes, my lord.
Lord Chanc, Read their names.-
[Which was done.]
Lord Chanc. Well, have you any more to
say ?
Mr. Vice Chanc, No, my lord, not at this
time.
Lord Chanc, Then withdraw.
All the company withdrew, and about an
hour and a half afler the court rose ; and af*
terwards Mr. Bridgman desired to speak with
the vice-chancellor and delegates in the coun-
cil-chamber, to whom he said. That their lord-
ships had commanded him to tell them, thej
put off all further consideration of this matter
till Saturday come seven -night, and then thej
expected their attendance again. Mr. Vice-
chancellor asked him. If counsel would be ex-
pected to plead on their answer? He replied,
Theur lordships had given him no commissioB
to say any thmg to Uiat So they all widi-
drew.
Saturdty, May 27, 1687.
This ^y it was publicly ducoursed tbn^
|3SS6] fi^ ltd ndmiiting AlhaR Franen lo a Degree* A. D. 1687*
tbeldirni tW the lords Imd reifirecl a new
tommt^^ion ; at^) inimediulety Juivyrrs n<?re
consult^lj whether it w^rv projKr lu ume lliat
At lhi*J B{>pearQi>ce« ^Vhat ctmhl be i^suhi^iTit
(thcrenjion^ wu* lo this effect : Thnt ii weie a
^Iftxjd plea, if it could be %*ell proic^d ; for in rc-
Ci^itiiig H new roTiihtisRtfin in the inidbt of j»ro-
ccsis» especially il tliert hv niiy alteration in it
9S to the extent of their |ioite'r, would at Itaai
%e a g^od [iretence to hleg^in tlie whole canse
'tg^tn, and giun time ; but th»t it was hy no
means siife to a Hedge the ihintf, for a flying"
teport is no evidence ; and if that report were
&ise, it mij^bt be a g^reat prejudice to them and
Iheir cau^e*
pnindJ Cbanaber. ComiDissioners present
as before.
Lord Cktinc, Mr* Vicc-chanceHor, the last
you were here, yoiJ tra*e m a |iuper to
'Wty lordf , Brpjne^l by youreeU, and several others
coming from the university, whitrh consists; of
levei-al parts ; htil there is one things I must
erave Icare of my lords to dist^urae you on,
%liich concerns yoHmcdf, Tbo hirds took no-
lice, ihat ytoi ulled^^rc an oalli : Thut onth, it
iieenas, hindered you from obeying' ihc king'«
iSnjtndate^ Pray wlnit was iKe oatlif
Vice Chunc. My lord, this h a new ques-
tion whicli yon were |dfftse<l not to put beliire,
And 1 Ih-i; Ifuve and time to answer it.
L'frti Chttnc. U hy, !^lr- Vice-chancellor,
tliis nf|uire8 no time. My lords» I IHI you,
'took uiitice of an oath you pleaded for your-
•elf, an«l now they desire to know wl»ai the
^th is f
Vice Chauc, I he^ I may not answer has-
tily, hut that your lordships would let me
know what cjuV'^tions ym% would ask nve,
and let me answer them iu writing, and hy
Lord Ckanc. Why did you not cooiult
e<Hins«l when you took your oath ? I am really
CODceviied A)r the university of Cauibndg:e,
whereof ( myself h ait once a tnemU^r^ that the
Ttce chancellor, who is llje head, and the re-
ijresenlative of so Inirned u body, should come
here lKti»re the kmg's commissioners, wnd nc^l
ht able to give an account of the ouih hy
l^hich he nctefi alt thiii time, but doires coun-
mX and time to tell what the oath is,
f>r Cook, My lord, if your lordship pleases,
I think I ret^ieniber the word^ of the outh.
l^rd Vhunc, >*iy, g:ooil iloctor, how came
you, who never were vice chancel h>r, and so
jtiiver took tliii; oath, to know it ti«t1er thntt one
that is vtee clmnct'llor, ho<l hnth f,i:en it ?
Vii-f Chunc. 1 canoM nd the very
irofds of the oath, hut r n c of it is
thiji, That I fihould well ati<t , pros-
tarf^ot tnhniHtitrate munuitiii jiwcun*
U>rd CAum, Jly, munuif of offidum : Well,
what then ?
Vice Chanc. And, my lonV, thia office I like
|» be ststril hy the Salutes of ibe VBif^rtiiy^
Ittd the la^t H of the Jaod.
▼Ot. XI.
[1380
Lord ChQnc» Well, and how long bos Uiii
h^en the vice-chancrllor's oath ?
VictChanc, Indeed, my lord. I am OOt thle
to tell you exactly.
Lord Chime, How Jong" do you think P 1
will not lie you lo any time.
ViroChnnc. Ever sincr I knew what Ite-
loncfcd to it ; ever ftince I was head of a col-
lege.
Lord Chane, How long hite you be<rn head
of a colleife ?
Vtre'Cftanc, 8i% orMfen yearn, my lord.
Ltfttt Chnvc. IIhvi? not oilier Vice-chan-
cellors admitted to degfrees f« ithout oaths, who
have taken the ohlifratory oath as yott ha?e
done ?
Vice Chtinc, f ndeinl, my lord, I cannot lell ;
I ciannot remember every particular thing that
has been done*
Lord Chanc, Well, heeanse we will keep
close fo the question, donU you remember any
Master of Arts made? without oaths ?
I>r. Cook. Not under the tjuality of an ttnl-
Tersity nobleman, my lord.
Lord Chum. Nay, gm>d Doctor, yoa nerer
were Vice* chancellor yet; when you are, wo
may consider you.
Vict Chanc, The answer to your question
will depeml upon our University' book and re-
cords ; and if you will allow us time to i-onsulc
them, we can give vour lordship an acrount
Lord Chauc. N\v, look you, Mr. V ice-
Chancellor, you have gi^en in an answer in
writing already, and liecause there is some^
thing in that my lords would he further satis-
fied m, they have left it to me to ask you s*)raa
questions. I a«k you, therefore, if yoii re-
member any master of arts who hatli been ad-
mitted heretofore without th*?«c oaths P
Vice Chanc. J cannot say, 1 remember any,
my lord.
Lord Ch&nc. Did you never hear of one Dr.
Light foot?
P^ice Chnnc, 1 think, my lord, I liare heard of
such a one.
Dr. Cook. My lord, I beg leare ta speak ft
few words.
Litrd Chunc. Weil, Doctor, what is It jl>u
have to say ?
Dr. Cook, My lord, Dr. Lightfotit did aub^
senile.
Lord Ckanc* What subsciiptioti do yon
mean ?
Dr. Cocfk. To the 59 articles ; and the fSnt
of them is the kio- - - - r.
L)rti Chum • I swearing, doc-
tor? ButMr. Vip . , iiow u^any hava
you admitted by
Vice Chitnc, Ni tie, my lord, and h«
took iIh' ouths.
Lord Chonr, Do yoo ncter admit %rfthout
oaths them who Imre auch particidar letterf
pstrnt (Wnn the kiri': ?
Mr, StHTihopc. ' '1,
And as for 1>' y w#»re awara
before of this pat !ed|
and therilMre h&
4a
ISSI J 3 JAMES n.
]\!t'. Stunhofit unJertQi>k it, because llie books
ftQil university pajicrj* liaU been cnmmitted to
bi» iiispec'iion and care. In answer, \mi\ he
h^eti {j^nuitretj to ^peuk^ he had thi^f to ofler,
Tiiat the register of aubscrihers was then in
court, and bad a [ia[)eir readv in his haods tu be
m'tiduced, where Dr. Lij^hiront sitb««enlH;d ivith
Dis own hands to the 39 articles, ilie lirsl
whereof is ibe kinjj^s snpremacy ; and that be
could not rcfusb the natb upon a pi inciple, be*
eaube lite snuie must have bindtTf'd bis sub*
scription. And as a farther proof, be did offer,
tliey wero ready to swear ibis. That two gtn-
tlenieOf Uoman Catholics, servant!^ to the
flueen-dowager, did by virtue of the same
Letters ft-om the King, at the lime of his
coming to Cambridife, desire their IVr aster
of .4rls Degree. TLeir names ucre Terara and
Stephens. These gentU^men were propo!«ed
flnd grnoted, but n|ion refusal to swear, were
not adniitied. Of ibis they could hare
produced J First, A testimony upon oaih of a
ji^enlleuiau then iu court ; and l^esiiles ihat^ tlie
university papers aud giucts, ^vhidi *.hew these
^ettthfiDeuV iiamts, among the persoutj paivSifd
III the Hou»e^ hut wanting in the list of snb-
ftcribt^rs aud coiunienccr^. A^ler whitb iliey
ivou!d huve referred it to the couri, wheihir it
was probable thai tho Uiiivervity bbould admit
one of the queeu's servauiii viiihuul oailis, and
yet refuse two more who liad the satue lille
every way, because ibey would not lake the
oaths ? liui the lord cbancelldr would nol bear
him.
Lord Chanr. Nay, look you now, that young
genilemaQ expects to he vlce'chancidlor too ;
when you are, 8ir, yon may speak, but till
then it IV ill bet^ome you to foroear, Mr. Vice*
Chancellor, when was it^ pray, that you re-
ceived the king'** letters ? the tirsl 1 mean,
Vitt'VJtanc. 1 do not peHectly remember,
my bird ; I cannot c^ll lo mind the day of the
month.
Ij>rd Chanc. When were they datetl, do
you know f [Tu Mr. Brtdgtn&n^ my lord
|>a using.]
Vice Chanc. My lord, I renaember it was
A fib' Wednesday.
Lord Chanc, And when was it these letters
were published iu the Senate?
Vict Chanc ^ It was the seven -night after,
my lord.
Lord Chanc, What is the meaning of the
deity, Mr. Vice-Chancellor? The king's busi-
ness usefl to have a quicker dispatch.
Vict Chattc, It was a novel thing, and 1 was
wUUug to give myself aud others time to con-
sider Of I it.
Lprd CAcinc But when you bad read the
letters, why was not the client lem an adnoittetl ?
Vice Chanc. My lord, iSe senate sent to me,
to desire me, lliat I would forbear admitting
Mr. Francis^ till I had petttioued the king to
rcf oke the mandate.
Ijord Chanc, Why^ does ilioking^s mandate
u^e to be disputed F Did you ever see a man-
date voted in the iiounf, wbethcT it should be
aWy^ or aot ?
Proceedings ugainat Dr. John PeachcUi
Vice Chanc, No, my lord, UikUally they ii
not ; but the House sent to me »" hrlw :»r^ d
they have not iiad any of tbiii i^ ve*
Lfrrd Chanc, Did you ever ki \. man-
dares of tbe king's refused bj ibo Umvefiit;
before ?
Vice Chanc, (After some paiisc] — Yesj nj
loril, (Several.
Ltrd Ciiftnc. Pray, give us one iiistaiice*
Vice Chanc, My Wd, oueTatoelL
Lord Chanc. When, pray f bow long i
that ago ?
Vice Chanc. I cannot recollect just the I
hut it was in his late majesty V reigu j 1 f '
ubout fourteen or sixteen y^ars ago.
jMrd Chanc, How vras that ?
Vice Chanc, My lord, the mandate
given to one Talnetl, a non-coutbrmist miaij
ter, and be refuijed to subscribe and lake '
oaths J whereupon, my lord» th« uoirer
pethioned the king, aud represented tbe ma
to him, aud the king was pleased to recall
mandate.
Lard Chanc. 3Ir. Vice Cbanrellor, had nol
you a mandate lor another gentleman at
same time with this, which you refused ?
Vict Chanc. Ves, my lord, it ivas to make I
gentleman doctor of physic.
Ltnd Chanc, Ami he was admitted upon i
was he not? — Vice Chanc. \v%^ my lord*
Lord Chanc- Did the senate vote his m
dale? — Vice Chanc, No, my lord, they did i
Lord Chanc, Why should tliry tiiirri>osei
the otie, and not in the other f
V tee Chanc, That bad no dbpeosatioiit I
lord, for the oath iu it,
Ij)rd Chanc, But however, if they did ndl
vote it, nor do any others of tbe kiug*s lettrr%|
how do you know tl>eir consent ?
Vice Chanc, My lord» it is presumeil up
ibeir being silent, and o0eriog Dothing u> I
contrary.
Lord Chanc, Av, we have a proverb, MrJ
Vice Chancellor, silence gives consent ^ hot iT
seems he t»as admitted immediately, wai 1
not, before you could know whether they coa
tented to it or no?
Vice Chanc, No, my lord, he was not
mitted till the house deiireJ me to forbetur ^
IMr. Francis's case*
Lord Chanc. But, as to this business (
senate, desiring you (my lords) I hope y«
indulge me to speak a little of ihni t for '
been Tbrmerly a member of that > i
self, I think 1 have some small .
of the manner of tl^ proceed tugs there : j«rsyJ
Mr. Vice Chancellor, tow w as it thai you kmir
their minds in this busioessP
Vice Chanc, My lord, tbe Flouse t^iit
their opinions*
Lord Chanc, How, pray! BT^tiofiit
ViccChanc,The'SonA(( ' Dr.r
the first d»y; and Mr i'> ir«ior,i
Mr. Newton the mathcmniawj protuHHir, I
lord, tlie )MHM>n4] day.
Lotd Ckaac, By whom du tou say tht i
diiv ?
Fiu CAoiic. By Dr. Dmg ult, mj lonl> I
TSSS] for not admUttng Alhan Franeu to n Degree
the Noil- Recent Bouse, and Sir. Norrlft from
telUtf«tit House.
LofdChanc, Well : what laid thcic liro lo
you?
Vice Ckanc, My lord, I do not know tlie very
words, bnt it was to this effect, ilut 1 shoitlli
foHiear adiuittiog Mr. Francis till llie king was
petitioned t
Lord Chttnc, Is that Dr. Smoult in cotirl?
Fire Chanc. Ye«, my lord, be is Here^
[Then he shewed himseU* ]
Lord Chane, Come, Sir, what wis it, 1 pmy
you, that you told the Vice Chancellor f
Dr* Smoutt. I have forcrol, my lord, the
Wt>rt}a, hut il waa to the aarne piir[»ose the Vice
Ch«nt'^llor told you just now, that the House
desired me lo acrjuaiot him tliey were jielition-
hig', that the mandate might he i^callcd.
Lord Chfmc, And pray, Hir, who are yoii,
(hat you should he thoug:ht fit lo repreaenta
whole Hoiifct ? \S Uy thould they choose you
rathrr than any liody else ?
Dr. Smoult, My lord, I suppose because I
mh% onp of the seniors.
Z^/rd Chntn-. One <d' the seniora! If you
come lo that, why waa not the very senior
chosen ?
iJr, Smoutt, I cannot tell, my lord, tltey
came to me.
Vife Chanc. RIy lord, he is one of our pro*
Lard Chanc. Nay, when I ask you que«tions,
they prnmpt you^ and now you nrompt them ;
' hot I mitst tell you, Mr. Vice Chaneellori you
f 9ikc an account of what in done to tlie
uraelf, and not from othera.
ItiC Chanc, My plnce ia at a great dtfitanco
the Non R^ent House, and I cuidd not
lee ^1 ' ' done there.
/ But should you take the sense
©f il I se from one man ?
7 He came and ttdd inef my lord,
the i» ... ^ ..i.> of that opinion, jinil I thought I
liad no reason to rpiestioii what he said.
Lord CHuHC. How loud did he apeak when he
Ml you this ?
V»c€ C^anc, pretty tond, my loi'd.
Lord Chanc* Was it wo bud, that all the
bOBsr mit^^ht hear it ?
Vice Chum-, No, my lord.
Lii/rd Chanc. U|d you send afterwards toen-
"■ ■ ther he haid told you their opinions
f
*lkanc. No, my lord, I eoufeas I did
Lord Chant. But how rame this new way of
S*mg opioiona, are not the proctors um'ally
A t^eii that hrinji; the sense of the* Houia* to
llw V»ce (^hanreilor ?
Vict Chnnc. Not the Non-flfft^nt, my lord,
lA%my are not admitted lulo that House, nor have
at all to do ihtrre.
LordC^anc, Hate you any thing el«« to
offer to my lords?
Dr. l^oak. My lord, if the answer that wo
fmf# ia liie iM day bu not aatislaciory, we
A.D. 1687. [13S4
ilestire to have time atto%i^eit ut to make a far*
ther defence, aotl do it with conn^el.
I^rd Chane, Have you nmhing to say bt-
allies f — Dr. Cook> No, my lord
L(yrd Chanc, ^?o^ you gentlemen? — thfii
withdraw.
After the Vice Chiticellor, and three or four
of the Delegates were |^ne off*, and the crowd
was retiring, Mr, Billrrs^ beinjj;^ a person en-
gaged in carry iu;^ tin the senst; Of the HouteH,
would ba?e informed the court (wlio seemed
under » miUake) more purttcularly of the
senate's proceeilings ; and liow it came to paas
that the usual way of suffrages was impracti <•
cable at that time.
My lorda, 1 beg leave to spesdc
Mr, Bilten.
one word.
Lord Chant, Whoareyoii?
Mr, Btffers. My name is Btllcrs, my lord.
!IIr. Hrtdgman' My lord, he is one of the
crentlemen that signed the paper hi which wa«
the answer,
Mr. Biders. 1 atn one of the pertont, my
lord, that signed the paper in which was Uie
answ«r.
Lord Chanc. Nay, hold Mr* Billern, eifeme
leave to compare your memory with Mr. Vice
Chancellor's a little ; Mr. Vice Chancellor
tells me, Mr. Billera and Dr. Smoult went up
lioth of a ilay ; then comes Mr, Bitlera, and
says, that Dr* Smoult and he went tip two
several days.
IVIr. Bk'iUrt. Mv lord, I eonld not possibly
go up from the ffouse; I do not belong to th€
Regent- House.
lA^d Chanc. Indeefl he said so, Sir; indeed
he did, my lords — Did he not? [To Mr.
Bridgm^m.]
Mr. lirifi^mftn. Yes, my lord,
Mr. Sfanfittpr^ behind the tmhop of Ro-
chester. My lord, under fuvour, my hird
chancellor lii mistaken; the pers«ni Mr* V^ice
Chancellor told y^»ur lordship went up from the
l{egcnt-hou»»c the same day with Dn Smoult,
wan Mr. Norris
Bi<»hop of Rachnltr. My loffl, I think your
lordship forgets; it was Mr. Norris thai went
u{i Irdni the house the same day with Dr.
8moutt,
Li*fd Chanc, Well, Hir, was this that you
would say f
Mr. Bittern, I was only just acauciQtmtif
your hirdkhip what was done, and there wat
no other wtiy —
The thing Mr. Billets imeudcd t- .
wan, that the usuai way of fculFraife ■
l)e praciiKcd ai that time; so ihc oi.ii t^,.,
taken.
Karl of SundrrUfuL We heard that before,
Lord ChtiHC. A\ , Hir, we li*ok liulh what
was <loue, and what wus not done ; ihereiafti
withdraw*
Then all the eomputty rrtirrd, and afler an
hour and s halt ^s »iir « y wera 0atlMl_
tuaguiu, aud the loi^- v^r
1933] 3 JAMES II. Proeeedingi agaiiut Dr. John PeachM^
tbe 8<^iiteDce upon Mr. Vice CbaDcellor Id the
following' manner.
Lord Chunc. Mr. Vice- Chancel lor, the
Lords have oomroandeil roe to tell you, that
tiiey hav<* taken some time to consider your
answer, and are ut last come to a resolution
upon it: my business is to tell you what the
resolution is, Mr. Vice Chancellor. My lords
cousidiT you ha?e l»ecD guilty oi' an act of
great disobedience to the king's commands,
and other crimes and contempts, and such,
that now you appear before us, you have little
to ^ay in excuse of it ; therefore as a mark of
his majesty's and their lordshiim* displeasure,
they ha%e*thought fit to ap|»oint, that you be
lieiiceforth deprived of the office of vice-chan-
cellor of Cambrid«fe. They likewise order,
that you 4I0 not nresnme, at any time hereafter,
to meddl^ witli any of the public Imsiuess
of the university. Likewise, Mr. Vice Chan-
cellor, their lordsliips consider you havea head-
i»hip of a wlletfo ; and because tbe example of
so ill a man may be a pernicious conse<|uence
to all under your ^uvemment, they liave like-
wise thought tit that you be deprived of it,
duriuif his majesty's pleasure : but because
they ha^e a tenderness for the college, for
ivhich ail along you have shewed little regard,
my lords are pleasetl to appoint, that the reve-
uues of your headship shall g(» to the benefit
of the society. 'I'liis is their iordships' plea-
fure, and to this they require your obedience.
There <ut) likewise smitG other gentlemen that
have signed a |uiper here, but my lords expect
thetr alteiidanee when they sit next, which
will U* on Thursilay next ; then we shall take
them into iHinsiilirniion.
Oil Mond:iy, l>r. Peachell wrote b^ an
rsi]ni.o houtilr, v\ho attendetl him, to desire a
c »|i V i»f ilu* siMitonre; hut answer was re-
tur.ii'.). I Ik- xMitonce a< yut uas not committed
touviiiii;;, but vorhal only, and so he could
no! Ii,.\r a co|<\ ; hut ho Vi^peaiiHl the heads
only ys\\\\ iiiis aiivra'iou, that he was sus-
p«vut<sl Ills mastership, and not deprived ;
w h;i*h ^t as ;ui error in the lord chancellor'^ de-
h»%n:ii; n.
The I ut: liming of the next week was em-
|vl.»yi.liu luakiusr inquiries alier the new com-
uti«^„Mi ; liioh.uiaper s:x clerks, and the nding
v«\ 4 Ii rk*; «>tiivv kut'w uoihinir «'f ilf nor any
iv:i;t ot iiH*t»nl r.-uld be diuH'ted to. >lr.
)>. it^;uM ! «l:il o^Mi I Ik re >^:is sueli a thiiivf. but
dh! li.s iUNiiuet I'leiii hovi |o eoine tt) t!ie sight
el" II. r»u»v» th.tl sp »ke l»esl of ihe eoiiiuus-
s .M»i»>. ei';:,d ,lu- ieiiio\al ot the lorti chief
ju-^iiie ol I e knit's beneu lo the ct>inmoii
pi IMS. ,»s a liiinv: that made a new otJmiuivsion
ihvi HUN !«'. »v/ iiyiutf liis iiiic : hut a gen-
i..:'\». »»h.» pu'd-tukd to hoe read it, gave
tlirtu |tii\ai.* inliiuations tiui iheiv weie very
la»i;t* iidJiiuuiN. ;ii)d xri'v ei'^^Jidorahle allera-
liuiiHiii it .11 lUN l>tMl eh:i!ieellt>r*s o\\n house.
The srn.iuu hi on ; lit >»«ivd. tliat my iorti would
S|)rakuiih the |KrM>n himself (hat desiivd to
MN> ill and appi>iiiitd him a time ; the solicitor
Y^m^ «i llie huur, but did uot gain aocew to mxj
[1S9B
lord, and so they could not see it at all, for il
was Wednesday night, or Thursday UMMrning.
Thurday, May 12/ A, 1688.
Council Chamber. Commissioners present as
before. The Delmtes appear with Dr.
Peachell.
Lord Chunc. The last time you appeared
here before us, my lords thought fit to set t
mark of their just displeasure upou the vice*
chancellor. Gentlemen, you cannot but be
sensible, and so must all the world, how per-
nicious and obstinate the university has sheva
themselves in refusing the king's comiuandi,
and such commauds, I must lell you, that
ought to be obeyed.
There was a time you may remember in-
stances, if you do not, I'll turn you to one ia
the year 1607, when tbe letters were so &r
from being disputed, that they paased for a law
among you, and do this day stand reconM
among the solemn acts, and puhUc statutes of
the university. Gentlemen, my lords consider
there is a dinerence between tlie vice chan-
cellor's case and yours, and tlierelbre did not
concluch; vou, wlio represent the eenate, wUi
him, but have required your attendance at tlM
time: they impute tbe miscarriage ef tbe body
to the head disease chiefly; though aeitbcff
are you wiiliout fault, for beiag so much u
uneasy under the king's commands. Gemls-
roen, I must tell jrou, my lord* aiMlentasd
vei^ well the sly insinuations in your paocr,
and have cooimanded me to tell you, thatuey
know upon what grounds they go, ihougb tbey
do not think fit to descend to particulars: tbej
know too how far that authority extends, not
only to you of the university, Imt to the ee«
cieties within this kingdoiix. Gentlemen, ysai
best course will lie by a ready obedience to his
majesty's command for the future, aud by giv-
ing a good example to others, to^iuake aaMods
for the ill example that baa been givea yey.
Therefore 1 shall say to you what the scripCnrc
says, and rather because moat of you are di-
vines ; Go your way, and sin no more, lertt
worsc> thing come unto you.
[The late king's letters, mentioned by my
lord chancellor, anno 1667, coacem tbe rege-
lating some of the public exercises in the api-
versitv ; the meaning whereof is this : Tbe
king IS their visitor, and whenever there is say
thing belonging to the local statutes and cse-
loms which Uicy think ought to be altered, or
any abuse which should ht rectifieil and re-
dressed, their way is to beg tbe king's rsytl
injunction in the case, which they keep H|iee
recoi-d, and obey as a statute. How good ei
argument is this against them, Un not obejisg
a private mandate, contrary to four known M«s
of the land ; and how parallel the case, is caqr
discerned.]
As they were drawiag off, be calM tbeffl
again, anil said,
lari Ctow. HoUp gftiMHM, I Imiir
9
fc
1S37J Jor not admitting TtfSSn rretncis to a Di'gree^ A. I). 1687-
souiirthiog m«re to say to you. My iortk re-
^UAre, aii a re»iiinKiny **r )ijur obciiiencft tlial
you, who r*^pri?f»fia ilic senate, ^liimld lake
cmt^ lliey have ihf unifeniiy ^Ututes brought
to litt beKorf! Uitnit here*
Dr. Cook, My Jord, we do no looger refire-
lent the senate ; oitr Uelec^atluEi if ilcteriiiiHeU
ii^itb the Vice Cbaacdtur^a dcnmaLioiif my
Unl . . *
Lorri Chanc. W^U, if your onmmi^ion l*e
exmrtMl^ we will give you n new one ; we ore
able lo give you a commiii^ioti : VVc* sup^inse
you hud stifHeient authority Ibr a pperrrini; herv.
Dr. Cook. Doej* your lorili^hip ex|Hfel tliat
we should attem! with the statutes oursclres?
Lord Chunc. No, no, sdoxI them up by a
projit'r officer: 'V ou are only to carry a mes-
sage Jroin U!> to the senate, am) tell tlieui what
we estpect.
Dr. Ei«cft»rd. Tn what lime <loeii your lord-
■ihineX|K^ctlhem ?
Lfirri Cftfmc, In a conremelit time; we will
uiit li4» \on nji; but if y<iu, he tardy, my lordu
\% ill take rare to (quicken you by an ttitioiatinu ;
I tnean only a copy, uol original fiatules.
You are nuw discbary^ed JVom any farther at-
tenilanre here.
The dele*^ates, upon tbe Vice Chance 11 or*s
depriiation, hein^ no longer C0|mljie of actini^
AjS puUic |}er!son!<, and conhequcutly of denvinj^
an} dl consequence upon the ht»dy they have
I'cpre.sealetl, thought they mii^lit venture their
own pei'WJns more licdtlly : Tlierefure, in order
to satiiify the worlds they were ini^j^hty ilei,irous
10 hiing- about a seeond heaiin|^ of the sanu'
points, which, before the Vice Chancellor^&
henteiK^e, tliey were not eulfered to sjieak to,
and which, when the Vice Cbancelbr was ask-
ing, they bad not an optformnity of answering
•o very particular as tliey could have wished,
cH)ntinius^ themsehes to such questtonn, all tbe
wliile, aifS did not concern tbe Vjce Chancellor
solely and (ifrsonuhy-, but afTecicd the wholv
senate jiiinily wiih hnu ; Which onler they
iiad likewise ohacived in interposing at tlie
trial. This onsvier thej" hail ready to ojfer in
wriiinof, if that conid be admitted -, but if not,
resolvtd to ar«;ue it by word of mouth : The
tfubftttance of ii may ht; re<luced to hvo beads:
First. The hnsinesBof adnniting' others, snd
particularly Dr. Ligbtfuot^ without uuths. Aa
to Lj^httoot^s case, \\ bat they iittendeil to bare
urge** in court, yc>u have seen aheady ; but as.
ta Vtthei ff,
1. * Tliut Peerg are by tbe very act af par-
*Haaient ^ Eliz. tjccinpi«'d from the oath.
2. ♦ That A^\ j^ucb as tlic tniversity calU
* aobli/tiien, hove lime out of mitid enjoy etl tbe
* privilcji^fe of Peers.
5. * That under that quality tbey never ad-
* H^it any wilbnut uatbs.
4, * That if at any iin»e,tipon the entertain-
* jng- of a piiacc^ or any iiick solemnity, any
* onehasnhp[>Lil out in lUe crowd, which tlicy
* ara uot coni.c»ciu« of, thia ii to be imputed to
* hurry and iuadverteiicy, anil cannot be pa*
[1338
rallel to this caxe, where the senate acte^J
vinilb leitiureand deliberation,
.*). * That even these de|yjrees^ i*^if en to noble*
men and slranj^ers, are bonorury aud complin
menlaLaud so diiierent from what the statute |
callii dej^ees of learnini:* and men use, exer*
eise and ntake a gain ot Ibeir profe^ion.
6. * That suppoifin^ir never so many to ba '
admiUed without ouths, this tbey acknow*
ledged to be irresrular, and the hreueh of • ;
law in one can be uo precedent for anoiber to/
iollow.
7 * * That however, they are very fully an^"]
]iarlicularly assured, no* man was ever ad-^
nutved, wlio positively refused the oatb^J
which this Mr. Francis did,
1* * That every man who is a member of 1
thut, or any other f^emite, hath stub a rig^b| j
to nropoiie, ttehale, and advise, as occa&ioo '
shall require^ and protest against any ,irre*
gfular proceedings in it.
^, * Titat in a matter contrary to tbe lawSp
and so highly concerning ibeir Uuiversit]^ i
and relij^ion, ^ the opening such u gap for
the men of any persuasion to become mem*
bers of their body and senate (which everjf
resident Master of Art is), it had been th#
greatest iutidehty and neghgence to have sal
still.
S. * That their suffrage not being asked by
the common way, ought not to have been a
bar, because every mau in his mutriculatioo
oath, oldi^cth himself to be agisting to the
Cluuicellcir anil Vice Chanctlbir, and to rfe*
fend the stale, bunour, and dignity of tbo
Uuivcrailv, accotdiug to his power and capa-
city ; and this lo do '■ 8uflragio et ConciliO|
* rogatUK el non rogatus,*
4. * That representing the whole Honsea
opinions by a lew, is a practice common td
nil numerous congregations, and usual in this,
for Any single man, voluntarily to go and
addrejis the Vice Chancellor in hehalf of bia
w hole college, or o I her wise.
5. 'That the late king commanded, by hif
royal letters, that all address to the Vict
Chancellor should \*e made in the most quiet«
decent, and respectful manner: And this way
was thought more conloriuable to that com*
mund, than the hurry of every man applying
himself personally .
6. * To gi*e the better reputation to tht
thing, and make it unexceptionable, the p«i^
sons sient lron\ the senate to tbe Vice Chan*
cellor, were all men cither of piib'ic character
in the k»odyi or the sentors of their Housefi
or Kome way eminently known iu the tni-
versity ; but they bung admitted, nn yoa
have seen, on lliurfiduy, there w.is uu op-
portunity at uM ut oliering a dispute/
Attimadvniiom on WedHtiday^ April 37.
This day tbe ptea was given in, and the only
thing needful t*» Ik' remarked, is, the usuid
way of demurring to the court's 'y«vi*Ss«Nxs
which is couimonlv either the **^^'^ "* ^\^^^^
plea, ia such ca*ca: Put tjie d^Le««^*^^*^***=^
^
mm
I
1339]
f JAMES IL Proceedings against Mr, Samuel JtJinson, t^SiO
tipon th<>n»eUes at obliged not only to defend
their cause, but to satisfy tbe world ; therefore
they were desirous that all peo|)le should be
MtisBed upon what reasons they acted ; and to
this purpose they first insisted upon them,
whicn they did not at all doubt but it would be
patiently heard ; whereas, if the court's juris-
diction had come first, that would, in all pro-
bability, have occasioned the whole plea to be
itifled and over-ruled.
Saturday^ May 14, 1687.
Mr. Atterburv came to Cambridge^ with two
orders under the commissioners seal ; one to
ih^ proctors to proceed in tlie choice of a new
Vice Chancellor, and the other to Magdalen-
GoUege fellows : To each of which was annex-
ed a copy of the sentence to be fixed upon
the school doors, and Magdalen college gates :
And on Thursday, May 17th, Dr. iE^&rson,
inaster of Emanuel college, succeeded in the
office of Vice C h ancellor.
A Copy of Dr, Peachell's Sentence, as it was
Jixtd on the Public School Doors^ and
Magdalen Collei^e Gates,
By his Majesty's Commissioners for Ecclesi-
astical Caus^es, and the Visitation of the
University, and of every Collegiate and
Cathedral Churches, Colleges, Grammar
Schools, Hospitals^ and other the like In-
corporations, or Foundations, or Societies.
* Whereas John Peachell, Doctor of Divi-
' nity. Vice Chancellor of Cambridge, master
^ of Magdalen collegfe, in tbe said Uoiversity,
' has been convened before as, for his disobe*
> dience to bis majesty's royal letters maoda-
> tory, and other hb contempts ; and tbe said
' Dr. John Peachell having been fully heard
' thereupon, we have thoogbt fit, afler matnre
' consideration of the matter, to dedmre, de-
' cree and pronounce : That the said Dr. Jobo
' Peachell shall, for the said disobedienoe and
' contempts, be deprived from being Vice
' Chancellor of the said Usiversity, and froa
all power of acting in the same : And also,
' that he be suspended * ab Officio et Beoefido'
' of his Mastership of the said college, duriag
^ his nuuesty's pleasure ; and accordingfy we
' do by these presents deprive him, the said l^i
^ John Peachell, from being Vice Cbanodlor
' of the said University, andfrom all power «f
'acting in the same. And we also suspend
' him ' ab Officio et Beneficio' of his master*
' ship of the said college, peremptorily admo-
' nisning and requiring: him hereby, to abstain
' from the function of master of the said ool-
( lege, duriopf the said suspension, under paii
' of deprivation from his mastership. And wt
* also farther order and decree, that tbe protts
< and perquisites belonging to his said master-
^ ship, shall, during the same saspemioo, be
' applied to the use and benefit of tne fl«id col-
' lege.
< Given under our seal, May 7, 1687.'
S52. The Proceedings against Mr. Samuel Johnson,* who was
tried at the King's Bench Bar, Westminster, for High Misde-
meanors (and found guilty of writing and publishing two
seditious and scandalous Libels against the Government):
2 James II. a. d. 168G.
A. D.
Samuel JOIINSON havingr been arraigrned
upon an Information for high misdemeanuurs,
in writings, printing and publishing two scan-
dalous and seditious libels, ^c. uud thereto
pleading not guilty, was, by a rule of court,
brought again to the court of King's- Bench,
Wesfminsicr, on Monday, June the 21st, in
order to take his trial : when a jury of knights
* * I find the following ftassages couceruing
this Case in Narcissus Luttrell's * Brief Histo-
rical Relation, &c.' in the Library of All Souls'
College, Oxford :
«* Nov. 16, 1686. Saraucl Johnson, Clerk,
couTictcd upon an information of writing and
publishing two libels, was this day brought to
the Court of King's- Bench, where he offered
Bometliing in arrt>st of judgment? but tbe
Court over-ruled it, and the Chief Justice told
liim ho blasphemously wrested scripture; so
the. Court pronounced judgment on bim, to
ttand Ibrice in the pilior^i paj a fine of 600
and gentlemen of the county of Surrey beiD]j
sworn, the information was read ; the sub-
stance of which was, That he, tlie prisoner,
had, in the parish of St. George's, South wark,
on the 25th of May, in the second year of bit
majesty's reign, maliciously and designedly
published two |iernicious, scandalous and se-
ditious libels, to raise and stir up sedition and
marks, and to be whipped from Newgate to
Tyburn.
«' Feb. 1690. The bishop of Durham bar-
ing been one of the Cominis.siont>rs that de-
graded Mr. Samuel Johnson, author of Julian,
out of a sense of that action and the barbarity
thereof, by cousequenco and his puuishmeot,
has made him a present of 200/. promised V»
allow biro 100/. per ann. for three vemrs, and
to give him a good living that shall fint fall."
See,too,3Keiiiiett,p.460,9dfdiU iBafpb,
9S6, 9S7»
1341 J
for High Mudemeanort,
A, D. 16S6.
[ISIS
rrbellioi) in hia majesty's Uegpe snUjecU, 9ce.
The title of m\e tieiiig^, * Ad Humble njid
* Hriirty Ailflrcsts lo all llie Enj^lisli Protestants
' m iUU (»rcsent Army.* Which is as folloMs ;
An ITnmMe and nearty Address to ftll the
Eukflish Pn>test4ints in this present Army.
Gentlemen ; Nejrt to the doty which we
«iwe to t«od| ivhicli ought to be the prific){>al
care of nieo, of your profession especially,
became you carry your lires in your hands,
find ulAen look death in the face : the second
tbiiix^ ihat dcjiervx'a your consideration, is the
•ervice oi ynur native country, wherein you
drew your lirst breath, aud breathed a free
Enghsii aii\ Now 1 would desire vou to consi-
der, how well you comjily with tiiese two main
fiointv, by enijii^ui^ in this present service.
Is it in the name of God, and for his service,
th*t you have joined yourselves vvitb Papists;
who will indet-d %ht' for the maiss-book, but
bum ihebibte: and utio seek lo extirjpate the
ProlcftUini relisfion with your swords, because
they cannot do it with their own? And will
you be atdini:; and aiuitstlni; to set up maas-
hoo^es, to erect that Popish kingdom of dark-
fiesit and desolation amongst us, and to train
up itl) aur cbiklren in Popery ? How can you
do the»»e thing's, and yet call yourscln^ Pro-
testants ?
And then what service can be done yonr
country by bfing' under the coniinaT;d of
French and In^ih papists, and by bringing llie
nation under ti foreiiju yoke? VVill juu hdp
iheni to ntake lorrihle entry intti the houses
f>f your countrymen, under the name of
quartering^, dirertly contrary to Ma^ta Charta*
and the Petitmn of Right ;* Will you be aiding
nnd aMMsttfiir m all the murders and outrages
which they shall commit by their void coin-
mimionM? Which were declared illegal, and
•nufficiently blast«?d by both lionseti of Parlia-
mefit (if there had been any need of it), lor it
waa very well known before, that a Papist
cmiDot have a commission, but by the la^v is
litlerly dis^ibled and disarmed. Will you ^x-
^etitingi- your birth-right of EnglisU laws and
■itersi iirtinl, or club-|{i%v - and help to
^Hti eni, oul^ to he eaten b^t your^
Hi^e^l ii J know yon well, as you are Eng^-
I ]iihmen» you hate and scorn these things.
A^i'i *' 'Ttfbre be not unrquolly yoked with
^ and blciocly Papists : *■ be TRJtant for
• :;.._ -iili^ ooil sliru \'Mir8el?r!S men.
I Thcj»nm«: «'*' i^ are likewise humbly
;, oftcred to ull i i _ hsh seamen, who have
j httta tii*i bulwark of this nation ti£rainsi iVjiery
and ttbivery, ever since eighty -cighL^
* In ihe 2nd ?olome of State Tractu* Vc»
hich Wrts pHh!i%bid rn lo*>2, is inserlod ulior
ibiN Addk'C'S3<, the toil tnvint4' itiUcle;
CTCRAi. KLA!*tJN« FOR THE Es r
* Of A SlAMJlNn AtiHY, AND i <i
Till: Mti.iTrA, Br 51 u. H. JoiiH«i>?t.
And the other, viz. * The opinion w tbU, ihaV
^ resistance may be used, in cose our religion'
* and Hghte should be invaded ;' ** Tt-ndiug to
lieutenants, and the whole miiitia, that is to
say, the lords, gentlemen, <uid freeholders of
England, are not fit to be trusted with their'
own taws, lives, 1 liberties, aud estates, and*
therefore outfit to have gaardians aud keepers
u&!iigneil to tliem. t
'* 2. Because mercenary soldiers, who fight.
for 12 jience a day, will light better, as having
more to lose than either the nobihty or gentry,
"3. Because there are no Irish Papists in
the nulitia, who are certainly the beat suldiers
in the world, for ihey have alain men, women,
and children, by huutireds of thousands atonce^*
** 4. Because the dragoouers have niadt
more converts than all the bishops and clergy <
of France*
'* 5. The parliament ought to establish one^
stamling army at the least, because indeeil
there will be need of two, that one of them^
may defend the people from tlie other,
**• 6. Because it is a thousand pities that m
brave Popish army should be a tint.
*^ T, Unless tt be established by act of |mf«
liament, the justices of peace will be forced to
suppress it in their own defrnce ; fur they will
be loth to forfeit lOO/, every dtiy they rise^
out of compliment to a Popish rout. 13 U.
4j c. T, 2 IL 5,c, !'.,
*^ Because a Popish army is a nullity. For
oil Papists are utterly disabled (and punishable
besides) from bearing any office in c^uip^ troop,
band, or cotnpany of soldiei^^ uud are so tar
disarmed by law, thai they cannot wear a sword,
so much as in their defence, without the al-
liiti ance of lour justices of the peace of thc-
county : And then upon a march they will be
perfectly ioclianted, for th^y are not able io
stir above five mtle^ from their own dwellingr
house. 3 Jac. 5 sect. 8. 27 1 28, 29. 35 Hlis*
'A3 Jac. 6. stfct. 7.
*^ 9. Because persons utterly di'^ablcd hy
law are utterly uii«tiU)onsed \ and therefore
the void cotnmisMons of killing and slaying in
ihe hands of Papists, can only enable them to
massacre and murder **
In the same Collection (and in others) I find
the* tuUowing article aiM^nbed to Mr. Sumuel
Johnson, But whether the opinion mentioned
in the nt'xt parogruph of the text \*e exiracted
from Ibis or froni some other of Johnson's
writiiigi 1 know not. 1 do not possesa hia
works.
Of Magiitracy^
** 1. Rclnti'm is nothing else but that state of-
mutimt r*'!*pc€t and revt* rc^nce, which one thing
or p*'rs<in \ms lu Mnolhcr, *
•* i. Such are \Ue relations of father and
mm, hu<«hrtnd and wife, ma!»t« r and servanti .
' iiia$ri»ii itt^ ^od i»uf>|cct,
' ** S The reliiiion of father, hushand ainl
, ma«ter, iirfri*«i11v dtvtinci anddilfifrcnt ; that la,
out of tbrin i^ nol iij«^ other; lor he may ke^
Becaunc thu lord« hiiutouantu, deputy ^ any one of these^ ^Uv is oon« of the rest,
1343] I JAMES IL Proceedings agabut Mr. Samuel Johnson^ [1344
counsel, opened to tbo jury, at to the nature
and circumfitauces, together with the evil oon-
seqaences that might attend looh bold and
dangerous attempts: which being rendered
** 17. That public office and emptoynient m
the foundation of the relation of king and sub-
ject, as many other relations are likewise
founded upon other functions and administra-
tions, such as guardian and irardy &c,
'' 18. The offioe of a king is set down it
lar^e in the 17 chap, of ttie Lawa of kiar
Edward the Confessor, to which the anooeeih
ing kiofifs haTe been sworn at their ooronatioB :
And it IS affirmed in the prramblea of ihesla-
tntes of * Marlbridge, and the statutes of
Quo Warranto, made at f Gbneester, That ibe
calling of pariiamtnts to make laws lor the
better estate of the realm, and the mora foH
administration of justice, belongeth to tbe
office of a kin^. But the fullest accnmit of it
in few words, is in chancellor Fortescue, chap.
13, which passage is quoted in Calvin's case.
Coke 7, Rei>. ful. 5. « Ad Tutelam namqse
' legis Subditorum, ac eonim Corporum, el
* braorum Rex hujusmodi erectus est, et id
* banc potestatera a populo effluxam ipse habec,
' quo, ei non licet potestate alia, auo popah
* Dominoii.' For such a king (that is ot ereiy
political kingdom, as this is) is made andor-
ilaiued for the defence or guardianship of tbe
law of his subjects, and of their bodies sod
goods, whereunto he receiveth power of bie
people, so that he cannot govern bis people by
any other power.
Corollary 1. A bargain ia a bargain.
S. A Popish guardian of ProtesUnt laws if
such an inconju^ruity, and he is as unfit for tbit
office, as Antichrist is to he Christ's vicar.
" Chap. 11,-^0/ Prerogatives bj/ Divine RighL
*^ 1. Government is not matter of re^elalioo ;
if it were, then those nations that wauted scrip-
turC) must have l>een without govemnieot;
whereas scripture itself says, That govemuMit
is, The ordmaoce of man, and of human ex-
traction. And kin^ Charlts tbe first says, of
this trovernment in particular, That it wee
moulded by the wisdom and experience of tbe
people. Aosw. to 19 Prop.
** 2. Alljust governments are highly beneficial
to mankind, and are of God, the author of iH
(ifoo4l ; they are liis ordinances and iostitutioMi
koiii. 13. 1. 2.
*'' S. Plowing and sowing, and the whole be-
siness of prt^parinir lireu lcx>rn, is abaolutrlr
necessary to the subsistence of mankind ; Tbif
also coQictb forth from the LiHrd of Hosts, wbe
is wondeiful in c;ounsel, and excellent in work-
ing, Isa. 'iH from 23. to 29th verse.
** 4. Wisdom saith, counsel is mine, amlsouiM)
wisdom ; 1 am understanding, I have
* Prout Regalis Officii exposcit utilitas.
f Ficome le profit de office Demaunde.
The kingly or regal offioe of this remla. 1. ao*
Mar. Sess. 3. Cap, 1.
** withdraw them from their duty and alle-
** gianee, and to excite and stir up the soldiers,
<*GKS. to mutiny and rebellion, &c." After
this, the information was, by the. king's
** 4. This distinction proceeds from the dif-
ferent reasons, upon which these relations are
fbttoded.
** 5. The reaaon or foundation, from whence
arises the relation of a father, is from having
begotten his oon, who may as properly caU
every old man he meets his father, as any
other person whatsoever, excepting him only
who begat him.
<> 6. The relation of an husband and wife
is founded in wedlock, whereby they mutually
consent to become one flesh.
•'7. The relation of a master is founded in
that right and title which he has to the pos-
aession, or service, of his slave or servant.
" 8. In these relations, tbe name of father,
husband^ and master, imply sovereignty and
anperiority, which varies notwithstanding, and
is more or leas absolute according to the foun-
dation of these several relations.
<* 9. Tbe superiority of a father is founder]
in that power, priority and dignity of nature,
which a cause hath over its effect.
** it). The distance is not so great in wed-
lock, but the superiority of the husband over
tbe wife, ia like that of the right hand over the
left in the same body.
'Ml. The enperiorit^ of a master, is an ab-
solute dominion over his slave, a limited and
eonditionate command over his servant.
" 12. The titles of Pezzer Patria, and Spon-
iut Rfgnij father of the countiy, and husband
of the realm, are metaphors and improper
speeches : For no prince ever begat a wh(de
country of subjects ; nor can a kingdom more
properly be said to be mariied, than the city
of Venice is to the Adriatiqiie Gulpli.
'* 13. And to shew further, that magfistracy
is not paternal authority, nor monarchy found-
ed in fatherhood ; it is undeniably plain, that
a son may be the natural soverciorn lord of his
own father, as Henry 2d hod been of Jef-
fery Plantagenet, if he had l>cen an English •
man ; which, they say, Henry 7 did not love
to think of, when his sons gi*e\v up to years
And this case alone is an eternal confutation of
the patriarchate.
" 14. Neither is magistracy a martiaf power,
for tlie hnsbaod may he the obedient stiiiicct of
his own wife, as Philip was of queen Mary.
*' 15. Nor is itthatilominion which anisksler
has over Ins slave, for then a prince iniLrlit law-
fully sell all his yuhjects, like so many head <(f
cattle, and make money of his whole stock
whenever he pleases, as a patron of Algici-s
does.
** 16. Neither is the relation of prince and sub-
ject the same with that of a master and hired
servant, for he does not hire then, but, as 8t.
Paul saith, * They pay him t.**il>ute,' in con-
aideration of his continual attendance and em-
ployment for the public good.
latS]
Jbr ffigh MisdffjKa
A-D. 1686.
[1346,
|fln*m U' ^n»l pYnf(!\^. an U\ ilip particufnrs men- An^ Isf, Mr l^rLufm i\\ >!>*• Tlirpp Bin-hr »
■ in Southvvark,
That coming fto; i
tile prufODer, and abont ii fortnight before \
liin ■•^^ ^vliepewitli the
Sris ' * \ ^ ^. proceeded to cull
idr wnnessefi tu pmye the fact.
■trcntjtli r By tiie kingv reign^ atirf princes t!e-
cr«j justice : By me princes nile^ and nobles,
eren all tbe jutffifes of l!tc eftiil^ Tniv^. 8. V*.
•• 5. The projthet, speaking* of the plowman,
mttb. Hi* God doth instrucl him to di«<arel40Q,
and lioth lencli him, Isa* 28, 2i3.
«* 6. Scripture neither ^ives nor t«ke« away
menu eivil riy^hts, hut leaver them as it found
Hfenif ami (no our Parlour anidoi himielf) is no
divider of inheritances.
'* r. Civil authority ia a civil rijrhf *
•• 8, Tlie law of Bnj^land give* the kiug^ his
tjtie to tf>e crown. F*or^ \f here tn it said in
•eripturc, That such a i»erson or family by
namf" nhnM rnjny it ? And the same law of
Enr -■ unide him kint^^ has rotide
hin^ 4 to the English lawity and
" P, The kinj^ of England hib no more right
to net up a French government, than the
French king htt« to be king of England, wliich
it none i\X nil
*' 10. Render unto Oaisar the Ihings Mr Inch
ire Ctesar^M ; neither makes a Ciesar, nor telli
who Cii^ar ts, iwv what belongf to bim ; but
only requires men to be juvt, in giving bim
those sMupiised rigbtaj, which the laws have de»
tennioed to be hiK.
•* 1 1 . The iK^ripture suppose* property, when
it forbids JUealing ; it supposes menu lands to
bt' af ready Ifntted and bounded, when it forbids
romuvinif the ancient laJid markf : And aa it
it impoissible tor any man to prove what estate
be has by scripture, or to ftud a terrier of his
landt tb^re ; so it is a vain thing to look for
atatut^^ of prerogative in scripture.
•» 11*. If Miabi»al Hamelecb, the manner of
iHe king, 1 S^m, 8, It be a sitaiule of pre-
rogafive, an»l prove nil tbo»c [larticular^i to be
the fighl of the king» then Minhpat Uacco-
hanim the prie»;l8 custom of »«iicritegion^ ra-
pine, chap. 1y 3, proves I but to be the rii^bt of
Uie pric^tn, the same wood being used in both
plaeei.
♦• 13. It is the resolution of all the judges of
;land, that even the known and uudnubred
it^tivi'-* of the Jewish kings, dti not b^lmig
la ill. tud that it \% an abstird and im-
pndr h» affirm thry do. Coke 11 Rep.
p. <rj. Mitb. 5. Jac. * Note upon Sandiiy the
•tenth of Novcmlier, in this sanve term, the
"Utplaint uiadt! to bim by Bnn-
Jiop of Canterbury, coftcernfng
vvaa informed, that when quc!^-
dts of what matters the cede*
.-<;* have cogui?:^ *^rrujKm
ui of the %iii\n rnin^
iy other thiu^ j -..
Lute 1 Eli?. Co
Ml Iti nii\' otii.
•p.
< tKM,
• tb.
Myti
• "f
• lb
•kin;, - I
* and thai the judges are but the *lele*:ate» of ]
* the king, and ihut the king may take what
' causes he iiball tdease to determine from th^
'determination or the judges, and m;«v dpter-
* mine tliem him<*elf. And t' ' * V .»
* said, That ibis was clear in l
' Buch nnibonty bHongs to the mhi:, hv ihq
* word ot God in licripHtret To \Uiicb It wai
' answertd by me, in the " -^ • -, and wisli
* the clear conNent of uU : . of Eng*
* land, and barons of ibe L , . r, that the
* king in bis own jKTwOn cmmot iidjtulge any
* case, either criminal, as treivsim, fr'loijy» ^,
* but this ougbi lo be delemuntd and adjurtcd
* in some court of juatice, accordlnt; to tlu b^
* and custom of England. Arnl
' ments are grrtn, * ldeoc*>U!i"ni r
** curiam,* so that the court giiL;> tUt jtiil^;*
*ment: And ft was greatly marvelled/ T hut
Mbe .1 ' '' ' |i dm-st inform the kmg, Ihtit
* sucfj powiT and authority, as ii
* aforrhHiu, bciouged lo the king, by the word
•of God.'
** CukpAll.—O/OOcdknir.
" 1. No msn has any tnore civil authority
than whot the law of' the land has vented itt
lijm ; Nor is he one of Ht. PauVg higher t
powers any farther, or to any other puriK>set
than the law has tm powered him.
** 3. An ti9urped, illegal and arbitrary power
is so far from being the ordinance of God,
that it is not the ordinance of man.
**3. Whoever opposes an usurped, iltegnf,
and arbitrary power docs not oppo^ the or*
dinanceof God, but the violfitiou of that or-
dinance.
** 4. The 19 of the Romans commands sub**
jection to our temporal gorernori, berausie theif
office and employment is fur the public wel-
fare. For he is the minister of God to thee (or
good,
** 5« Tlie 13 of the Hebrews commands obe-
di^mce to spiritual rulers, Becatise they watcli
fur your »oul«.
*'*Bnt Ibe 1.^ of the fft-bj'cw^ did not oblfge
the tnartyrs and cohttsaoris in 'pufu Mary**
time, to obey «ucb blosved bishops as Bonner
and the beast of Rome, \iho were the perfect
reverse of SI, PauVs spiritwal rulers, and
whoae practice Tia» muniering of atmU aocf
bodieni, according to the true chT.i f
Popery which was given it by tb'
who compiled tbf ' ' for ib< uuw ni
November, but nl was wiser
than they, -n ' nuud it out.
*'The p< run thus: To that
v law, the
jy a I person;
is reb<
tice is
4ll
iMcprnc*
' ) mill ur
IS47] f JAMES IL Proceedings agaimt Mr* Samuel Johmtm,
Whitsuntide lastt fSiscourBing with hitn the
■ecoud of these libels was rneotioned i and
iooti utter be sent hitn a box with some reamt
of them in it, to be dispersed, and gare him
notice that he bad a secotid pat>er in the pre»;
and withal, a caution not to publish iUose he
had sent hefare, till he had recet?ed that which
proved to l»e the fonuer libel licfore-iDeutiuned.
root them out of the confines of this king«
*^ 7. All the judf3:€s of England are bound
by their oath, and by the duty of their place,
to disobey all wnts, letters, or commands which
arc? broufi^bt ta tliem, either under tbe little seal,
or iiiiik r ihe great seal, to hinder or delay com*
11)011 riicl^t. Are the jud^e;^ all fiound in an
oath, and by their places, to break the 13 of
Ibe Uouians?
•* 8 Tlie enffa^re^^iitof the lords attending
upon the king at York, June 1:1, 164'J, which
was subitcribed by the lord keeper, and lliirty
nine pt^rs, besides the lord chief-ju&lice
Banks, and several others of the privy-couu-
dl, wa% in these words :
** We do en^ajre ourselves not to obey any
orders or comuiandawbatsotver, not warranted
bv the known laws of ihe land. Was this
liVf^wisc an association against the 15 of the
Romsin^?
'* 9 A constable represents the kin^s person,
and in the execution of hi:^ ofbce is within the
purview^ oi'tbe 13 of the Romans, as all men
g-rant ; but in casie he so far pervert his oftic4?,
as to break the iieace, and commit murder, bur-
glary, or robbery on the hicrhway, be may,
and ought to be resisted, (p^^ what arch-
deacon Pflk'y says of Divine Itight.]
** 10. The law of the land is th« best ejfpo-
aitor of the 13 of the Romans, here, and
in Poland, the law of tlie land tijere.
*• II, The 13 of the Romans, is received for
•cripture in Pol a ml ^ and yet this is expressed
in the coronation oath in tliat country ; * Unod
* si sacra men Uim nieum Fiolavero, incolc^
* regoi nullam nobis o bed ienti am pnestare tene-
' buntur.' And if I shall violate my oath, the
inhabitants of the realm shall not be bound to
yield me any obedience,
** 13. The law of ibe land, according to Brac>
ton, is the hiefhest of all the higher poweri
mentioned in^tbls text; for it is superior to the
king^f and made him king^, (Lib. S, cap. 26,
Rex habet superiorum Deum, item le^m, per
quam factus est rex, item curiam suam, viz.
comites et barones) and therefore by tbi« text
we ought to be subject to it in the tirst place.
And according to MeUncthon, it is the ordi-
nance of Gorl, to which the hii^lier powers
tlieniKelves uu^ht to be subject. VoL 3, iu his
commentary on the fifili verse, (Whei^efore ye |
must nceth be subject, not only for wrath, but
also for rou»cieuce sake.) He hath these
worils, *"' Ne<;uu vero bactantuin pertinent ad '
aubditoa, sed etiatu ad fMa'^t«rtr!itui!i, tpii ctim !
Auut tyrauni, non hn
IMi^uam sedilio!fi,
i
[1348;
And further, that about six or eight moathi I
before that, the prisoner had sent him otbrr
libels to i]iH|)erse : and hmn^ shewed the hbeli
mentiotied in the information, be deposed, tbe^
were the same that had been aent him. Hti I
ttum likewise gave evidence, Thai he had re*
cciveil a box nailed up, but could give no ac«
count of what was in it, as to particulan.
fit rea, cjuia nooobediuntordinatloni Dei, idi
1egibu!i, quibui debent parere. idco comiiii»j
nationcs hie positte etiam ad ipaos peniiwatl
Jtaque hnjus mandati severitaa moveat oiiui€i| (
ne violationem nolitici status puteot earn left |
peccatum.'' Neither doth this place i
subjects only, but also the magistrates them* I
selves, who when they turn tyrants, do no leu I
overthrow the ordinance of God than the aedi*!
tious; and therefore their conacienciet too art]
guilty } fur not obeying the ordinance of God| I
that is, the laws which they ou^ht to obey ; lO .
that the threatening^ in tW\% place do alao ba*
long lo them; wherefore let the severity ofi
ibis command deter all men from thinking tht |
violation of the political constitution to m •
light sin.
** CaroUary. To destroy th« law and legit i
constitutions, which is the ordinsnce of Gad, I
by fuUe anil arbitrary eipositions of this leit|J
is a greater sin than to destroy it by tiiy otbcf |
melius ; for it is seething the kid in hit M^ ]
t!ier's milk.
Chap. lV.--tyLdWf.
" 1. There is no natural obligation, w he
one man is bound to yield obedictioe toanothf^l
but what ii founded m paternal or patriardMt]
authority.
^*- 3. All the subjects of a patriarchal i
are princes of the blood.
*' 3. All tlie people of England treQOt|nincctl
of the blood.
^M. No man who b naturally frte i
bound, but by bis own act and deed.
*^ S, Public laws are made by public coQatotiJ
and they there fore bind every man, bee
every man's consent is involved in them.
^* 6. Nothing but the same authority anAl
consent which made tite laws, can repeal, %\xjxA
or explain them.
** 7. To judge and determine eauseii
law, without law, or where the law b d
and uncertain, is to assume legislative powsT,
■^* t). Power assumed, without a tnati's (
sent, cannot bind him as his own act Mkd «
^* 9. The law of the land b d] of « j
the same authority which made onfi L«f|j
all the restt and intended to have llittin \
partially executed^
^< 10. Law ononeside»btlithftck*«itli|
justice.
'Ml. The best things, when CMiuylrJ, i
the worst ; and the wild juati<}e id a «tate
nature, is much more deairahte tlitii law i
I. ami over*raUd, into builitdt tod
1349]
Jar High Miidemeanoru
!6S6.
[issa,
gairec
^im WkUnetf^ somciime ■ervontto the pri-
ioner, toeing* swam, gave evidenL-et That by
ber tnasler's or mistress's direction, slie Has
notd^rtain which, ihe took a porter, aud cauaed
him to carry a box, wherein one of the libejs
ixietuionedf viz. ihe second, was inrlospd tr»
Blr. Belani^ : and ih«4 she had, Uy the hke
cu'der, carried otJier papers loose ; Siune of
which were the Addreuy^ iScc* And beirij^ asked
by the pris^mer, how glie knew that .'' Her
reply wa^*, That she knew it, insomuch that
ili£ had read the title, ftiid Tery well remem-
bered it.
The porter that carried tlie box gave evi-
deiM^e, Thai the maid had hired him to carry a
box to tlie Three BriubeSf aod that she went
will I htm, and paid him accoiiiing^ to a^ree-
nient, and that he took it up in Hpitaltfelds.
Afler thi^, tlie mewenger, who searched the
prisonei''^ lodging with tlie right honourable the
carl of 8underland*8 warrant, being «worn*
gBTeeYidencff, tluit he found a paper in AYritiDg,
« table or shelf, which appeared in court
part of the copy, or the same with the
_ ', «iilitlc4l The Opinion, &c. he swearing,
tipon sij^ht thereof, that it was the same he
found in the prisoner's lodging. Theo was
Ihe book of the restry, or [larish aflairs of St.
Paul^Sp Covent-^^arden, produced \ wherein the
firiaoner, sometime past, bad given an acquit-
tanov for money received, aa an assistant
ourate, he, which being compared with the
pAper, seemed not to diHer in Ihe hand. But
no other evidence ap^ieared in that case, than
tliat the hook hail been always kept in the
vestry, and for the most part under lock and
key, and it being put to the pris'>ner, he did not
greatly di^ny it. When for a further contirm-
atjoo, John Darby, a printer, and his wiie,
were sworn : the former depo«in(^% That he had
{irintcd a book for the prisooer I'roni a manu-
acript, and that hand was very like that of the
libel produced in court : but he had never licen
him write, and therefore could not be positive
lit at that manuscript was his own hand.
As for his wiJe, her trvidencc was, that the
Eriaoi>er paying her some money, sbe had j^iven
Im an aociuittance ; but that, at she conceived,
be wrote aJl but her name ; for going up stairs,
be MKJU returned with an acf|uttiance, which
•be autiai^bed.
Tbia being what materially was given in
miknce for the king, the jtrisoner had leave to
niake bis defence ; who atter &omf discourse,
aJMjgecl, That he h«id been con6ne<l, and had
IMOi bad opjKirtimity to prepare for his defenit*,
fts not havmg leave to go to his rounitel. To
which tlie court replied. That he had leave
ttpoo Ihe motion made on his behalf, to send fof
counsel ; and that they nu|^ht not to he refused
^ming to him. Then he urged xeveral oilier
Tpatlcrs, which bemg over-ruled by the ccurt,
be pr€K?eeded U> intimate, thai he hopcti, that
be
indicted for a seditious
pnndaloua libel^ ^c. tlie jury would consider
jirlictber tbvse papers, they had heard read,
werteo or noF but was toid| that ilie jury
ought to consider it only as to the matter
fact, wheiher be was gudty of wrrlin;^ or pub-
lishing them, ^c. ? and that the rest by in th^l
hreast of the court to consider. Thereupon ht J
urged, that though they might be sent, yet il f
was no puiiltcation, as it waj laid in the iiulict^J
ment, because the box was nailed. But l»eiii«
fully answered in that point, and loose pupenlt
appearing hkew^ise to be sent, the couns«-l lb"
the king summed up their evidence to the jury
none appearingnn the behalf ol the prisoner.
AJ\er which, the court gave the charge, pnt-^
ting the prisoner, as well as the jur\', m niiut^l
of the great mischief that such libels mighffl
occasion : And minded him likewise, that
was within a small mailer of high -treason ; an
might have been raised to I hat degree, wer#l
not the laws, and those who naanaged theni^I
tender of hfe, Aec.
After the charge was given, the jury wtth-J
drtrw ; and returning wittiin a quarter of at|4
hour, brought in the prisoner guilty ol the higb]
misdemeanour.
Nov. 16, following, Mr. Johnson's sentenc
was pronounced by sir Francis Withins, as \\i
lows; To pay 500 marks to the king, and i
lie in prihon till it was paid ; to sUind thre
times in the pillory ; on the Monday following
in the Palace-yard, Westminster j on \Vednes*i
day, at Chariug' Cross ; and the McmdtiyJ
aftt^r at the Ri^yal Exchange ; ami to he wUijiAj
by the common hangman Iroui Newgate tdl
Tyburn.*
AAer sentence was past upon him, in onfefj
to load him with ihe greater ignominy, the
courtiers, on pretence of res|ieci lo the churcl:
moved. That before the execution of the oe
tence, he should be de^^ruded from Ihe order i
priesthood. This oujiht to have been done, i
cording to the canons, by his own dioce^ttii|J
the bislMip of London ; but that prelate wavl
then under a susriension himself, bccanse littl
^ould not obey tne king^s orders lo iiuspi-ncll
Dr. Sharp, novv archbishop of York, for [ireach*!
ing against Popery, in his own jiarish cHurc]|i|
ol 8|. Giles's lit the Fields. Dr Crew, bisho^'l
of Durham, Dr. Sprat, bishop of Rochester^ l
and Dr. White, bishop ol Pelt rburo ugh, I
then commissioners lor the diocese ot London^
in the [dace of the siispeutled bishop, were ap«l
pointed to degrade Air. Johnson ; which the^j
* ** Mr. JohnsoQ, 1063, was tried on an ln«]
formation, in the King's Bench, for writing
*^ Julian the Apostate,'' and fined 500 marks
and committed prisoner to the King^s Beticl|l
till hciiiould pay it ; which they knew v«as th# J
same with perpetual imprisonment, since hi
was not able to pay that sum. Thus he was con*
demned and committed, to the great jov of th#l
Papists; when in him they saw the laws of J
England romieinned hy thejudges, %t ho studie4 j
more to oblige the court than to do their d
He« London Gazette of Nov. ^, 1683.
too, 3 Kennett, 411. 150, 2d edition. This Cati
is alau reported, Comb* ao. % Shuwer, 489.
1351]
2 J AM£S II. Proceedingi against Mr. Samuel Johnson. [ 1S5S
performed in the Chapter-bouse of St. PaoPs,
Ti'here Dr. Sherlock and other clerg^vmen at-
tended : but Dr. Stillingfleet, then dean of St
PauPa, refused to have any hand in it.
When they came to the formally of puttinfif
a bible in bu band, and taking it from him .
again, he wa« much affected, and parted with
it with difficulty, kissing it, and saying with
tears, that they could not however deprive him
t>f the use and benefit of that sacred deposituro.
It happened that they were guilty of an omis-
sion, m not stripping him of his cassock; which,
as slight a particular as it might seem, rendered
bis degradation impertect, and aHerwards saved
bim bis benefice.
On the Ist of December, 1686, the sentenoe
was put in execution ; which Mr. Johnson en-
dured with as firm a courage, and as christian
behaviour as ever was discovered on any such
occasion : though at the same time be bad a
quick sense of cfVer^ stripe which iwas given
bim, with a whip oi nine cords knotted, to the
number of ,*) 17.
In the first parliament afler the revolution,
when the House of Commons was preparing
an act of indemnity, Mr. Johnson was advised
by \m friends to j^t a clause put into it, that
be might have his remedy at law ai^inst such
as had been his illegal oppressors. They seemed
to be sensible that they were obnoxious, and
could not justify what they had done. About
that time the lord bishop or Durham gave Mr.
Johnson and his lawyer a meeting, and made
his peace with him, to their mutual satis -
Caction.
. Sir Francis Withins, who pronounced the
sentence against him, sent a relation of Mrs.
Johnson's to toil him a feigned story, that sir
Francis lay dangerously ill, and could not die
in peace, unless Mr. Johnson would forgive
him : to which he reply'd, that be heartily for-
gave him what injury he had done to him.
Some fiew davH after, the same person brought
sir Franciij to Mr. Johnson, as he was walking
in Westuiiiister-hall ; where sir Francis sa-
luted him, and told him, That his Christian and
kind answer had proved a reviving cordial to
him. To which ]\jr. Johnson replitni. That he
heartily t'orgave the injury done to himself;
but as he had been an enemy to his country^ he
boped he wouM be luitde accountable for it : it
being a common saying wiib him, That be was
obliged to forgive hi;* own enemies, but not the
enemies of his country.
'i iie fiarliament tuking Mr. Johnson's case
iti-ri I onsideration, resolved, June 11, 16B9,
Ti;;t ilie judgment given aifainHt him in the
kii u's !>ench, upon an information for a mis-
demeanor, was cruel and illegal.
A committee was at the same time appointed
to bring in a bill for reversing that judgment :
and being alsf) ordered to enquire how Mr.
John<H>n fame to bt degraded, and by what au-
thority it was done ; Mr. Christy, the chair-
man, some da^s after, reported bis case to this
purpose:
«' That lA Trinity-teroi, 1686» in iofonaa-
tion was exhibited aninat Mr. JohoaoB, in tha
name of sir Robert Sawyer, Attorney-general^
tor writing and publishing a acandaloua and aa-
ditious libel, intitled, An bumble and hearty
Address, &c. ' That the same term they foieed
him to plead, gotajury to finil bim gailty^and
sir Francis Witbina pronounced the following
sentence upon bim: To* pay £00 marks to
the king, and to lie in priaou till it wraa paid:
To stand thrice in the pilkary, in the Palace-
yard, at Charing-eroaa, and at the Okl-£x«
change: and to be wbipt by the oommai
hangman from Newgate to Tyburn. Tbattbt
judges then in court, were the lord'ohief-
justice Herbert, sir Francis Witbina, air Robert
Wright, and sir Aiehard Holloway. That
apprehending it would be a acandal to the clergy
to nave so inTamous a punishment inflicted on s
minister, they desired Mr. Johnson might bs
first degraded : in order to which, be'mg a pri-
soner in theKing'a-bench,in the dioeese of tba
bishop of W inchesfer, he was aummoned to ap-
pear the dOth of November, in the convocatMn-
house of St. Paul's, in the diocese of Loodoo,
bis living being within thatdiooese, aad broogbt
thither by Habeas Corpus : where be tbuod
the bishops of Durham, Rochester, and Peter-
borough, commissioners to exercise tlie jnris-
diction of the bishop of London, daring bis sus-
pension ; with some clergymen, and many
snecutors. A libel was exhibited against bio,
cnarging him with great misbebavionis, tbooffh
none were specified or proved. That Mr.
Johnson demanded a copy of the libel, and sn
advocate, both which the bishops denied, aad
immediately proceeded to sentence. That be
should be dledared an infamous person, that bs
should be deprived of his rectory, that he shouM
be a mere layman, and no clerk, and lie de-
prived of all nght and privilege of priestliood ;
that he should be degraded thereof, and ol'all
vestme/its and habits of priesthood. Agaiait
which proceedings Mr. Johnson |>roCested, ss
being against law, and the ISSd canon ; not
being done by his own diocesan. But bis pro-
testation was refused, as was also his appeal to
the kins: in chancery.
*< After which, they proceeded to degrade
him, by putting a square cap on his bead, aad
then taking it off: by pulling off his gown aad
girdle, which he demanded as his pro|)er goods,
bought v( itii his money, which they promised
to send him, but he could not get them till bs
paid twenty shillings. Then they put a bible
into his hands, which he not parting with rea-
dily, they took it from him by force.* Tbst
ontlie 22d of November, the judgmont in tbs
king's-bench l>egun to be exeeut^ with grrst
rigour and cruelty : that Mr. Rouse, the under*
sheriff, tore off his cassock on the pillory, sod
put a frize coat upon him : that he wsi
whipped with a whip of nine conia, knotted,
which was shewed to the coromitiee. Tbst
Mrs. Johnson had alao an inforination exhibittd
* AatothefornuofDegiadatMD,«eeuilUi
CoUectioo, VoL 1, p. Ml, tC ieq*
iS53}
Cute (fiht Earl ^DnemUrt.
A.D. 16$74
[iasi.
•fijoiit her, for the like mutter fts Ibat B^iiioiit
bcr Iwisbiind.
^ On all which, the CoftHiiitlee e&aae to the
fti)!r i; t salutiuDfl ; which, nn ilie re|iort,
wt eed to by the House; That llic
juu^tncxH nj^aiDsd Mr, Jifttdtoti i^t* ailetf^
afui croel : That the ectilesaiUcai comtnu^
nioo WAS illeq^alf and vorifc^ucfiiij the sias-
pmtkm of the b lihop of Lumlon, oml tUe aa-
tbiifity cooiinittpd to the three biHht)|t« null moit
illei^al. 'i*bat >lr. Jolirison iint litio^ deifraded
by hJH oMti iln}ceii.<n. iT 1m> Iuu) deserved it, has
tfl«i^t : l'i»At H bil [it 10, to revenie the
^^111^111, and to ' :i'.l the pnxaee(iiDg:s
Me iHe three hisUups null and UlegmL And
llial wm Addnr^f be made lo hi»> M jesty, to re-
W— mid Mr> Jubuaii td sonic ecdieiia^lmi
atid
(ireferotettts, luitaltle Ut his aer
ferings.**
The House Ukewtseorik-vk^iV TliRt in thet
bill the |iroceedinirf» u^m rfe
Com mission sboubi be dti il.
The Huttse prmeoAmi two Ad4rMfi to
kiniif in bfb"H - *' Mr Jobosan i but though I
riiuK^ty V <(>le tmoogh to have ^m
(iJicd vrith ll:^.i ..4:i.e9l^ Mr Jkibuson touht i
ubteio anv olkurch pnditnivefit. Mr. Johnson 4
ttowei er, Wng a man of auoh tueril, <Jid tiol
paid shoi^eiher withoiti a lewttfd ; for ihtt
king fj^tiie ikitii 000/. a-vear oiit of the Po^.
ofitce^ for his abil his son s life ; besiden 1,000/.
in oiuueyi atid likewise bestoweil a pboe uf
akput 100^ a jeor on baa aeit.
353* The Case of William Earl of Dkvoxshihe, on an Informs
tion in the Kings Bench, for a^snulting Colonel Culfeppe^
in the King's Pahvce : 3 Jamjlji 11, a, d. 1687.
p^ThefoTlou
oeedin^>i <ii mr ivni_
lunic of niisceilanK
** ' uiarkahle
the Phi -
i> iiuiii a vo-
hy the lofd
.V , ufa clr'^'v*'^ "f
I of Jamr
ilion tvus w.._ ..
Ui* Trial at j». 509,
' . Irom which we
iS the Works
KO)
fcis
•let the case, wa^
' the ear! oi' W'ai
ibon^h the publicat;
J^JlUTUous, yet th( r
\[\«ri tb#» 11
ok was lit
rind ht!lr by 31 r. Dn la ilcuhe the ^fca-
ienian cntruste4t with hi!i education. The
in <]tiertiio[i, from tin ' >^ is ctj-
Bently addivs>icd lo lh<' t Lords;
■ ' -^htr it Has by way ^ii n|m . i u, or how
. is not eXfilaineJ. AlUr the earl
w ■.>liire*s Ca»e wejfi^etlic proceed-
rof the Uoose of Lord* upon it. In
^icle ol (hike of l>*^vnii JilnMij rollifi^i'*
Igc there are some r^
"[^asp, whirh de>ierve i^
PU^ ' '** not notircd in the Sffouui
mrettiureMlcr,"] Harj,^rat^t\
On 8itndiiy the 24th of Atirii, t^t,* the
aswd EaH uufiuig^ witli colonel Ct»l|jt'p|»€r in
• »ee Coro|K Itep. 49^ The following re-
aonls in Tremaine relate to the^e proceeding :
JUx -ffmtf €€ma^ Dnvon^
F^fk. S, J fit obi t^rtfaii
4idd' M , fvn*
*iie Pa*,:- ., . . ,,n
.^ji'Midd* «4d*« Apnr Am.-.
JacobiSecuiuliXhaOrm' Aughcf: . ...
the drowia^ txHun in Wbite-hallp wUtt hadHiffti
mri ty affrontet) tbf" said earl in the said kinifli
palace, lor vk liich he bad not reeei%fd any sa-
! tia^uKtion, hi* K|iakc lo the s«id colonel tu j^o
' wim him into the nt^ nxmii who went with
him Aceordin)j1y : and when they wer# tberey
I he said Lurl reouircd of him i« go ifown f.tairit
I til at he iiiiirht luive miii star tion libr the afiront
done him, iiaAitoreiutid ; which l|»r colonel re«
I futtin^ to do, thesaiil ea«V sin)c4c Itim with hia
■tick, as is gifpposf d. Thi« !»ein^ mi^de known
: cd by the
, to appcsf
• * 1
king, Xh
hi«f jushr
r>' bioi WjI
iL^ tVrA »pp«
..i.,«.,ir the nvxi u^m '-*<--
Mdfin I0«n00^and hiei f^ L
n piooe, who wt*re tlu- t\:< 4
ailford il«ee«rl of I
U-mcr#s andTho. V\ ^ >
lortl Wtiarton, The eai'i uppedrtwl u
neat niorninfjf and then the cc>uii 1,
Miat his appourancc! was rrcorded^ and so 4ie
bi^d b^tc ttt de|iart for that time. But wpoh ih«
u p|>es red there a^ain^ and bfinif
1 l»I^Hd \fy an inloriiiation of mia-
Ue said coionH in the
d upon Ui% fmvtleffef
piei (4 t*>ngliii«'1 ■ ' ■ I
niiademcfttwiur
%ur^*'<M pviriiMrnenl 1 aotl it bulu^ torn ^iriiiiui
et UilMnnieRejfis fldei I>cft>ns\ ^c. 3. Vi <
A nil is » Ail*. It pud Civit^ Wcslin' in Co
Mid^i' iiif. I I'.lii ihf ii iJ^MHiii Reifiji ibid
Hii Heci* coa
t: lit n<iiininn Heff
adtuno el itiidcm in eoijein l^ai^^ i l*%ii
p'v.na vuii f \iiicn' comnioran' r *. Aa
'^uendam Thomnm l^olep
J t et dicit Pomini Riyia i
1335]
8 JAMES n.
Cate of Ac Earl of Devomhirf^
Li»$,
time of nrivilege, be f^fuscd if* pT^d. The
court toot lime to consider of it ItU Monday,
«t ibidem exTsten' ad pugoand' cum eodem
Willielmo Comite Devon* proTo<:a?it et ca-
luniptiiavit Anglice challenged ea iiiteiitione ad
prefat' Thoma' Cobpi^pper interficiead* et mur-
drand* quodq; pred* Wilhelmus Coiues Devon*
postea scilicet eisdem die ct Atino apud C\wW
fVdltii' pred' io Com' pred' infra pred* palatiu*
dicli Doruioi Reg^s nunc videlicet infra pred'
auiam dicti DomiDi Regis cominuint" vucat'
Whitehall (eodem Domini Rege adtunc etibid'
in Godem Fakitiu In Regali pen»ooa 6ua ut pre-
fertur exi^^teo* comiDoran' et' nianente Anglice
mhidin^) Vi et Annia, Sec, in el sup' pre<r Tho-
ma' Cu1ap«ppcr iu pace Dei et dicti Domini
Regis nunc adtunc iu eodem Pa]atioeiti$iten* in-
sult* fecit ct ijisum Tiiuma^ Colepepperaikuocet
ibidem Vi et Armis, kc. malitioKe jjcrcussit ?er-
benivit el m.detra<;ia>it ita rpiod ile *ita ejtis
maxlme defiperabatur Et all^enormiu eidem
Tiiome Culepepper adtunc et Ibidem Vi ct
Armii, ^c, ioiulit ad gmw dampo' ipsius Tho-
me Colept^pper in tnatJifest conleiiipt* dicti Do*
mini Regis nunc It-jjumq: suar* ac contra pacem
dicti Dotuiui H^igii uunc Ctirou' et Digoital*
•uas, &c.
£t modo Acilioet die Lune pros* ftost Cras-
tinum Ascension* Domini itfto eodem teruviuoco-
ram Domino R^ue apuiJ Westm' vvu* lam
Thomas Po^i^ Mir H^tllicitor* Domini Regis
BUQc generar i^ui pro eodetii L>o-.ima Re^fc m
bac parte .^Hfuiiur in propr* pUona tua quam
pred* Willielmus Comes Devon* in jvropr* ptr-
sona «jua Et idem VV ill it Jmus Comes t>t"vf»n*
dicit q^iod ips^ 19 die Mail Anno ^e]^lll Do*
mini Hrgis nuoc priroo ei diu an tea et cuu*
ttnue extaue huca;«q; postea ftiit et adhuc ex* i
istit Comes Devon* uu* proteru* mag-nui* ct
pariii* hujua Re^ni Ingl' (iii4»di|; ad prcsens |
Parliament* ditri Domtui Re^iSDUoc incboat* j
€t tent* npud \t i«tm* ia Com* Mtdd* dicto i9
die Mail Auuo Regni dicti Domini Regis oui^c j
primo Buprad* et ibidem p«r sep'^ral' p'rojifa-
tiones coniinuat* us<^; ad '2B diem April* Anno '
Regni di^ti Domini Regis nunc tertio et tunc :
apad We^itm* prdd' A&bemblar el eod* die utte- \
nus p*rogat* uiq; ad 22 diem Norembr* prox^
futur* idem Comes de SummouUiou* ejusdem
Domini R^s nunc Temebat atieudebat et mo- '
ram »uam It^l ut un^ pariu* bujuii Reijtii £|
idem Comes ulterius dicit quoil seruntium Le* |
gem et consuetud* Parliameeit* a teiniMjrc cujus
coutrar* meraor* homio* non existii* usilat* et
approbat^ omnes pares bujus Regni Aug)* ad
Parliament* Doiniui Regis de Summonitioa*
eju^ili^m Regis veuien* per aliquiun Cur' eidem
Cm* Pari lament* inferior* durante tempore
hi\ju«modi Parliament* sedeti* *el infra usual*
iempus privileg* hujusmodi Parliameoi'
prox* aute vel prox* poiit aliipiam proro«
^ationcm hujusmodi Pailiament* fact' ra-
lloue vel p*tej£tu ulicujus transgr* ooatetnpl*
male^ettur' i»i*e ai* cause vel materia «i^u»*
cunq; (p ilitioo* Felon* vol recusalioo' ad inve-
meud' securiiftt* de se beat gerend* erg& Dvm*
which was the last daj of the term, ami ibe
earl then appeared, and delivet^d in bis fmi
Regem ct caoctum populu' suu' tantuimn
except*) arrestari impris^ooari vexari seu inqvofr* ]
iari seu ad atiquod huju^modi traii^fr^cooti
maiegestur sive al* causam vel inai
quamcunq: (except' precept') respoiul^
pelli non debeant nee a toto tempore awfttld^l
CODS never* Et hoc parai* est verificare uiide ev j
quo pred' ioformatio versus ijmum comileta i
exhibit' fuit infra usual* tempus privile^' ejus*
dem Parliament* scilicet intra quailragiota diei >.
prox* post pred* ult' p'rogaliou* ejusdem pre-
sent* Parliament* qui nondu* preterier* idem 1
Comes pet* Judic* ti Cur* hie placitum p'd i
modo infra usual* tempus privileg' ejusdem I
Parliament* coguoscere velil aut debeat^ \c.
Et pred* Thomas Powis 31 U* Soliaior* Do- •
mini llegis nunc general' qui pro eodem Dom*
Rcge in hac parte sequitur p* emlem Dom* |
Rege dicit quod placitum p*d p* p*dict ^Vtllid*
mum Com item Devon* modo «t forma p'd'su^
peri us placitat* materiaq; in todem oontent'
minus sufficien* in lege existunt ad precludeod^
Cur* Dom* Regis nunc hie a procedeod' sub'
information* pred* et hoc parat* est verificare
prout Cur* hie cons* unde pet* judic' et quod
idem Willielmus Comes Devon* ad ioibrmi*
tion* pred' respondeat, &c.
Et pred' Willielmus Come« I>evoii* didt
quod placitum pred* per ipsum Wiliielroum
Comit* Devon* modo et forma pre«P supcrtQi I
pLcitat* materiaque in eodem content* boiiM ,
sufficien* in lege exstunt ad precludeud* Car*
diet) Domini Regis bic a proceileud' siip* in* i
formation* p*d* Quod quidem placitum mate*
riamq; iu eodem content' idem Willielmos
Comes Devon* parat* est verilicare et probani
prout Cur* hie Cons* Unde ut priua pel* Judic*
hi Cur' Domini Regis hie super infer mationem
[)red* uUerius procedere vuU*, 6iC, Et *iop' hoc
ect* et audit* omnibus el singulis premita* pro
eoquod videtiir Car' hie quod placitum pred*
p'*kt* Count* Devon* modo el forma pred' m*
{leriuB placitat* materiaque in eodem placito
content* minus sufficien' io k%v t id
precludend* Cur* dicti Domini U ^ bic
a procedend' super information* prtu i
est*ei<lem Wilheluio Com it* Devon* '|
idem WtHietmus Comes Devon* ad um*
auon* pre^l* respondeat, 6lc,
As to striking in the King** Caorts aodH
Palaces, See in ibis CollectiomheCaaeB ofairl
Edmond Knevet, a.d. 1541, voL 1« p. 443, and]
of lord Thauet and Mr. Fergusoo, A.i», 1799*
^* John Davy had his hand stricken o(f at llial
standard in Cbeape, because he had siiiiUeii a j
man before the king*a judges al Wcailroitistcr|]
wherefore the king commaoded bicn to have (be I
tavr in example to oib«-B>'* ^w's Amiftlea, 416« J
In the year l^fSone Dirchel or Eitreiietf
executed for a murder oommittod t«i ih« Ti
of London. It appears, thai hAm h%
hat)g?d bis right band ww cutoff ■■4i
the gaUowa,
1557]
Jhr an Anauii en Cdond Ctdpeppw. A. D. 1687. [ 1353
plea ID pa.rchtnent. The judgmejit giTcn by
llif^ Hou!»e of Ix>rds, lu tbe case of tlie eorl of
Araadel, 3 Ciir. wai urgetl on the behalf of the
Mirlt ▼■£• that no lord of parhaiuent, the par-
liameat theu sitting', or ivitbin the usual timet
of |irivih>£fe of parhtment, is to be imprisoned
or revtnuned without ^ntence or order of the
House, unless it be for treason or felony, or for
refusing to ^ve surety for the peace : and al&o,
that the hkt prtvilef^e was, about two years be-
fbre, allowed in tlie case of my lord Lovelace.
The court over-rulenl the earl's plea, and reouired
tiim to plead to the inform at ion the tirat (lAy of
tin? next tprm, and to be a plea as of^his term;
lUd ao be had leave to depart, but his sureties
were nut called, for to lec if they would con-
tinue Q« his hail The next term be appeared,
and pleaded guilty to the information^ and so
the last day of the term the court did auaitl,
that b« should pay a tine of 30,000/. be com-
milted to the Kini^Vbench till it lie paid, and
to find sureties for the neace for a year.
To nil whicli Proceening ami J ucfgment three
notorious errors may be assigned.
1. Tbe Ofer-ruUng of the earl^s plea of pri-
filege.
t. The excess] veoess of the fine
3. Tbe commitment till it be paid,
, 1, The over- ruliugr ihc EarPs plea of privi-
_^ t i»a thing' of that vast oouseijuence, that it
Buires a great deal of time to comprehend it
«nght, anfl is of so (freat an extent, that more
msy be said of it than any one man can say.
The judgment seems to be very unnainral, be-
cause an inferior court has taken u^Hjn it to re-
Terse a judgment given in a superior, of which
no such precedent is to be ibund in regular
limes, scarcely in the moat confused and dis*
erderiv.
9. Because it is in case of Privilege, whicli
is the most tender part of every court ; for if
the rights anil privileges of any court are made
lif^bt oi\ the court itsetf wiU soon come to do-
Ihmgf htH^^use tliey are as it were the most es-
sential part of it, if not the very essence of the
coarl ; for what signifies a court, if its orders
cannot be executed ? It is better that a court
were not, than that its privileges should not be
duly obeerved, for wituout that it becomes a
fnare and mischief to the [>eople, rather than
an advantage.
3. Because by this they have set the feet
ahote the head ; for as they have by this de-
clared themselves to be su{)erior to the lords:, so
k will naturally follow, thai a quarter sesaions
womf reverse tn«jr onlers, or stisfietid their pri-
fileget, and a more mferior court should su-
persede what the quarter sessions does : and
thus it must go on lill the course of nature is
brerCcd^
4. Because they may as well deay a lord,
or over-rale any oiher privilege, iis well as
thia. and lo consequently^ when tlic House
of Lords it not aiHually sittings every peer
OiiHl he beholdea lo the judges for every pri-
fdege that hf enjoys.
|j this judguieut be accordinj^ to lavr, then
may the King^sbench try a peer for misde-
meanor, at the very time when the House
Lurtls is sitting \ and conHeooeiitly the Hout
must not want a member, it the RingV bendy 1
sees it good to have it so ; and vihat a <vinfu*« I
sion wuuld it make^ and the conse«|itent;<£ nf '\tf\
would be, is easily discerned. The want oC|
one member makes that Hon^e thitik ifnelf
be lame : as was seen m tlie case of the earl (
Arundel, 3 Car* How many petitions du
the lords make, and how many messi
passed to and fro, between the king and
them, who would not p^kceed lo any bust*
ness till he was restored to his place' b tl
Honse ? For they told the king, ibrit
lord of parhament, the partiumt'tit sittmg ufi
within the usual timers of privilege of parlia«
ment, is to be impriioned or restrained withoul
sei.lence or order of the House, unless it be lo
treason or felony, or for refusing to give
curity tor tli« |>cace. Surely the jnd|^es did
not give that judgment for ivant of undersund**
iiij4^ that judgment of the lords* ; for ootbln
cua be more express and plain for it : ior
says directly, that sitting tl»e parliament,
within the uj»unl tiaies of privilege, no p
shall be molested, unless for treason or fel
or for refusing to give security for the peaces]
The earl ot Devonshire did all that the judge
could require of hiiU} by tindiug sureties forth
peace ; and %vhat the judges did more, was no
grounded u|H>n thiit judgment of the lords^ bu
was n manifest and pre-sinnptiidits invasion and.
violation of thepiiviteges of the whole peerag«»l
of England,
It is very obvious, how the peerage has I
undermined ever since Hen. 7's time, wha
endeavours have been used lo make it Ic^ an
less ; iirst, by mulriply ing the number of them g
secondly, by raising people of mean extractioa
to that dignity, both which tend to render i'
contemptible. But nothing can make it mor
despicable, than that its privileges should <
pend upon the beck of the KingV-bench ; j
tlierefore considering how groundless and with-s]
out precedent it is, what they have done in i
case of the said earl, it is no more than prolm^l
ble, that they thereby aimed at pulling dov
the peerage. For, what seems so likely as
does ? It carries its evidence in \i& face, for i
manifestly ^es away the privilege of
peers, and till it does appear for what other i
It was done, all men of st^nse, and ihai are t
prejudiced, must believe it was to pull dom
the peerage ; for all that can be pretended, i
either to secure the peace, or to punish the <
^ence. The earl did give security for the peac
and he did not desi^ to shill oif his trial, bu
that it should be in its proper season ; fo(
though it delated the trial, yet it brought it I
the proper time, and so consequently the mo
legal and reasonable: but the judges must i
out of the way of renmin and ihe law, to tnal
m breach in the pntdciie of the peers. It i
tfK» roiiitnur«!v iIk *lisC0tirM' every wli« rc% i
^ 11 retts«>u, that the jud^^e
1 ^ u the law i bat tt is pb
1S59]
rJAMES TI.
Cate of the Earl ofDemtuMref
flSMj
by this jud^ment^ that they ha?e stiicic the
priv'ileg^s of tb^ peers under their girdle.
Whether it did proceed from ijriioraoce or cor*
ruptness, will appear upon what they ihati s^y
for ihemseWefl. It is too plain fn'icn one of
them it is, and either of them renders them un*
met to sit in that pUce.
1 do remember, that the puny jud^ guve
this reJisot) for over-nilingf the earl's prinJesfr.
Ssyi be, ^ your lordRhip, and all the p^«r», re-
*'ciiif« an your privileges from the Lin^, ^nd
' therefore it would be very unreaaon^le td
* make use of them against him : and srtin^
' the kin^ is concerned id this o««e, I am ^f the
* opinion, that the plea be orer-ruled/ It is
■nid, that he haa somt' law, and therefore it is
the greater presumption in him to judge upon
tfie lonl«* privileges, ^ho is not qualified by
Isiv la flit as a jna^ in any case ; f<>r he is a
Papist, u every bc^y $ays, and ao conseqnent-
ly nas not taken the oaths and te^it, that the
law enjoins, before he tak« bis phioe on the
iMch.
But as to his doctrine wbk-h he laM (Tovrn,
ilnctf it doeft not properly come into this de-
bate, I will only ask him a few questions :
vbelher tl>«re was not a people In^fore there
WBsakiniff whetlur the lin;^ be^'ot all his
Moplep andif people of flevf^ral naiions should
lie cast upon an island, and seeing no probabi-
iHy of goitin^ thence, they agree «(x>n cetlain
laws and rules lor the common good, and
make choice of the widest man amongst them
as their kin^, to rule and j^overn them acconJ-
ing' to those laws, can it thi^n be said, that the
jlliple raceived their pHvileefcs from him, or
^■1 he it not strictly bound to gY>vern them by
ihme laws and no other ? L desire to ask thi«
Qn« quettion more: whether the king- is uot
houndi as well by his oath as by the natnre of
the ^vernment, to protect and ddbnd every
iinhjett in his just rig^hts iind po[>erticE I-* But
allowing hiii ilootrtne a§ orthodox, yet hi« rea-
aaa is admintble ; fbr tliesulfjeet is not to make
»dlAnoe in any cai^e, if the kin^ have any
iMi or ooncwD in it, alt cor|>oratioTis must de-
liiWUp thalr charters of course, whenever a
^tif'Wurr&n^ is hrott^■ht ; and why ? Because
It was a grant from the kintf, and it would be
i^ry hard^ to oppose him with his own gif\,
WUo^T^r bold« any thing by gift from the
<)iown, and ilio»i»h matle a« itire as the broad
aaai oan make itv yet if the kio^ think good to
c|u«atioit it, the |»any must yield it up without
insisting upon Iw* rigrht, for the reason given
liy the learned }^\^9. For the same reason
©tory peer, if deniwl his writ, must not demand
it; nay» ho must sorreiHler his patent, and re-
iiofloca }h« tfti^, »H tar as in him lies, if the
l^ili^ reqnife itt mni lor the same reaffon,
when any tnan m catfeil to an acr^ " '- ' -
l^f he must make no def^ee,
hwnalt' to the king^s mercy ; iht h)L i^
Item the km^% aod nothing" imist be disputed
whan it is hiH (MeaKiMf> \u
iMteM t0 maiie thr
ifeiiiM on aftrtb eaa u^
lute a* nny
[\d\ to mtike
bira the mimt onjust prince that rvcr sale <»(! 1
the English throne. This aort of i
1 earn! trwm c h i Id ren , w host tfil W C4 n i * j i (
no longer than the donor remains in (haij
mof)d. 8uroly nothing can more rrflf
honour upon the king ; for it makf?s hid
unjust and uncertain as any thing cim li«^1
which should not be in the tein|ieri imic"
in the actings of a prince.
Another reason was giren, I Cliink,
Chief Jufiice, or ebe by Mr Justice Holla
* because it was absofutely nerf^'?'^--,'
* securing of the pence, it was •■ *r,
* if the r»enre could not be secuu .1 . m i
Surely all this must be but ^ruiii du '
my lord Devonshire, by fiiHiiiiir >ui f i t,
do'ne all that the law do€*s r > i
the peace, unless ihey had ^ i i.
prisoner; which they could u*»t jui»hiy, il bt]
tendered sureties: and therefone, fither my*
lord l>efon5hire i .m from nS\
and a different ni! i b** mud*
secure the peace, or * h
savours not so much r i
else, that ought to be no m^refjM^iiT \^ lu-n \
give judgment in any case. Aod it sur
common sense to understand, h't-
the tord^s plea could tend to i\\v
peace. A^ither the security v^
^iren must awe him to keep il^
other could not ^ fVir bsd he I*
again, au«l repealed it seferal i
cnme to his trial, yet that couhi
mc^rits of the cause, neither conlJ ii ht» gta
evidence at the trial, so as to alter the sti
the fact ; neither coidd the jodgea, by i
of it, enhance his punUhmenl il^ he f^et^l
found guilty, but they moat look ufiwn tt af a I
distinct offence, and so might requtre tkaj
greater security for the peace, and fbr a k>ag€r j
time.
Indeed it is an eflVctual way to pf^pventil
man fn>m breaking the prace, to lay stidbij
fine upon him as is uapos^ible to be [laid xxr^^'
distely, and to commit him till pAyiotmt.
It IS too ptHih*' ^v *^*^t »i * *
oonscious Iww i
seizes to be lift Ib?^ . ,
atid trampling; n[>on ihe law, would i
bring under the credit and antl
court ; because no other can take oognlj
of their prooeetlrngs, so as to
errors and mistakes, ^
cun be called **> an no
amiss; no *:
that if the^>
is wjlhrng thiy n»-ed
to rc>tiraiu them, btit \
to lie 1
If Out .. 1..1 .,...
as Uiejudgex ha^
ing agiuust tn^'
ifaslit^l
I Urn
1361]
for an Assauli on Colontl Cti^
A. D. 1687*
[ISCt
the vbole nation (your InpcJsliTps not ex-
cepted) slwiji U} nil the rjctravagances and
10orisirou8 juii^n»ents tbat vvny eornij>t and
~*^<yninl fellow aUtiW iCt^i', «lm »tiaH chaiire lo
uf» to tilt liencti j Ji««l rint oiilv ibis (urt'KHil
'* ■ f 1 nrnl im<lt*rg(> tlie mWhii-l* bin ii
^i ltd upon all mit:('pf*tlinif ^feurm-
»» 4 ii llirii^ tlitl t}io jmljfe?( uttc'tnpt that
which wnirM hini^ vo\ii Innihhips !$0 l(*w, nrtcl
mise thdr court m litgH, to set it ahuir ;tll
reach or coiitronl ; espc'riully if ihpy th"<J prn*
tnfst; 10 th*»mscfve-s iiinintiity^ it" not n^vaul,
If hich they mij^'ht hnie t\pwie<l, li^d it bpiMj
in the reij^n ot »n arhiti^nry pfiiicr, it hi) woiibl
be a grt-tit piincr by ibe fall of this cmtrt^ [hi-
CA I in:* then the skrt'cu brtwixt the king nud
permt*^ ''5 Inkfri nvvuy.
Tfila if the firsi tune, tbat an mfei'mr court
did lake upon it to invalid the privileges at ti
ffuiierior. Superior conri;? do ftoint tunes set I
Aifttde the orders and prccecdiners of interior I
conrt.H ; nnd yet in thai case they proceed with |
that citiuoUf that it is never dune but Hben
there is manifest ermr, and the liivr not duly
pursued arivl observed ; bitt in no cnse was it
kitowu that tbejr ever muddled i%ilh their pri- '
tilf^'e*^, i
Jt'v\hAt the judges have done h ijood, I can- \
not tell whut pouer and juriH^ii titiQ they wuy ]
not pretend to^ fur no boundfi nor limits CiiTi tie
mi to ttie l;int^^» bench ; it mny assume as I
great a power in civil atfnii^ as the lit^fh-com-
mbitjon doef in eeclesiosticnl, in llitir attintTs
not to be lyed up to any rules or method, but
lo ^wy and aUer them as wtU a< the law, wden
occaiion or humour ferre«. The proreeilini;'^
shall l»e m aumnntry, or fis ddatory us ibey
tbink fit, :ind your h^rdshipi* s\\ul\ no moie
tlian other people tie exempted from the exer-
cis«* of that power.
Thpfefort' if yonr loitlnbips will not prevent
the misehiif trou> spreading itself over the
whole nroioti,yel I hope \0'« will lake notice
of the injury yon have suffered in the cane of
my lord Devonshire, aud lo do j'ourselres
right.
The law ban for the most part left finrs to
the discretion of the judges, yet it i>* to be sticb
mdiftcretion ii* is ilulint-n by my lord Cuke, fol.
50, * di!M!retio est disLt-rnere ptr legem tjuid sit
jUSliMii ;' not to proceed ac"ctirdin;j Ht thtirowu
II ill and private affeeiion> for MAljsdiaereiio, dtx-
cretionem confundit,* u^ \\ iu^^ntc says^, tol.
aOl. Hn ilini ihe questi. n is nut \vb< tber ttic
jtidjfes eonid tine my ior4 *^ iiire, but
whcilirf they have k»'pl tin i <bia the
hnundM andlhnirs whub tin- \■.i\^ tf.i-^ j»ritbem.
It IN sn very evident, 0-« not to he made a
«}irc«ttion, \ihii!M:r ini''-"! " " '* 'lieh are
left |(» (he diMn tinn hut the
laiv \k:ts kct lUi m Imiu, . Iiielt, an
Gnd ^ays m the u avr :. mI \\\ i lo sbftU
tliun ^o and i»o farther, i Im v are
»0 restrained, or else \\iv se
lll^tn to be tvxetnpled frkrn lud
iiorin which do ;itienrl tJr n %i «>t niankind:
fttsthcy eamiQt b« tuppos^d to bo^void cf
VOL. XL
\l
paeons and infirmities, nr^ l«iis than ottn*r
men, so it cannot be imnt»:»ned, that the lafi
has leA men to so « iUl a ju^itiee as i^ g^uide
by pnaston and arTection ; for it had lH?»n i
rU-reat a defect in the couMtittnton of this i^fft
Terument, tbat long before this it uoubl have"
been rcr«rmcd. And as it is most clear, thai
ttiey are thus rc«;trained, so thoMe boutnh and
linuts are no less known <o ihcm liiul are jic-
quninted with the law* 'IMierc are two tlun^j
w hieh hare hereto! ore been looked upon as verj
i^ood guides, Ist^ what has formerly been exM
[iressly done m the like ease ; Vdly, for wan
of such particular direction, then" to conside
that uhicti come«« the nearest to jt, and so pro-
portiouahty to add or abate, hh th^ manner and
circumstance of the case do require. These
were tbouglvt very good and safe directions^
till it was detrlarett, and ever since has l>f en
pnicli.sed in the kift^'s licnch, that they did not
regard precedents, but uould make them ; and
for ought that I can learn or 6ijdt thiiE of mj
lord Devonsliire is an origrnat.
What obscurity soevrr may be pretended in.
other cashes, yet I'u lliis ibe (aw has jjiven so *
positive and rdain a direction, that tt seems
very strange, bow they came to lay u fine of
30,(>0t>/. upon n»y lord Devonsliire.
The court otstar-cUumber was taken away,
becauf^e of the urtmea^uraUc tines which it
imposed, which alone was a plain a nil direct
roitibition f<)r any other court to do the liltV,
'or othir^^isc the mischief rcmaineil ; for what
advantage was it to tlie notion, if it had tiot
been wholly Kupprcijt? The stiifiin^ of bunds
Ji^ave the people no iiase in the burden that lay
upon them. It wajt all one, whether fbi' star-
chamber or king*s bench did crtmh them bj
immoderate fines. Dut to put all outofdis*
pute, the statute 17 Car. Kays expressly, thaij
from hencetbrth no court» cmmcil or place i
judicature shall be erected, ordained, iion«ti-1
tuted, or appointed within Ibis realm ofEujy^g
land, or dominion ofWalrs, wbi<^b shall have^.
use, or exertisc the same, or the like jurisdie*
lion, ss is or huth been used, practised, and ex-
ercised ill the said court of t:tar-cband»cr: sad
this was upon v^ry g^ood reason, because those
^rrat tines, imposed in thai court, were lucon*
tihiteut witli the law of England, which is &
law of mercy, nnd concludes every fme which
i» left at discretion, with * salvo contencrneuto.*
If the fines impostd in the star-chand»t*r v^era
an intolerable burden to the snljpTt, end the
means to introrluce an arbitrary power and
government, as that statute reeues, tlte like
I ' -^ ' i'l^Vbet-ch ea It be no les)
produce the hiime evi(
i,..,.. ....... ... .M.Mi* upon new occasion*, (il
sudden imm*^rijencits, the reaiton n\nm wJiielJl
ihey tvere made mav 1 1 m- mu! inii.>.j;inF
tb^y do cease aUo,
cd Lfpon the ancient
mtnt caniiol cra.c* I ti et thcis
will everconlitinf ; "f i; CafJ
beings such, no '■ 1, ^Ui\ i* tiovr j
as much force - ^t'lii i.D wbioltl
4»»
1563]
S JAMES II.
Cau of the Earl of Devonthirt,
[1364
was marie ; and therefore this fine ina|>08ed on
my lord Devonshire is in open defiance of'that
ptatnte.
1 think no man can altog^ether excuse my
lord Devontihire; fur my part I do not hut
think it was a very inconsiderate rash act, and
I believe the indiscretion of it abstracted from
the fine is a very sensible trouble to him. Yet
if those things were «vantir'g which may be
tirged in his excuse, the ofiVnce and punish-
ment do not seem to liear a proportion. Could
not the merits of his fiither be laid in the ba-
lance, nor the surprise of meetings col. Cul-
pepper ? For my lord having been abused by
iiim, a man of so great courage and honour as
my lord Devonshire, must needs feel and re-
member it a long time, having received no sa-
tisfaction or reparation made him for it. But
if there were notliintf of this in the case, could
all that may be said to alleviate his ofiitnce be
urged «;,^inst him with a double weight,
were the circumstanced of the fact as foul and
aggravating as the malice of his (enemies could
wish, yet surely a less fine might have served ;
for the law casts in a great many grains of
mercy into every judgment, and has ever
looked upon an over-rigid prosecution of the
guilty to be no less tyranny than the prosecu-
tion of the not guilty, because it is sum/fium jutf
and has declared that to be summa injuria.
But besides all this, I do conceive with sub-
mission, that where the law has intrusted
the judges with a power to fine, it is in a much
less degree than they have done in this case.
First, because the law is very cautious w bom
and witli what it does intrust. It reposes a
great confidence in the king, yet in some cases
his acts are not regarded by it ; as the king can
do no ministerial act, a commitment * per
* spcciale mandatum dom. regis,' is a void com-
mitment. Where there lies an action in case of
wrong done to the party, the acts of the king
in those cases, according to the old law phrase,
are to be holHen for none.
Secondly, because liberty is so precious in
the eye of the law, it is of so tender a regard,
that it has reserved the whole dispose thereof
to its own immediate direction, and left no part
of it to the discretion of the judges; and what
the law will not sutler to be done directly, it
does forbid that it shall be done indirectly, or
by a side wind ; and so consequently the judges
cannot impose a greater fine than what the
party may he capable of paying immediately
mto court. But if the judges may commit the
party to prison till the fine be paid, and withal
set so great a fine as is impossible for the party
to pay into court, then it will depend upon the
judges pleasure, whether he shall ever have his
liberty; because the fine may be such as he
shall* never be able to pay ; and thus every
man's liberty is wreste<i out of the dispose of
the law, and is stuck under the girdle of the
judges.
Hiirdly, because the nation has an interest
in the person of every particular subject; for
•v«ry Hian, either one way or other, is useful
and senrioeable in his generation. But by
these intolerable fines the nation will frequenthr
lose a member, and the person that is fined shaU
not only be disabled from doine his part in the
commonwealth, but also be and his iamily will
become a burden to the land ; especially if he
be a man of no great estate, for the excessife
charge that attends a confinement will quidclj
consume all that he has, and then he and Iw
family must live upon charitv. And thus the
poor man will be doubly punisned, first, to wear
out his days in perpetual imprisonment ; and
secondly, to see himself and family brought to
a morsel of bread.
Fourthly, because in all ^jeat cases, and
such as require a grievous punishment, the hw
has in certain awarded the judgment ; and next
to life and corruption of blood, a severer
punishment cannot be imposed, than to be fined
more than a man can pay, and lye in prison
till he does: but if some great cases did
happen, which could not be foreseen, it was
always usual whh the judges, when any such
case came before them, to adjourn it to the
parliament, which had been needless, if they
could have punished at the rate that our judges
have of late done.
Fifthly, because wherever the law has set
down a fine, either by way of punishment or
caution, it seldom exceeds 2,000/. Nay, even
in that tender place of liberty, if a judge shall
not relieve witn an Habeas Corpus, but let
the person languish in prison, yet the tbinl
ofience is but S,000/. penalty ; and I suppoie
that that is but inconsiderable, in compansoo
of what any of the judges are worth, yet it
being taken as a punishment, is by the law
looked upon as a great sum.
Sixthly, because the law of England bein^
a law of mercy, and very careful to prevent
violence and oppression, and to that end havio|;
for almost every ofience appointed its particular
punishment, it cannot be supposed to have left
so great a power in the judges, as they have
exerted in this case. True it is, some thiags
arc left to their discretion ; because it was not
possible to foresee every particular case that
might happen. Yet they are things of the
least size that are so intrusted to their judg-
ment; for (as was said before) matters of
any considerable moment were still referred to
the parliament; as also the review of what the
judges should do in those lesser matters, which
were left to their discretion.
As these proceedings are a great wrong to
the subject, so are they no less a disadvantage
to the king ; because they will make his go-
vernment look very rigid and severe, and givefl
it a grim fierce countenance, which, though I
don't say that it will make the people rebel,
yet 1 am apt to believe that it will set them
upon their guard. It is lair and gentle usage,
that prevails upon reasonable and free boit
men. It is an easy government that will bow
the hearts of the people of England; for, says
the statute of William and Blarv, the eatate id
a king staodeth more aasurodhy ibeloftif
1365J
Jo* nn AttauU on Colonel Citlpepper.
A. D. 1687.
CIS66
his subjects th&u ip fear of Uws ; so that the
king wiU be on the losing hanil by ib^e pro-
oeeaing«, because it spoiU the cumplexioti of
bifi g-overnraeot.
Aud the kinff will yet be a farther su0*erer,
for if 30,0CK)/. be the price of a bl(»w, it will
make Whitehall very erupt}', fur he that g'oes
thither must approach it with tiear anil trem-
bling, because he does not kuow but he shall
he ruiued before he cooies theuce ; for though
ft man ann hims4ilf with alt the resolution be
cao, yet it cannot be proof againt^ the contri-
Yaooe of those that intend to do him a mischief
Bspectalty if he is not upon very good terms at
<:oart, there will never want tboi^e uho will en*
y^ deaypur to draw him into the snari^ hopiag to
^^heritby it; and though perhaps thty uti^itake
^^■nr aim ; yet howcvt^r, revenge, that is so
^^^reet, will be greatly eucoura^ed to provoke
I bim, because he cannot hope to reek his malice
" so plentifully as this way, because if his at-
tempt succeed* the other is ruined: nay, il'he
do not strike, but only defend himself^ yet if
the judges donH like the complexion of the
xnan, they will call tliP fox's ears horii«», and
I lay till the btame on his back* and pronounce
Ihitu more guilty that looks over the hedge,
Ihaii he that steals the horse,
8ince the business of my lord Devonshire
bappeued) I have heard him blamed as the au-
thor of his own misfortune, and that he drew
the mischief upon himself; and the reason
^ven, was, because he ought not to have gone
I to court ; for, said they, tie knew there were
I many there who wiiihed him ill, and therefore
I aouner or later he would meet with an affront,
I and if he once fell into their hands, be must
' expect no quarter, because colonel Cutpejiper
whoi without any provocation of my Ictd's
part, bad so unnecessarily fallen upon him,
aud bud by drawing blood upon nty lord for*
feited his bund ; yet nut only that, but all the
rest uf the jtid^-uient was pardoned ; aud there*
tore OS well that as this are lookeil upon us bu-
doesws that were laid. But in saying this, 1
(m\y lelt yom lordships what is asanl without
doors, and I don't fipeak it as my opinion ; but
setting the tattle without doors aside, 1 do con-
ceive, that can never be a just judgment >vhLch
ti^ures tlie king as well as the party that is
puniMhed.
i;ut the true nature of my lord Devonshire^
ofleiic* has not yet been thoroughly considered.
Th<^ law doLs iu nil c:i£i s give i^teat ulluwitttces
ta what is done on u smiden heat, v* b< re there
docM not upp«*ar any preme^litation ; and f*>r
this reason, \%\ivti a man it> uidicted lor (nurder,
if upon the e^ideOLe there does out appear ma*
lk€ prcpcme either expressed or iniplyed« the
party ttft:u"<e<t kIjuII have his clergy » And tiir
the same n- iv»ri, though it be death to maim
or diKfigure aoothrr, ^et if it be done on a sud-
den heat, the [^arty xhall not die for it ; for in
thtffic and the tike cuM.i»the law thiuLn him to
b« more blame* wtirlhv who gave the pnnoca*
tiofi, than h«; that wai «o provoked ; because it
wai oot the ellVct of an evil luind, but of pas-
sion ; * et actus nou sit reus nisi inenN fiit vea«*
If therefore it he true which I have beard, ihii
the king promised my lord Devonsttire, tba
colonel Culnepper should never come m \\ bite
ballf it will then foIUuv, that my lord Devon*
shire's striking colonel Ciilpep|>cr wa»UiecHeCt
of passion, and not of intention, becauiie b?
could not ekpci't tu meet him where he did.
]f so, 1 conceive wiih snhniiiiMon, that the pu-
nishment and offence don^t iu any measure
bear proportion*
Hni 1 am pcrf^unded, tliat the judges were
resolved ujkju uhat they have done liefore tliey
heard the cau*;e, in case my lord was ionnd
gtiilty ; and the rather, because rny lord chief
justice was haranguing the ofl'euceiieforeh and ;
for when my lord Devonshire appeared May
6, he tohl hnn, that to strike in the kiug^h pa-
lace was little less, or next door to pulhng the
king out of his throne. Indeed, «in the last
day of thii term he did eN|daiu iheiu thus ;
that the time and circumstances might Im such,
as it would bp little leiis than the assaulting the
king in his throne. But several have told me,
who heard hnn, and they ^ay, I he tii'St words
of time imd circumstances were not mentioned
by him >Iity 0 \ aud in particolat\ a noble lord
ol this House is one Trom whom I had r|iy in*
formation; and if it were so, tliose words sa-
vour too umch of a prejudging the caune.
There is no doubt, but in case of a tine set,
the court may commit the party, in cose of
obstinacy, for nut paying the line into court.
Yet this is to be taken twn umno »«/i« ; for if
the tine he immodenite, or else he haS not tho
money then ready, but either offers security to
pay ii, or else pfsiys lor »ome time, and iu the
interim to !»iaud upon his recogni/^uuce ; hi
either of t bene cases, to commit h»r not paying
the fine tntM court is not juMldjuble»
Firsi, because it is to punish for not doing
an impo?isdnlity^ for * lex ikon cog it ad impos-
* sibtlm*
Secondly, it is not justifiable, because if the
line be pant, ilie hiw k^ a^ niuch Kuli*^[Vtd if it
be paid live yeais li. ncc, as it it be pi»1d then
immedmtidy into court ; for the la^v iloes not
suppose, that the mo^t wealthy man does carry
so much moiny :dH»ui hiin«
Thiidiv, it IS very unreasonable, beeanae it
do(^ in a great pait (livable tt)e person to pav
the tine; for if he be a man, that munajxc** hia
own atlnirH, ids wniTiigs, that are nece^^tiry to
make the seeuiiiy, may bi* mj di^poseil of, ih«i
it will be dit^icult to eome at iheio. Besides,
there being u m-Oisiitv upou him to have
the money, llioHe o1* wImuii he i*« to have it will
be very apt to hold him to harder terms; tbr
the wot hi XH so unnatural and biutifth, that ont
man im Inn too prone to muke Ins advaniagea
upon tlie misfortunes and neee^liies of auo-
ther ; and that prove ib., hmtu$ humim htpus^ is
iu no cns^^ more true than m ihc i>u%m€>s uf
money,*
♦ **Oclober 24th IdHf. On tbetiiotiDfi
Solicitor Gf neral, process was ordt:i<:J
mrj
t JAMES n.
JE^BOCBSDOrGS Of TBB HoMB OF IX>B])t ON TH^
Case of the Ejbl of I>ktoiisbisb aftbe
THE RETOLimON.
Extr^Udfrom the Jowmak rfthA Larii.
April S8, 1689.
• The carl of Hantingdoii reported from the
•oominittee of priYil^^es the omo of the earl of
DeFOo, which was read, viz.
" Ordered to report, that tbeur lordships are
of opioioD, that the proceeding agauist the
earl of Devon, in the court of King's-bench, in
Baster-term, in tlie third year of king James
the second upon an information for an assault
upon Mr. Culpepper, wherdn his lordship's
plea of pri?ile|||e ot parliament was over-ruled,
^and he wa$ fined 80,000/. and thereupon com-
mitted to the King's-bench in execution, was a
great violation of the privileges of the peers of
thlsreahn.
" Their lordships are likewise of opinion,
that those Judges,* who sat in the said court,
when the said judgments were given, and the
•aid commitment made, should be required to
attend at the bar of this House to answer for
the great offence which they committed ihtte-
HmopoD the BoiMinad» tlNWOkdcaM^
lowing:
'' Ofdeced by the Lords mpitnal wu^ Imn
poi al in parliament assembled, that the oMk #r
the CrowliHiffioeiif&eKiii^s*hoBcii,do!Miif
into this House the recorts of th«t ofiei^
wberein the proeeedugs-in the eosviof ^m;^
bench against the earl of l>evoo areeaterea k
the Earl of Devon, for his fine that it should be
estreated into the Exchequer, and a tipstaff
was ordered to go into Derbyshire, and fetch
■ir Paul Jenkinson Oie high sheriff up in cus-
tody, for refusing to raise the posse for appre-
hending his lordsuip when he was in the coun-
ty this summer.
** The earl of Devon bath made bis peace at
court, and hath kist the king's hand, he liatli
ipven his own bond for the hne, aud satisfac-
tion is ordered to be acknowledged on the
same." Narcissus Luttrell's MS. Brief 11 islo-
rical Relation, &c. in All Souls library. Some
tiarticulars respecting Privilege and Breach of
Privilege are to be found in this Collection, in
the cases of Elliot and others, vol. 3, p. 293.
Bamardiston v. Soame, vol. 6, p. 1063. Sliir-
ley V. Fagg, vol. 6, p. 1121, earl of Sbaflesbury,
vol. 6, p. 1269, llicbard Thompson, vol. 8, p.
1, and the other cases noticed in those. Lord
Hale, " Jurisfliction of the Lords House or
Parliament," chap. 17, in considering how far
the Lords could exercise a decisive or judiciary
determination in tiie first instance, obser^res
that, * two or three judgments given by them*
selves in disaffirmance of their own jurisdiction
are of more weight and value than a whole
cartload of instances of private causes heanl
mod determined by them in the first instance,
where possibly the defendant durst not or did
aot plead or except to fheir jurisdiction.'
* As to calling Judges to account io parlia-
ment for their judicud conduct, see m this
Collection the Case irf* KnoUii. Seealaothe
* Pkocaedings in the grtit Cna if Ship^OMiiey,
.foL 9y p. 8S^
against 1
formation fw an Msaah apon Mr. Culpepgij^
Eftster-term, 8 Jacehi secondi, upon
r'r.Cul
on Saturday the 4Ui of May neit, ct In
in the fortooon."
'' To sir (Samuel Astry, deik of
the crown in the Kmg'e-
bench, his depotr and depu-
ties, and every or them."
*^ Upon rei^rt from the comnuttee of..pnfi«
leges concermng the prosecution of the em of
Devon, upon an information ui the KingV
bench, it is ordered by the Lords aciiritiial aid
ltfu)i>oral in parliament assembled, that the
kcf jjer of the prison of Newgate be abd ip
hereby required to biingin safe oostody to the
b^rof this House sir Robert Wiu^tnow ia
bis custody, on Saturday the 4th ofMi^ 'o^
at ten o'clock in the forenoon, and this aballkp
a sufficient warrant on that behalf."
"^ To the keeper of Newgate, his
deputy anddeputies, and every
of them."
** Upon report firom the comnuttee lor privi-
leges concerning the prosecution of the earl tf
Devon upon an information in the KiogV
bench, it is ordered by the Lords spiiituai end
temporal in parliament assembled, thai m
UkUanX Holloway be and is hereby required
to attend tbis House oil Saturday the 4th sf
Mskv next, at ten o'clock in the foreuoon ; and
berljof be may not fail."
** Ordered that Mr. Petytand Mr. Bradbury
do attend this House on Saturday the 4th of
!^Iay next, at ten o'clock in the forenoon."
** Ordered that Mr. Justice Powell do aUrad
iWi< House on Saturday the 4th of May next,
at MU o'clock in the forenoon. "
May 3, 1689.
<' Ordered that the keeper of the prison of
Newgate be, and is hereby required to bring in
stiih custody, to tbe bar ot this House, sir Ite-
b«^K Wright now in his custody, ou Mfmday
tbe 6th day of May instant, at ten o'clock ia
tite forenoon; and tbis shall be a suffideot
wjirrant on that behalf."
*^ To the keeper of Newgate, his
deputy ana deputies, aud every
of them."
«' Oi-dered that Mr. Petyt and BIr. IkadUiiy
do atteud this House ou Monday next, at MP
o'clock in the forenoon.
3f(iy6, 1689.
This day being appointed tnUar^iirlWait
Wright, sir RkSardileUomj, a«d Mr. J«^
tioeBmU»< - . -
J 369] Jot an Aisautt on Cahncl Ctiiftjpper. A. D, 1667.
Mr. Justice Poirei/ being a&ked,
discourie tbey h»il at the lord '
"sniif, ** Tbc Uinl chfttict4l«M
20,000/.; Ijut jirtrrvvaidisald ii »^u... u^- bct-j
ter \\' SOtUOO/. aijil tUoci the km^ llli^^lu abatf 1
10,000/. To this be ij«clure<1 bis dislike la til
court of Kini^'s-Wnch against tlie earl of
I>evon, in toaster* tei'iu, 3 Jac. 2, upon ao iit-
foruiutioii liur an luisault upon Mr. Culpepper in
Wbitvball,
And the ftuid sir RohtTt Wright, and sir
Ricimtd nolU>way, W\u\^ at thr bar, aud Mr.
Jiifttice Powell in bis pUcv, and 3ir. Bradbury , other Judges, but nut before the chancellor/'
and Mr. Petyt (who wpre appointed by the
II uu«e lo attend this diiy) bi?jti^ permitttnl by!
ihc lloti»«« t«i stand Hi tlie eud of the clerk's i
table, where akotituml the cin'k of the Crown-
ottiee in the Kings's -Ijeuch, and his deputy,
with the fecords relating to this nijiiler j
which deputy liaving publicly read the said
record, '
And hemii asked, ** What tbey had to say
for iheuisclves in this busiaefis?
Mr. Justice Poutll saiil to this effect : ** It
was his great tnisfortune, that he was mis-
guided by »(ome liofiks, which he looked on as
authorities, which he Hnds by their lurdithips
judjjments nxe nut so, i\\u\ he humbly begged
their lordships and the earl of Devou's pardon.
As tn the line, he looked ou 3,000A to be fine
enough. I J is sUenec in that business was hi«
greati'st fHult^ for w bich he also begged par-
don.**
Tlien Sir Rubert Wrighi said to this effect :
'* That as to th« breach of privilege, they t*ere
inisgnided by prectduntu, and us lo the fine
(which is usually st;t accorditig to the quality
m\i\ estate of the perfion ftued) it caine I'rout
the puny jud^e 30,000/. ; and so to him last,
according lo the cour^ve of the court. And if
be was mistaken, he begged pardt>n ; for he
never had the least disrespect to the lord of
De?on.*'
Then Sir Richard Hollfmuy spake to this
effect : »' Jle, aj* <<ec<>iid Imlrr*^ tirouounccd the
iiae 50,000/, \»hich m. . am. : and if
a les«?r tine had been j . ^ .^should have
accsepted it ; and did not ju!»tti y the proceed-
ia^5c. btit loikKri! on ii rm an excessive tine;
a ^ ' s (jtrdon, and •uh-
lu.
And then they beinjf ii*.l:e<l, ** Whether they
had no di!te«uir»e together l>cfortf, concerning
the HHtd fine ?**
Sir Rnln rt Wrighi said» »* We discoursed
not oi'iti* fine, hut in court."
8ir Rttfutrd Hol/oM^av also decbretl, •* Uc
had nu direction from cither the kmg or chau-
cclhir about the »aid tine."
Wliprrupon Mr. Juntice PunW/said, *» 8ir
Richtird Holiovvay may letnendMf ti^*--.- %%•>- >
diiiicounie »it' the Hue hve or ^ix i
the b»rd chann llfir's, where nir It
aif Itiehiifd llidioway, sir lliehaj-d AJetbone,
and hiiniH'if weit?."
Tttij. Sir Richard Hotkwat^ said. He did not
remember.
And Hit Rufurt IVrifiht denied that tli^ tuel
iherr purpoMrly alK/ut the fine
Thai tliey ivtthdrew.
Th»^n he w iibdrew. — 4'^er debate the Hon*
were of opinion,
*• That the court of Kio^f's- bench, in (
ruling the earl of Detmo'K plea of privilege i
parliament, and forcing him to plead over
chief, it beiuL*^ within the usual time of priv
lege, i\ A thnj* l»y commit a manifest breach
the [i pnrliament.
** 1 le of 30,000/. imposed by the
court ot Kmg's-l>ench upon the earl of Dcvou
was cxceftsive and exorliitant^ against Mag
Chartjif the common right nf the subject, and
against the law of the land."
Ordereil, That the Judges this day pre
do ^ive their opinions to-morrow, at len o^clock
in tlie forenoou, how the law Mnnd^ a«i to thfl
ci»niniilu)cnt of a [ti^r U|K>n a hue lo the 1
May 7, 1089.
Tlie House heard the Judges, what case^
and preceib'uis there were iti the law, for the
couauiituieiit of a peer of this realm in ex€cu>
tion lor a fine.
And, alter consideration thereof, it is ordered,
That this House will* i>n Wednesday next, at
ten oVlock in the forenoon, lake into their con-
sideratiou a i[ui:!ili»o ari^iiiiL; upon the cbml* of
thft carl of Devonshire, ** Whether a peer of
this realm may by law be conmiititd m execu-
tion for a line?^* and that Dotice be given 10
the king's counsel of the »aid order.
Moy 15» ItiiiQ.
Upon Te[Kirt9 from the I^t^rds* committi
for pi V ho wtre of opinion, "* That tfa
proc _ unst the earl of Devon, in tb
court ol Uiu^'n^lki uch in Hust*'r-term in thsJ
third \f>^.r of king Jam e«i the steoutl, upon an]
I 1 lor an a^nuull upon Mr.f'ttlpep^ter^l
J. b»rd«hip'r; plea lT privilege of par*]
IjunM ijt vvas I '. and he \%as ln»o|J
:;io,ouu/* ;ii I coumolted to tba]
Ivirig^sbeoi II ill e\rt tittuUj i*ere |»r«al irola«T
Uon^ of tiie privileges nf the peers of thiif
reahu."
And aftwr hearing the reeord of the court of
King's-btrii* ht wherein the jiul':»ii ni
lb*' earl of r)evi>n is entrri:d, n
R Ij ri Wi jhr, »,ir Uithaid i
ell, (who gave thi-
, t «.trl id" Divon)
couhi *i'*y I'M *i pro
ceedingH \ imd
kiug*»i couttst'U u^ i>w 4 4td iUiii
tend if lUry had anv thing to
pcr^' ^m mi^flit by laiv bt iuiuinitl«ill
in r.\< i\ fini-, th«^ naid t^juiisrl i\n\ ai>l
( :^i iheir aiteudaneti, («ti«r a w<
' did otfcr tiothi Kg therein.
»sri]
4»JABffES n.
TrialofPmip SUmd^Mk
[1S»
lAtr fan ooBttdentioii hftd of tbe wfwal
9mm and precedente wherriD the pririlegetoT
the peers we been eonoerned ; the Lordsspi-
litmd end temporal in perUament do declare
and adyod^i that the court of King's-brach,
in Qver-mlmg the earl of l^eron's fiiea of pri-
vilege of parnamenty and forcing him Ip pwad
ever in chief, it being within the usual time of
privilege, did thereby commit a manifest breach
of the privlleffe of parliament; and that ihs
fine of dO,00oZ impoeed by the court of King^
bench upcw the eerl of Devon wiw ciecssife
and exorbitant, against Magna Charta, tiie
common right of die subfeet, and tlie law «f
the land ; and that no peer of this realm at any
timeoiM[fat to he committed for the non-paj-
ment oTa fine to the king.
.354. The Trial of Philip STaiKDSFiELp, Son to Sir James Stands-
field^ of New-Milns in Scotland, for High Treason, the
Murder of his Father,* and other Crimes libelled against h^m :
4 James II. a. d. 1688.
CmuA Josncuau, S. D. N. Regis, tenta in
'nretorio Burgi de Edinbuigh, Sexto die
Mensu Febrnarii 1688, per Nobihun et Po-
tentem Comitem Georgiom Comitem de
LmUthgow, Dominnm LivingBtoan, &c
Jnsticiariom Generalem totius Itegni Scoli«,
et lionorabiles Tiroe Dominoe Johauoem
Lockhartde Castle-hill, Dandem Baliuur
de Ferret, Rogerain Hodge de Harcase, et
Johannem Muray de Dnuncaime, Commis-
sionanos Justidaris dicti 8. D. N. Regis.
Coria legitime affirmata.
Jatfron,
Philip Standsfidd, eldest kwfnl son to
vmqahile sir James Standsfield of New Milnes,
prisooer within the Tolbooth of Edinburgh,
indited and accused at the instance of sir John
Dairy m pie youDger of Stair, bis majesty's ad-
Tocate for his liighness's interest : that where
notwithstanding by the lawof God, the common
law, law of nations, laws and acts of parlia-
ment of this kingdom, and constant practice
thereof, the expressing of malicious and sedi-
tious words to the disdain of bis sacred ma-
* As to the union in one dittay, of hetero-
geneous charges, see the Case ut Nairne and
Ogilry, A. D. 1765, of this Collection.
Amot ^Collection and Abridgement of Cele-
brated Cnminal Trials in li$cotland, &c. p. 139)
gives the following- short note of a tiial for
parricide in the 16th century :
** John Dickson, son and heir to John Dick-
■on of Bellchester, on the SOth of April 1691,
was tried for the murder of bis father, com-
mitted in the month of July 1588. The cri-
minal record contains neither the particulars of
the m^irder, nor the evidence against the pri-
soner, but only that be was convicted by a jury,
and sentenced to be broke upon the wheel at
the cross of Edinburgh. At this period, and
long after, the sentences of the coui t of iusti-
darjT frequently express no time ibr their being
earned into execution ; it being customary to
•lake the con? ict directly from Uie court to the
icaibM."
jesty's perM>n, and contempt of his royal go-
vernment, snch as drinking or wishing osn-
ihnon to his miyesty, is high-treason, partico-
larly by the Snd act ^ 8ess. Par. 1st kisg
Charles 9, of ever glmioos. memory : theplot-
ting, contriving or intendmg death or de-
stmction to the king's majesty, or- say
bodily harm tending to dcm or dcstroe-
tion, or who shall by writing, printing, sr
other malicious ptotting and adrised speankf,
express and declare such thdrtreasooableia*
in^, invadmg, or assassinating of a parent bj a
child, above the age of 16 years, who is nst
mad and furious, is punishable by death sod
confiscation of moveables : and of all other
murders, parricide is the most atrocious aod
unnatural ; and murder under trust is iiuniib-
able as treason with forfaultureof life, tend
aod goods, and particularly by the 83 Act, 1st
sess. 2d par. king Charles S. The king's laa-
jesty and estates of parliament, consideriog
how great and atrocious a crime it is for chil*
dren to beat or curse their parents, and bow
the law of God bath pronounced just sentence
of death against such as shall either of these
ways injure either of their parents ; therefore
the king and estates of parliament did statute
and ordain, That whatsoever sou or daughter,
above the age of 16 years, not being distriicted,
shall beat or curse either their faSier or their
mother, shall be put to death without mercy.*
And sicklike by the 51 act, 11 par. kisg
* ** And such as are within the age of 16 yean
and past the age of punillarity to be pumsbed
at the arhiiriraent of the judge, according to
their descrvings, that others may hear and lesr
and not do the like." 8ee some Observations oa
the Scots law, as to this matter, in Hume's Cooi-
ment. on the Criminal Law of Scotland, parL S,
cliap.4, s. 1.
«« Jone 5th, 1683. At Slirluigooe parsoed
for cursing his lather, eonfssscd that be caBid
him a drunken dog, and waa asgiapoid la mH/x
1373]
Jut the MurHfr qfhis Father,
A. D. l(3bS.
[1574
James 6. It it itfttuted aiid ordRmed» That
the iiJUfdcT or Blaiighu^r ol w baifcoiutv er of
the leid^esi w licit; the pity »taiti, utiikr ihi*
trubt, credit, asMirnucc, ainl iH>wcr of' the
^loytT, al) »ucli iimriler or slauiitiirr to be coin-
mittetJ 111 lime coiiiiu^s the i^amchcing laufully
incil, antl tlie person diliiteii Ibuud guiUy hy
All a^oi^tsie lliereoC, s.h:ill he treai^in» ftuu the
jH'mon found culpable shuit (oHot life and
Ifoods I us if) the imu\ la us aud acts nf pnrliii-
mtrni at tuorc ktigth ta coulAiiied. Neverihe-
lc*5 it is of verity, that the said l*bilip Siands-
iield, jiboking olf uU Itar of Gud, the bouds
aud lies of Diiiure and diristiaimy, rogard and
olK'dieuce ti» tlie said laws aud nets of par-
haiuenl, <lid dare aud |>ri':iu:iie to couimii the
•aid liorrid anil detestuble chines, lu swa tiu*
as, ujKJu the fust, second, tliii'd, or one or
cHherof the djysof thenioutbii of June, July,
Au|^ust, or ISt (item her lu&U by past, one or
other of theu), be djd, withir/tlie boose and
kitchtnof New Mibi^^, call for ale to dntik
flouie heaUii.<^r on«l tD tbe {presence of Jobii
llobi«on,ihtn bis father*!! servant, Agnes Bruue,
iikewiMC his fatber^s sen'atrix, aad several
vlh«rs» be djd ss a most vilt;iiuous andaTovtcd
Iraitor, )i resume and dare to bc^n a health to
tbe confusion of bij sacred roajeaty, l)is native
sovereign, and drink otf tlie Kame, and caused
others ID bis coin(mny to do the bke. And sick-
bke sir Jamts SitundstTeld of New Milns his
father, having' caused e<!urat and bring bim
op decentlie, and in plenty ccnfurm to his raak
idi|uality, and baviisg left no means ones-
ed for his literature, educ4itiou and sub-
ce ; yet be Ijeinj: a pi^di^'^nte and de-
bauched persGu, did cotnniit, and was accefi*
aory to several notorious villainies^ for which,
bolb al home and broud^ be nas apprehended
and detained prisoner, as in the Marshalsea-
firison ill SouiJiwarb, in lli<^ pui>)ic (irtsons of
Antwerp and Orlcance, antf several t>ditr
?es ; and iboo^h hi^ tlitbcr, out of bis
ifal euui passion to hint, dtd cauve re-
iliiin out of thvHe prisotiAj in ivhich he
justly en n fined, be r.o sooiicr bad his
irty, than he of new invented and went
about bis viltaLnouB practice and dcbuitche^ :
and his father at la^i | that nothing
coubl reclann hiui iVm I th*- like pro-
ceiHlingH, buvitig si-^tuuuti ins iricliualion to
disbeiiJih hinip und in order thereto, having
dis|K*iied bi!% estate in fuvours of Johtj iSiamlsi-
licbl bi» %t'cttnd son ; ttie Jtoid I'hilip did there*
uptm coneene, harbour and emertaiD aiie
hftUbii niabe^: and prejudice against the said
•ir James StumUtield bi^ father, and most
harbaroUKly did deelire, ihreateti and vow iit
•ever^l times, that he wmiUi rut his threat:
atid purt^cumrly upon the tirst^ srcond, or
third, or reummnt days of the iimntb* of the
into priaoti in ili«s town wrhere bo dwelt, and
not to I • I) until his fathcv interceded
with tl laUai f«*r bim, and that be
ahAuld »uxu M^iM- hU father's paidou openly."
1 F«ttlit» Dec. 834.
year I6fi0, witbitt tbe bouse of Jamea Smith an
K'uu^atc or Hadibngtoun, and upon the first,
second, or third, or one or other of the days of
the months of January, Febrnary, March, auil
remanent months of the year 1687, wiUiin the
bouse of James Haikbic fermorer in Nevv-
Milns; and within bis fatiier's own house of
New-Milns; and in the house of Wrlliam
Scot there; and upon the lirsl, second, thirds
or one or oilier of the *hy9 of the monibs of
January, February, IVlarch, and remanent
months of tbe year of God 1C«5, 1684, and
1685 years, when be was both in Briisscls and
Breda, and ecvenil other places, both in Uol*
land antl Flanders, and in prisonjj, within
whrch he wa$ detninetl in the city of London
and iSouthuark, or upon one or other of tbe
tiays, of one or otljer of tbe uionlhK of the aaitl
years, or either of tbrtn, U1o^il wickedly, nn-»
noturally, and hillerly rail upon, abuse and
curse the snid sir J:<mes Slanihfield, his na-
tural and kindly parent* And being Irans-
(lorted with r."tge and malice, he did, contrarjf ^
to the lifrhl and ties of nature, nor once, but
often aad frcquputly curse his father, by bid*
din^, and praying the devil to take him, and \
tbe devil rive hiDi^God damm bin), and sweaff '
if he had a sfiord^ he would ma it throuccli.]
him, and if ever he come to Scotland, hmt
would be avf*nged upon him. And particu^j
larly i][»on the day of November last^J
wltich was tbe last time bis father went tm]
1 'Edinburgh, be did most impiously and unna-
turally imprecate, God let him never return,.!
and God let him never f^ee bis face. And frr*. J
quenily when he faw bi.s father's diet taken lO'I
bim, he mftnl to tay, God grant he may choak f
upon it ; and at other occasions, wncn bis i
father refused to cat, he was in use to say^ I
God let never more be in Uh slouiacb Umo was 1
in it Ihen. And upon tJje first, second, or j
third, or one or other of the days of the monlht J
of September, Octolier, or l^iovember, Inst bj]
punt, or one or otherof thein, his mother herngf I
recovered out of a swond, and having sanl to j
him, Philip, ye will shortly want your mother,
which wtU be a gentle visitation to sir Jamea
your luibcr. To which he did answer : by
'wiy soul, ray father shall be dead bciore you, 1
mother; and about eight diiys alter, be \i\Httk\
tbe like <K;casion dtd review tlie same worda : *
as also he w as in use to declare, that though at j
present he bud neither cloalbs nor money, )ei J
shortly (anil nobody did Ihiok bow soou) baj
vvnulrfl.i' l:\ird of alf, and then would use other I
tbf'y <ltil htrn now: and at other}
i irrd, that bd'ore Cbristmai* l»e would^J
b« laird ot all ; which cnrses^ nod imprecationapf
he the snid pi»ilip Standsfield, by a continua||
Imbit used, and rej»eat('d the^e wvifral ycoF
by paMt ; and litcly 8on»o few mt>titba or week
iH^fiifr hi<t father*ia mtirder. And not soti»tie
I herewith » the >sajd Philip did proceed to thd
degree of ' 1 eioelty, and inahijiou
Hpire and ^m^t bi« father, that up
the firsl, M* r...» ..jird, or one or other of
day« of tlie fuoaibs of Jauuaryi February,
1375J
♦ JAMES II.
Trial afPhiKp Standsfidd,
[1376
March, and remanent months of the years of
Go<!, IGHO, 1C81, 1682, 1683, and 1684 years,
or one or other of the days of one or other of
the mouths, of one or other of the saids years,
he did attempt to assassinate, and otfered vio-
lence to his father's person, and did chase and
pursue him upon the kin^i-'s hifi^hway at Lo-
thiau-hnrn,and did fire pistols upon his father :
and likewayes upon one or other of the days
of one or other of the months of one or other
of the years of God above specifietl, Isc did at-
teoi|)t to as-assinat his father for bis life, at
Cuiterallors; and did fire pistols upon him:
and his father heinp afraid of his life, and
nnder the apprehension of violence, from the
cruel and b1oo<ly hands of the said Philip, his
unnatural son, he <iid to several persons lH)th of
quality and entire reputation, dec'are, that the
said I'hilip, his son, had both attempted to as-
lassiiiat and offered violence to his jierson, and
tbHt he was devising* and ^ontrivin^: his death.
And the said sir James Stnndsfield his father,
having upon the dav of November last,
^one from the city of Edinburgh to his own
bouHe uf New-IVlilns, anfl about ten o'clock at
Bi|!:ht, or thereby, having gone to his own
chamber, in order to his n-st, and being alone
in the room, under the c:redit, trust, and as-
siiranee of the snid Philip his son, and his own
servants within his own family ; the said Phihp
did coiisldt, and advise, and' correspond with
some other |>ersones, within and about the house
for thetime,toassassiuat and cruelly murder his
said father, and particularly with Geo. Thom-
son in New ]\]ilns, and Helen Dickson his
siKHise, and Janet Johnstoun spouse to John
Nieol>, there, in the house of the said George
Thomson many times, particularly the Satur-
day's niti^'ht innnediat«ilv preceding the muvder,
where he cursed his father, and sAid he should
shortly make an end of him, and be master of
all : and aec(ndingly he and they did murder
and strai)t>ie him in his bed-chamber, and in
the dead tiu»e of the night, <lid can'v and trans-
Eort him from thi* said room to the water, near
y tbe h(»nse, and laiil his body down upon the
water side, and tied a stone about his neck to
make him sink in the wiiter; and before he was
thro\u*n thert'in, he went bark with his ac-
complices to Littit Kiln near by, and constihcd
and advised whether it was m<;re lit to throw
him in the wator with the stone about his neck,
to make him sink, or to take away the stone,
lest when he should l>e found, it might there-
by appear that the stone had been tied by some
other hand than his own ; and at lust resolved
to take away U)e sror.c, and throw liis body in
the water, which they returning, did accord-
ingly : and some pei-sons being acridently ly-
ing in the house-at the time, did hear a noise
of many tonijnes and voices, to their great
terror and amazement ; and the next morning
very early, some of the servants in the house
having come to the room where his father did
lie, and having missed him out of the room,
gave notice thereof tf> some others of the ser-
▼ants. He dociarcd that ha had bean seeking
bim about tbe vrater-pools; atid* a noise and
cry baring arisen, search and enquiry wu
made for bis said father (and by him seeminc^
amongst the rest) : and after some time nis
body was found in the water hard by bis own
bouse, and being dead, and bis neck broken be-
fore he was thrown in the water bis bnty did
neither sink to the ground nor receive water (as
all drowned bodies are in use to do) and be
knowing where his father's body bail been put,
went on the sabbath -morning directly to the
place where his body was in the water, and
stood a considerable space on tbe water- side,
directly opiMMtite to the body, with his eyei
fixed on the same, bef .re bis bo<-y was foand
or knowen to any others than the murtberers;
and when John*l*opping (a stranger) passing
that way, and ignorant of the whole matter, or
that sir James was amissiug, called to him,
and asked, uho that was in tbe water? He
made no answer, but went away from that
place strait to New irliins, and gave no intima-
tion to him, or any other person what he had
seen in the water, but appearcfl surpri/eil when
his l>ody was foumi there by other persons;
and his father's body being taken out of tbe
water, the same was, by his order, carrieil to
a dark ont- house; and though he was desired
by the fVi<>nds and servants present, to suffer
his father's dead body to be carried to bis own
house, and kept therein, and not he buried till
his friends in Edinburgh, and elsewhere, and
physicians in Haddingtonn, or uear by, might
see the same, yet he refused so to do, and
caused bury the dead body of his father pri-
vately, and in haste. And the noise having
spread abroad, that his father had l>een bar-
barously murdered by him, and his aei^ni-
plices, order was given by these in ai^thority,
to cause open the gi'ave, that |iliysiciaiis and
expert chirurgions Uiighi inspect his bo<ly, and
make report anent tljo truth of the luattrr :
and accordingly, by the report of the saids
chirurgions who inspected the body, it did ap-
pear, that his said father was cruelly strangled
and murdered, and not drowned, and that be
had been cast in the water of purp(>se to con-
ceal the same. And when his father's dead
body wassijihted and inspected by ehirui^iuns^,
and' the clear and evident signs of the munit-r
had appeared, the body was sewed uj), and
most carefully cleaueil, and his nearosi rela-
tions and tViendsj were desired to lift up bis
body to the cottin : an«l accordingly James
Row, merchand (who was in Edinluirih in die
time of the murder) liaving lilted the Idi-Mile
of sir James his heal and shouhle.r, jmd the
said Philip the riglit side, his fjither's My
though carefully cleaned, as said is. so as the
least blood was not on it, did (at.ording to
God's usual method of discovering innnli-rF)
blood atresh upon him, and dctUvd all hi*
hands, which struck him with siuh a terror,
that he immediately let his father's head and
body fall with violence, and fled from tbe body,
and in consternatibu and confusion, cryra.
Lord, have mercy upon met and bovred hiitf"
1377]
Jot the Murder of his Father,
Itif dofrn <ir«r a smt in the church (where the
0Orp were Inftpecleil) wifiing' hU iatber's inoci-
oeoi hlood oA* hb own miircteriii£f haods upon
hit elrKdlt^. By all which it is mtnifefll, that
he did ino^t traiterously ex^jreaa hit hatred and
malke to liis majesty^s «aemt peraonf by wish-
ttif( and (Innkin^ to' his coofnsion, and CRUsini^
otben to do the same. And likewiso, that he
did Dili only uttnaturatly cnrse, invade, aUemfjt
to MSAiisinaic rir heat hit said father, hut under
trust nnd aflKurnDce, barharoosty and traason-
ahly did strnn^le, kill and mardpr htm in man-
ner lomaid, atid is actor, art und fiart of the
fortaids crirups, or one or other of ihem, which
bcinfC fiiuiui liy an aatvie, he nu^ht to he
punished for the tr«MOoaAb crimes .ohore sfie-
ciliifd^ with tbrefauUure of hfe, lands and
g<aod9, and ftif the other crimes above-nirn-
tioned, CJifiitriJly. and with Hip paiu« of doHth
and conhsojititm of touveablc-9, in the terror
aiid example of oUicxs to commit the like here-
PunuerM. — Sir John Dalrymple, younger,
of Stair^ his Majesty's Adrocat, Sir George
Mackeujfie, Advocat,
Proetirniort in Defence. — ^ir David Thoirs,
air FaiTidc Uiune, Mr. Wdliam Mouiepennyt
Mr. William Dundas.
The iVimars procm^ators j»roduce«l two war-
raud« of jinvy council, comiiiainiitif; Ihem to
compeir and plt^ad thepaunjil'ii defence.
8ir Pat tick Bume fr^r the pannal (ahvoys
denying' the indytenient. and whoh? memheis
and ((Utt lifted lions ihert^of ) aUea>l|Lj^e«^ Tiiat as
at to the R4SI purl of the indytemenl, in rela*
tion tfj the drinking tin health tu the confusion
of hissacfcil inajeslv^ us it is most cafuuiuiuuii,
90 ll IS not to be supp^isi'd, ihut iiny mao iu his
riarht wiu would haielieen {.fiijlly of unvh a
' and it i^ jniMlively ofTeieilto he proven,
or alMMjt the iunV HWKcd, and ^eveial
t fore and afkr, the *h'fcoder did most
aid cliforttitly rn ieverjil corn ponies
.>...,« ;l)c> kiiit^'s h( ntit), arid itjH^n ull orciiiiiuns
he wft?i tvmiy lo trhtij v tiis lo\iilty to the king-,
;ind n.irlii ll ii!i iht* tiiit of ihf iuvaNioii hy
i.nmonth in England, t% here
> if vidotilarily a »ouldier in
thr eiiri of Dunihaifon'^ re|;iti)eiit, aud cuntl-
nurd in th*' klnn;'*! army im the rebels were
d«fieat| and the Vf>hmiierk dlsmi^iied.
Aa to the second part of the hH«1 in r^^i iiiom
to the pannalf hit (illtftlj^rd c:c):i lid
beinL' L'utltv tti\ nnd acees€arv i^i ir
en ll, nnd Ufut^ d>
tenlcd aud entvrtmoe^l mai his ia- I
tiiar^ and thtit He declared lu <hat hn I
Wipnid cut S ' and thm
against, aail utJier, h^ n.
^ 'oos^
ta an«wered« primo, That it h ahsolutely
' ^ ' was guilty f»f^i»r acre* ■
it crime abroad I or put in
VUU XL
prisofi open that account ; nor b tliere 90 mucb
as »oy crime condescended upon.
^. The defeoikr could not conceive any
prejudice a^inst his father, upon the aocounf
of disponinp^ hia estnte to his second son ; tor
he knew nothing' thereof fill afttr his father^s
decease, that one Alexander AiwRlie told liini
thnt his father had made such a dis{>ositian.
3. As to the pretendfd expressions, that the
defender should have hafi of ratlini^f, cursing'^
and usin^ imprecations nj^fainst \m father^ in
so far as the saoien are hl)elletl to have been
done abroad, in Enfi'land, Holland^ or other
pface«r, he cannot he Tyable to the pimishment
mulcted by the law of thi^ kin^lom, bfcniine
when a party commits a crime in nnother na-
tion, he is only to be punifihed accordrng^ to
the law ol' the place where the crinte vfm
comnuttetlf and not accordiM^- in tht- law of
the nntioft where he i^ a suhjr?et, or has his
dwellirijif ; As is cl^ar hy the c^ommon law,
authentic Cofh ' Ubi de eriminibus agi opfirtet,
' Qu:i in firovincia qnis drlimpiit, aut in rjna
* pecuniarum aut <Timiniim reus sit, si*e de
* terra, sivede terniinii^, ui?p dp nnvsf>sKi'iii.%
* sive de proprietate, sive dc \i\ -t
* alia qtiaiibet occasione, vel df >
* ritreus, illicjure subjareat, (jiiml jus est per*
' pctuum,* In that nation where any person
commit* a crime, or In liable to answer npo^i
any account what^omever, hr h to he joda;^
by the la^v of tlmt phice, whit-h is established
!i« a perpetoal liiw ; and >1altlieuH de Crimini-
huD, in hi<« title, De Pcsnis, is es|iress trf the
same opinion.*
4. V' " iV- _.-*--i ,^ e\pies«tonR oT
railir /JificlliMl, that'
wer< Iffi^nder is se-
en r* ! , by >vhpch all'
crinu . „. . :. .,, , . .ulr.ji< that time,
a^inst the g-ovemmeitt uni\ laws.
5. Astonrn pnlrmlH expressions of rail*
11)2^ and ^ ce that lime, itiev heinj*
but injur J' i done to the ititlier, he*
mi^ht an<l did teiiiit the ^arneti, in so far he did
not challr^ncre and pursue the same 10 his own
lime ; and this is clear from the common law,
Carpzov. part 9, f|i»e«i. ^'>. ♦ Actio autem ium**
* juriarum nee a iv^ in Ha?redc9^
t transit, etiaaj •'* injuries iflfoo--
* raverii/ lustmit uo, j, m. 1^, par. i, * De
i peq>etuis temporalibus action.' Le^« ](l,
♦ *♦ For uoderstaodin'i,'* says Mackenzie/
<* wha is jud^e competent, in fj#*neral, t©*
punish crimes, and what foundi^ I lis cotnpe*
f?ti<\v, or as the civil law and doctors Fpeak^
h1 esit forum competent,* it is fit to know",
he who commits a crime, may be judgcfl*
crthor in the place where the crime was com-
Tivftteff, which they call * forum delicti com-
si/ or iu the' place where he was horn,
!i is calli^d * forum origiiiTs,* or in the^
piaco whe?e ho dwella, which rn do-
* fiiicdii/' Sae IVIitckenseie's < part
3, tit. 'i, througlkOiit. Skr, also, tiume • t'oni-
mentansa) pari 3, chap. 1, i« 4.
4T
1379J 4 JAMES IL
far. S, ff. ' fi quit caatiooibni in jodicio tys«
« ten.* And Leg. 13, ff. « de iojuriis, iojuria-
* rum actio neque bnnedi neqoe in bseredexn
* datur:' As alio it is a principle in law, tbat
* dissimulatione tollitnr injuria ;' and if it could
be made appear, that the pwinal bad any such
expressions, tbe fiuber did diasimulat aiid pass
from tbe same, in so far as by a letter, dated in
June last, written bv tbe father to tbe pannal,
he orders faim to taLe in bis chamberlain ac-
oompts of tbe rents of bis lands, and of any
money be bad recei?ed from tbe tenements, or
for the corns sold, and tbat be expects be will
4I0 tbe same exactly, and recommends to him,
to be careful of all bis affairs, and subscribes
himself to be bis loving father. By which it
is evident, tbat all former differences (if any
were) betwixt them, were then taken away.
As to the third part of tbe Indytement, in re-
lation to the several acts and qualilicatiuiis in-
sisted upon ; to infer, that the defender had
accession to his father's death : It is answered,
primoj That the indytement, iu so far as it b
ibuDded upon tbe 5l8t act. par. k. Ja. 6, in re-
lation to the murder under trust, which is de-
dared to be punishable as treason, is not rele-
Tant : because the father cannot in law be said
to l>e under trust and assurance of the son, and
that act of parliament takes only place in cases
where a man is invited to his neighbour's house,
or of a traveller being in an inn, and tbat be be
murdered under that trust ; and the same act
of parliament beinff founded on in tbe case of
Swinton, who killed his wife, in tbe year 1666,
the indytement was restricted to simple slati^-
ter. And iu the case of master James Oli-
phant in the year 1005, the lords of the ses-
sion found, that a son killing his mother, was
not murder under tiust, and so he was not
piinishuble by that act of parliament, as guilty
of the crime of treason.
a. The acts and qualifications condescended
on to infer the defender's accession to his i'a*
tiler's death, are but very remote and uncer-
tain ; for as to that expression, that the de-
fender is alledged to have liircatened his fa-
ther's death, it is the opinion of all lawyers,
who have written upon the subject, that that is
but a very remote presumption. And as Carp-
zovius expresses it, part. 3, quest. 121, numb.
51, * (luod est indicium admedura periculo-
* sum, quip[)e cum homines scepe nil minus fa-
' ciant qiiam quod minas execpiantur et iracun-
* dia a^itatus minas de crimine perpctrando
* sepe jactct, ipso tamen animo fervore paulo
' post discusso, cohibeat manus, et abstineat a
* iacinore illo quoil f'orsan ab alio postea com-
* mittitur. And Paris de Puteo gives an in-
stance in his Tractat. de Syndicatu upon tbe
word tortura ; and Boverius, That a woman
seeing a person going by her window, against
whom she had a prejudice, and that another
having a hatred agaiust her, and bearing that
abe had threatened to cut off that person's len,
the part^ that did hear the woman nsa the
threatenmg, did the thing ; upon which tbe
woman that did threaten, being challenged,
tad put to tbe torture, did confess ; yet tbtr«-
Trial ofPhOip Siamd^Uid^ [ISBO
after it was found, that she was rilagvlhar ia^
nooent, and that another had done it.
3. As to the pretended acts of tbedefcodv's
alledged ponomg, and invading' kis ftther, ai
tiring pistols at him, at Lotbian-bam and Od-
teraUors, in annis 1683 and 1684. Aa it ii
most groundless, so, if need weie, it ooold k
made appear by the persons who were in eois*
pany with him at that time, that the delndar
and bis father were then in entire fiiendihip
all alongst the journey, and be was ao hr firoa
making any such attempt, that it can be nade
appear, tbat tbe defender did behare himself
towards bis father with all the submiasion sad
respect tbat became a son to have to his fttber :
But as to these, and all other acts, pi«eeedia|f
March 1685, the defender is secured by tbs
act of indemnity, and as tbe defender esa-
not be puisueJl for any crime preceeding
tliat time, neither in judgment nor out aitfa tbs
same, they in effect Iwing no crimes, beisg
taken away by tlie act of indemnity, thej caa-
not be so much as made use of aa quahfieatioBS
or aggravations, to another crime posterior
thereto.
4. As to that pretended qualificatioB, that
when the defender did touch his father^ dead
body at>er it was taken out of the giate^ the
corps did bleed.
It is answered, that this is but a sapenti-
tious observation, without any ground either
in law or reason. And Carpzovins relates,
parts, quest. 122. numb. 31. That several
persons u{K>ii that ground had been ui^ustly
challenged, and that he in his own experience
had seen a dead body bleed in presence of Ae
person who was not guilty ; as also that he has
seen the body not bleed iu presence of tbe per-
son that was guilty. And Mattheus de Cri-
minibus, is of the* same opinion. Tit. 16. de
Uufcstionibus, numb. 1 2. ' de sanguine porro d«
< Cadavcre profluente quod dicitur id de plu-
* rimis e\'[)eri mentis comprobetur, tamen cuoi
* cxperimcnta falsa sint ; ratio vero idonca
* nulla reddi possit, non putaverim indicium ad
' torturam sufficiens esse ; non enim sapientis
' judicis est incerto experimento credere quod
* ccrta rationc dirimcndum est.' And the truth
is, the occasion of the dead body's bleeding
was, that the chirurgions that came out to
visit the body, did make an incision about the
neck, which might be the occasion of the bleed-
ing ; and also the very moving of the dead
body, when it was taken out of the grave, and
out of the coffin, might occasion the bleeding;
especially seeing the body did not bleed tor
some time after, which certainly was made by
the motion, and by the incision : As also a
further eridence, that it could not be tbe de-
fender's touching the body, the cbiruigioos
did likeways touch tbe body as well aa he, and
several others present ; so tbat the bleeding
could no more be ascribed to bia touching, thaa
the touching of the other persons present. *
» See in this CollectinD tbe stranga Case sf
Jane NoHcott, taknfiroaitftMPa|p«asr«r JqIm -
Mayaard.
for iht Murder qfhi$ Father.
A. D- 1688-
5. As to the other wrliclc* Ij^bclled, rdotiiifi^
to the pretended murder^ they arc- l>Mt tneer
stones, and the truth is, and it b otfered to be
proven, that the tlcfender baFtni;^ gone to his
chamljer and hc-d the fiig'ht bt:f(»re hi^ fat her 'i>
death, he did not stir out of his bed nuroul of
the roum till the next morning that John Ro-
bertson bis father^s 8er%ant came to bit cham-
ber, vrheie be wai in bed, and told bin>, that
be had been m his xnaittcr's roum, and that fie
csould not find hini. Upon which the defeiider
immc^diatL-l y arose, and put on his ctoatlis, and
iwent out to see where his father waa. Aud
ftliortiy ader word beings brought him by Bome
person in the town, that they did see hi» fa-
ther's body lyinsr '" t^*<^ waier, and it being ge-
tieralU* conduded by all, that be had thrown
himself in the water, and the body being l»ken
out, and laid in a low room, it was thought tit
by all the neighbours about, that he should be
buried the next day.
6. The panic ulars lyhelled to infer the de-
fSenderV access^ion to his father's death, being
but remote and uncertain conjectures, it is a
certain principle in law, that *■ ex pvaBsump-
' itonibus et conjecturis nemo criminal iter '
*coridemnari potest,' especially as to a ca-
pital punisbment: As is dear 'from the com -
fiiou law, leg, 5. * Digest, de points, sed
* Dco desupplicatlonibus debere aUc|uem dam*
* nari, satiu^ enim est Impunitem relin(]ui faci-
* nus nocrntist quam innocentam dauinari/
And wlitiih is the opinion of nil lawyers writing
upon tbt? Fiitbject : As Bartol. upon the foresaid
law, and Furin, pari iJ. ifper, Criui. Qu*est, H6.
•nd the lawyers by him there cited. And
Muscsnl de proh, Conclus. 2'25, lays it down
as a certain conclu*iinn, * tpiod nrgumenta qunn-
* tumcunipif' iuir<*fivis,sitna, etiauiFi e.vsent talia
4 qiin Tn. 4 u'ln iiiJltantis adfco coactarent qo*-^
* i', I't* non possit, nun tamen ^ulfici'rent
* a: 1 1 . hatiouero pcenic coqioralis sed dun-
* taxat pecuniariv/
7. liie presumptions and qualifications ly-
belled, cannot be sustained even to iuler an ar-
bttmry punishment; because they nuiy^ and
«re taken off by other presumptions, thatV'tth<?r
the father was not murdered, but that in a
frainxie, or melancholy tit, be had thrown hiui-
•df in the water: or, at least, if be was mur-
dered, that the defender had no accession
ttieretOt and the presumptions coudescetided
Upon iu liehalt of the dt'teuder, eleid the pre-
ismptionst!ontained inthe indictment, arethesei
that it is notourlie known, timt his father was
•ub|ect to uirlanchidy fits, and that iu the year
167 J>, the time of Hutliwell Bridgti, it is oileretl
to be proven, that he ua.<4 in a fit uf distraction ;
and al another time in Ink hnuiie at the Nether-
bow, be was going to throw himself out over
the wtndoir, and ofie Thomas l/indatl had not
euioe in at the tirne^ auti putltni him Uck by
the legs^ when his body was half out at tbe
window* And some few days befon; he went
eul of Edinburgh lavt^ be came to George
IMHw^, chirur^fion, and desirt-d hitu to dr«(W
UtodoFbioi, tora duit^mtier io bis lieadj which
he refused, unfess he had adrice from a pbys
cian. As also a day or two before be went oiil
ot^thc town, he was seen reading upon the book
of Burtoun's Melancholy. And that day whe
he wp-ut out of the town in company of Mf
Bell the nunistc'r, and Alton, merchant in Hud
dingtoui), they observed him to be melanchol
disoi*dered, and more troubled than ordiniiryj
or if it could be made appear, that the fathe
was murdered, jet it cannot be presumed tba
the ilelender had any accession thereto, or that
he nould have committeil such an act agaiotft
the ?fry ties and light of nature* As also it
appears by the forsaid letter^ written to the de-
fender by his till her, that tbey were in en tin
friendship; as also when the surmise wea
abroad, that his father bad been munfere*!, if li
hod been conscious to himself that he had an|
accession thereto, be would have certainly fle
the country, and gone away. But he was i
far from that, that upon the first rumoirr of it
he came presently into England, and seven
days thereatUr, tt being told him, that he wa
suspected to have accession to bis fatber'i
death, he came Tolnntahly and enteit^d himseH
in prison, that he miifht "undergo the strictest]
and severest trial : %vbich alone is sutHcipot if ttl
were no more, to take oil' all the p^esum^lliol^fjl
lybelled, and to convince the world of the de^ J
iender*s iimocence; and it being a principle
law, that ^ una nrce^umptio toUit aliam/ tha
presumptions adduced for the defender ougbli
to be prL'ponderat. I^Iu^ard. Conclus. \W5l
is positive, that * prisesumptiooea quse stanl proPj
^ reis pripvalent/ j\s also that ^ pn]esumpti#j
* atleetionis naturotls pncvalet contrariis pn
*■ sumpiionibus.* 8o thnt upon both the«>ec<
sideratioiis, the presumptions alledged for !
'lefeuder ought to be sustaiueil, to take awaj
I tie presumptions lybelled, and to free lum i
the crime.
His Mnjcsh/U Advocate answers, that tbi
libel consists of three articles, 1. treasonjj
by tbe (lannars drinking the king^s confusion^
and by the murder under t rust. 3. The* cursing*!
of a parent. 3. The qualifications inlening th« J
pannaPs accession to the murder of his lather*
As to tbe first, it cannot be denied, but thalf
tbe drinkint^ or wishing confusion to his ma«
jcsty, is the highest act of contempt, maliceij
and disdain to his royal {lersoo ; and as the re^ I
tevancy of this article is not expretsly contm^ 1
verted, so the atrocity of the act, and th«-|
forcing others to do tbe same upon the C(unmc)ii4
f; rounds of low, does clearly infer trf-*^'^'* iii«d '
It cannot be expected, thut hu« h t t
words should either be expressed or p y
(irovidod afuinst by any law in eitpress terms {4
but the nature of the words in express teruia I
of our law discharging all speeches to thedis^ j
dain of UiH majckty , the contempt of his authfi*^ |
nly, do clearly and nuiuridiv comprehend tb« I
Wfirds lybelleil, and by the couunon law, * Ad |
* leg, Jul. Maj. crimen liriui* Majrwlati*! ad el?
* emphun b't^ts M'riptie est vindtcaiidum/
And whereas it m pretondtnl that tfuse wordj
were inadverteatly said^ and that it apjiears I
1383}
4 JAMBS U.
th^ tract of the pmnal't life, and his
to engage in his majesty's aervice, that the
words cuuUI not be delibmt and malicious : it
m replied, that it is offered to be proven, that
the drinking confusion to the king, was openly
mud plainl V proposed ; and tliat the pannal did
deliberateFy send out for ale to drink certain
healths, and that this health to the king's con-
fusion was tlie first or second, and that it was
no lapse or mistake in the expression ; but that
he i'urced others to pledge and drink that same
heahh. And the malice and disloyalty is evi-
dent, by the healihs subsequent, viz Antichrist's,
&c. and it is not at all relevant (after the reite-
rate and deliberat expressing of these words)
that he had retracted oi drank the kind's
health ; for a crime once committed, is not re-
tracted or taken off bv such inconsistent and
unconsequential speeches. But to shew the
sense the pannclhad of the importance of his
own words, the punnal being- informed, that
some of lite persons present had divulgefl his
having drunk the king's confusion, tlie paniml
' did conjure tUein to secrecy, aud did menace
the witnesses with a ^reat cane, that he would
beat and braiu them if ever ttiey told it.
Whereas it is answered in general, as to all
crimes eommiiied without the kiogdom, that
they canuot be cttgno^ccd or punished here : it
is replied, that as lo crimes i>;raiost nature, or
the la«v of nations, as every party is competi-ut
to be an accuser, so every judicature is compe-
tent ; and therefore as to the crimes of treason,
or cursing of uarents, wherever c^immitted, they
are punishable by the justices : but because in
relation to the crimes oommiited abroad, there
is not positive prolvotion, but declarations and
testimonies ; theteiore as to these crimes, his
umiesties advocate does not insist ou tlie/n as
distinct crimes/yi^rie, butas qualifications, docu-
ments, and evidences of the habitual debauch-
ery, and unnatural malice expressed by the pan-
nal against his father for a tract of many years.
Whereah it is answered, Thai as to all crimes
preceding 1C85, they are taken off by the in-
demnity *, it is replye<l, the indemnity 1C83, is
no general indemnity, neither as to persons nor
criit es, but particular crimes arc remitted, and
particularly enumerat, without any general
clause: and as cursing of parents is not parti-
cularly enumerat, so by the nature of that
crime, it canuot be included or comprehended
in any general indemtiity : and the words of the
act of |>arliament, ^0 uct. 1. par. K. Ch. 2.
bears €\\pn?ssly, * Tuai the cursers of parents
• shall be put* to death without mercy.* So
that a j^eiieral act of indemnity, or "mercy,
without a special remission, coufd not include
this niine, uliicii, as the act of parliament
bears, is expressly ai^iiinst nature, and the law
of God : and by tlie opiuiou of ali Uwers, ge-
neral indemnitK'M do not extend to ali crimus ;
but these ci lines which are called in law
* Crimina exctpta,' are never intended to be
iude. unified, nor such crimes, where the in-
terest ot ii^rties is more than the interent of
publis justice ; and in all foroMr imd geoeral
Tfidl ofThiUf Sbtnd^idd, ^[im
indemoities, miirder and othflr crinMi «« fv-
tioulmrly excepted with a general clause, ci^
oepting all aueh crimes as use not to be cmi-
preheuded in general acts of indeainily : m
that this so horrid a crime, wherein the pamt
was more interested than the public, ndtlar
was, nor could be comprehended under a p^
neral indemnity : as also, that reatricied, i*
mited indemnity, bears expreealy ^n exoncm-
tion for all persons below tbe degree and fv-
Utv of an heretor, wodsetter or burgnas ; aid
wnether the pannal were an heietur or not, yal
it cannot be said, that be is brtow the degiee
and quality of a wodsetter or burgess; aad
therefore the act of indemnity in of no uae H
him.
Whereas it is answered, That air James was
reconciled with the pannal, and wrote kind Icl-
ters to him, whereby, tUssimuiondo foroner in*
juries were taken oft : his replied, I'hat iiyn-
ries are only taken off dUsimuianihf which am
not atrocious, but never specidok crimes,
wherein the discharge or exprewa renunctatiau
of the party injured cannot be liberat o tnadids
publica, the punishment of crimes, eaiieciBil|r
in capital punishments, belonging to tne ma*
^strat ; and the privat party baa not the aolt
inteiest, nor can dis|)ense with capital pvnisb*
ments : but the letter founded upon, does not
in the least infer the party's forgtveneaa or dis«
sim'u lation of the injury. And a farther order*
in^ his son to call in for chamberlain aoeooiplii
wuhout imuowering him to diachaige ibe aaoie,
is not the least evidence of confidence in Us
son, much leas a remitting of hiscsrime.
As to tlie second article, in relation lo the
cursing, it is positively offere«l to be pruveo,
not in single acts, but by a tract and habit af
cursing his father, in the most abominable
termes imaginable.
As to the third article, in relation to the
murder, that this matter may be clear, *■ ei nt
' constet de Corpore delicti,' these undoubted
3ualific*ations are offered to instruct, that sir
ames Standsfield was murdered and stranfi:led,
and that he did not drown himself. 1. It is
oilered to be proven by the minister, that was
that night in the house, that Ions? after ten
o'clock at night, and that sir James had re-
tii^d to the chamber, where he lay alone, the
mini!»ter heard the confused whis|iers, mur-
murs, and noise of several persons, both men
and women, which affrighted him ; and that he
heard the noise go a way by the back-side of tbo
house, which leads directly to that pool whem
sir James his body \> as thrown in the water.
'2. Sir James's bod\ uas found Kwimmiug
aliove the water ; and albeit it appeared by tbtt
ice upon the top of his cloaths, tliat he had been
several hours in the water, yet there hud no
water entered in his body ; which is a demon*
stration, that he was dea<l before he was thrown
into the water ; for a person thrown alive into
water, drawing in of air and rea|Hration, bring
in the water, he must draw in water ; and if the
person drawes in as much water, an filk biacon*
GiTitaei be becomw baavj, bn? inf to murb
iS85]
he Murder t>fhii \
more fi>«i|^ «>f WRt<"r» anfl therefhre be *iftki :
lMit»rii |»ei'Soii Iw fhmwii rleuil into lUe i^iiier,
^bcn tlie i*ltt|> nrhiHtUrnat j» xtiut, the %v«li<
•an I . unil tl»erc beiiif^ ao muHi enipti-
It^ V H lij^lil, bnd {«up}iArteil hy more
|)i4ti^ in %»ijit-r, il*nn \he ' r rthehmly t*on
dtfjfrrsH. 3. 1'Keit? b« 15 I chinirj^eons
anit oihtrm Mem uut li\ '>i..i, .lutn aulhorit)' to
tHke i»i> »nd in'<pecl the body, to see wbether
ihef*' W!i4 any cviiletict! of atmntflinf^ or other
•yiii|Uoiiis 111 nitirthr upon the \m*\y ; itrhcl ap-
|je»r tti all ttiese person?*, whodkl dewmct>efnre
tt i«unHniitec of the privy council ThftI tn>fn
the oi>e jti^o Irtr vein to tlie other round the tieek,
there ii*»?» a tumour of congealed blaek bruised
blood thi'ee iiirhe» bnmd^ and tJiat there was
coogfcttkd blooti in the throat ; upon which
fhatlerof fact the collej^e of phyiicians, bare
^vefi an iin»nittioiis lesiimony in writing, llint
•ir James Stainlefleld vras strang-led, aud not
ifrowncHi : amt the dcaronry of the cbinjrjreoDs
bcinq^ eonveened^ baveemtUed a declaniuon in
writing, CfMtciimng and ag^ret-iBic witli the re-
port of rhf- phyBicians : so that it i^as cleur as
the hgbt of day that m James Htandsfidd vrss
wunlered.
S. For the qnaftficalionSf that the pannat
wan I he niunWn-r, or accessory to the murder
t»l* hi'* father, these rlenr evidencefi are ofl^red^
vrUivh makes hh crime wtthont pousihihty to
l*« |K»ll!irt or deuicil. 1, It it tiotorious/that
lh« poitnal is a most debauched, vitious/ perni-
cious person, and has been prisoner, or con-
#pmned in die in aTl the places or societies he
^er liaunied. He entercnt a soldier in the
Scot« reprinjent, svhere be was condemned to
die at Treves^ hiit n^ade his escape ; and hi?
beiiig tn pri'*on, in tlie Mamhalsea prisona, Or-
lliili0i» «rid Hius?icls, (nliirh makes tlie circuit
ef hi» trav el!*) are not denyetl x and bis tfrofligat
Hib and constant ilnmkeiiDei«, sin^e he came
fn the prison, is oifered to be ptoven by the
iceefiei*!« : and as it is nnnecessar to trace all his
delratjches ; so there is one rantorial point of-
iere<i to be proven, That upon the least pmvo-
€aiiofi« either by man or wmnau, the panrnt
vneit to swear by hurnd oath^, that he would
talte their lives, though he should die in the
Graw-mercat (or ii.
f. 8iT James HCandafictd #hr tll«ae de-
bmooherieii having disheHithed the pannall, and
Uiaponefl bis» estate to his second son t it is po-
■itiveJy ortVi « ' ' *" it in the Ntm*
Kile of HbiI Wh\\'h hou!«e,
epann' " uj, ui;i« imn inUcr would dis-
fa«rish ) ith him'ible oaths rawe<1 to
<m hilt i^.,.v , . viiroat.
And whetifas it ii answeriMl to tliis qnalifica-
Ijoii. Til it ibe "ituvi riff that a son uiinMnita
i^t' ; rfmot cirri it
% r ivnj ixW bt jee
Wj ' juutimi,'
h .,.,;,. ; ,,.,k party's
eri<ii , > ,M LuiUy whrre kiie llir»'ar>» v*ere to cut
i in\itvi ^ tijroat, which of itieif was so horrid
mtitl tmnatuTal .i viilaoy, that it cunnot be
^MiN&il hf ^vho ^urst tow it, wanted but an
H.D* 1668. [I3S6
orwislohlo "let it» And it ia flieknmtWtT^pi
that thouifh lhi«s be the oh^ rent pr .,1
yet ptr $f^ It t£ not luH probntioo : t "i
ihc son had both vowed nnd i ' i i>yj
an a<?cident he unght have betMi i : bAl
the presumption at b ' ' ' ^f
except the paiuml ♦•<'i
ment, thftt some otbtf i^ti^^r,, .^..i. i< ,.1-1 ,a.i,<.^yj^
he mu^^t be repuied tlie murd»*ter,
;j. It is oftered to be proven, That Bir Ja
Slandsficid, who vva» a penioo of en»!Oent 1
bri^'ty and vernrily, did declare to several [
sons, that his nnnatural «on had attempted hitpl
Hfe, and offered riotence to his |Mrr«ori, ttri4 f
particularly, thut be hud pursued him on hor«e« 1
back, and tired pistols on him ; ami I hut suin#.i
Friday before sir Jamea \sb^ murdered, be tli^ [
declare that it \vns not bis debu, or any iliinff 1
undf^r heaven t}mt troubled him, but that hS 1
son and family were plotting and o«*niri*ing hit ]
desf rfiolii»D ; and the neii night be was tutir^ |
dered.
3. It is offered to be proven, that the pannat't I
mother declared, That her non Ind ^oweilto^
be his ftiher's dca<b, and I hat he **as a viitdic*
live person, and that she dnl apprel^end he ha€ |
murdered him* Ho as to this article, there h» n 1
concourse of the panoaKs own oaths, to muf« i
der hfs father, and of his father and aioiher% j
ckrlinitions, that he had attempted^ attd widlj
tftill [dotting the same.
The second qnalitication is, that that Satnr*
day^s-iHgbt sir James Htund^fiettl came hoine^ 1
the ]mnnal vronld not come %vhere his falhcf
was, either to supper, or prayer ; ami betng^
exnre^ly <*esirc<I hy sk^^eral persons t ■ ' ■ ■ \
father, and speak with him ; hr dct 1 t
same night he was m«nk»red) he touin mu cn-
dore to see, or )o«)k upon biii father; and he'
htid beeti all that day cIohc uilh Thomson atii^ j
bis wife, at^d Jdnet John»toun. Stj after {
hours at eren, a(%er the faitnly was gone U/A
bcti, he came out to ThomMon'N bouse, wlricHf J
is hattl by the gate, uud there in pretjence 0IP;]
Thomson, his wife, aud Janet Johns^ti^uii, h# I
declared that his fhther would nriitrer ^ive himfi
money, nur cfoatlis, and rurvied his father, and* I
declami that he wo .h! shortly make ndd of, J
him ; whieli aajrees willi «h«t he had sereraff I
limes aaid m other comjitniej., that he wa* tc» iml
laird hfftne Chrifktmns ; and thiii be \i as ^hortt J^j
to be nia-iter of all, and none ran ihtnk hovrf
i».im lft [111)1, J Ml nil, \ i" win -nuiii^ i^tini \ ,
mottifr; to which he AuswtTed, IJv i»orf, hil
father ^» ".' •- <^.a f. r.,. I. ., ^Vnd H-Irt
days .11 sick, hfl
repent. : i*y it r« cvi-J
ilent the nmrtter was dettl*ernti^ and deieronue
n. till the Nuuday ijm imii-, iMt-ne sti'
.' * >dy w;is found i*
' liatubtT,and t<t r \
<'ut in thf m;4h>. iitui iltui U*' bM
1 Inng for him about the pwd^. ttv
null I . Villi: ; and when 11
htm fbr making aucb iosi. f J
1387]
i JAMES U.
Trial of Philip St&ndffielJf
fblbfr, he laujBThed al hirpf and went away to
the pool, and stood looking upon his father in
the vvater, but made no discovery ; and there-
aAer a stranger coming' by iipnu the highway
likewise, seeing sir Jamea^s My in the water,
he came backaud discovered ttie matter; at
which Philip seemed aurprised, and toUl that
hft had seen hi$i father's body in the water be*
fore» but he did not think fit to be the first dis-
coverer, which she^vs that be was cooscioua of
bis own f^uilt; olherways, upon the first slight
of his litiher tit the water, he would hi\ve g'otie
to hifo ; but on the contrary^ he never laid a
hand upon his father's bo<ly either to pull him
out of the water, or to carry htm into the house,
tor the dread of some extraordinary discovery,
and did T.ot allow the corps to be brought within
his fftiher^s ^tes, hut caused carry the corps
tu the wake luiln, where, to carry the appear-
ance of stran*r)iDg upon his body» ho entrusted
Janet Joiinstoun with the care of woonding
hitiit who Has known to be a person so odious
to sir James, that he could not see her for her
tasenats with the paunal, and she did acitnow-
ledge, that she had not been for three quarters
of a year within the house before ; and yet this
inlatnous strumiiet, who has li«en tortured by
order of the privy c*>uncil, as accessory to the
murder^ was chiefly iutru&ted to see liie caked
body, and the cloalhs put on J
4. The pun n a] did refuse to send for a cbi-
rurgion^ and to let his fa(her*s IhkJv besjghiefl»
though the miDivSter and others Jid expressly
demand it ; and the En^^li&hmon in the manu-
faclory, who were accjuuioted with the crowti-
er-laiv!if I hey made a mutiny aneot the
buriali till the curps were sighted i yet the pan -
nal caused fiury the corps that same night
without shewing them.
The corps bemg ruis^l hy order, and inebion
}mng made, whore by the stranghug did clearly
appear, and the corps being dressed clean, and
LiontQ put OH) there did ap|)ear no bloud ; but
to take otf suspicion^ the corps were lifted up,
and the night-cap being wrong put on, it was
altered and changed, and thereafter tha cor|HS
we It; laid down without any bloud upon the
Unuen ; and the [>unual (who to this time had
never touched his tktller^s corps) being required
to assist to hi\ the body into the eothn, having
taken his father hy the right side of the heud
with his left hand, Jamas Koiv hearing the lell,
the pannars hand was altogether blooding, as
if his hacd hud been put into a vessel of hloud ;
which, notwithstanding of all his impudent re-
solution tu the contrary, had that horrible im«
ErcssioUf and conviction upon him, that he let
is lather's head fall to the ground, and cried
out, U God ! aud run away and went to a de*k
in the church, ^vhere he by groaniug and m
COtH'usioo, but durst never return to touch the
corps ; and as there can no natural ieaM>i) be
g;iveo« but an onlinarand wonderful providence
ol'C'id, in thit( kind of discoveries of murder ;
80 i!i»: fact was never more evident, and sure :
tliotigh hntf a dozen of persons wei'e lieanng
lilt: corp4;» no mao'ss bauds were bloody hut the
pannaPs, and tlie corp being tvf> iatire dt?
m the grave, in that weather atid acosoa, t
blood by the course of nature wae become i
nat and congealed ; so that the fm nt^-T fn
and lifiing of the corps, and c% isio
itself had occasioned no such eti it oali
some water or gore ; but upon thi; iirst toucT
of the pannal, the murderer, there appeait
abundance of liquid florid bloud : Aod tDoogh
thisp^r sc might not l»e sufficient, and as Ma
the us is cited, it should not infer torture ; y
IVIattheus acknowledges that most [»art do sua
tain this, as a violent presumption oA iiomm ejt«j
periineoied ; yet in his oiiintou it is not suffi«
cient for torture, liecause torture being in ill
a punishment, it canuot be used, except wh
there is $cntipUna prohatio^ or nhere the <
science cf the judge is satisfied, as to the I
of the crime, and therefore uses an extraordia
course, to extort a confession, which provetl
that this presumption is temtpkna probatia ^
ffe, according to their own griruuds.
Aod whereas it is all«dged, thai capital pa
nishmeut cannot be inferred from coii)«!ctuic!i^l
but from clear and positive testimouies ; it if j
answered, That the * Lex ult, CoiL d^ proba-
^ tionibus,' clearly states thatprobutiou iscitbtr^
* Testibus tabu lis instru mentis docunM
*' indtciis/ And Mattheus states a par
title upon this single question, *Cap, 6. '
*' 15. de probation! bus,* and does tuosl pd««i
tively determin that crimes ate to be prof<
*■ Documentis, Argumentis et Jndiciis.* Ao
it is most evident, tliat the prohaUoii wbie
arises from the nature of the thing^, v«hirh
incapable to be soffisticate, or iinptist^t u|K»n,|
as witnesses may be, that kind <d' probatioa ill
the surest, becaURC it is always the name, aadi
admits no variation. Its true, and it la ao»l
knowledgeil that * argumeuti et indicia^ roust Hf I
< clara et evidential and prohaticKU being- * Quodi
* facit ftdem Judici,* every man's «]tperi«
tells him, that the complication and coiyuiM'
of so many evident quahtications, thougii i
of ihem per it were sutlicieat, yet being ^
them joined, it induces a greotor
than two witnesses positively «J
the fact. Anil therefore the i i 'ihi|
probation belongs to the inquest, uuu vuc r«k
vancy that these articles eonjoined, en- any p
of them, are sutEcieut to inter the crime, I
luiigB to the judge.
As to the presumptions offered fir xXw #'teill^
pation of the pannn), they ar<! •
vant; tor though so horrid a ini
he preaiuned against nature, yei bein^ i
or so strongly evinced, it does h«t rr^nciu
pantiars grtiter guilt: nv
James Standstield was f^»^
and had been tjanlick in Ui
is known !»« recovi rt'd hii»
iid at I
aud at the time of his dratti tij«fii
41 kiofdiMBl
m^m tMiidt«j
1389]
for the Murder nfhis Father.
A. D. 16^2
liess, or retumine of fVenzie upon him, but all
that week he had compostdly done his affairs ;
and did upon ihe Saturday, when he went
hooie, disc-<iarse raliouall y upon u)l the subjpcis
that occurred : But it being" so clearly docu-
mented nnd proven that he was strsinj^M, it is
a rtdiculoitij conceit, and there remains ni^ pos-
•ibihty that after he was strangled, he wRlked
out and drowned himself. And ns to thnt pre-
samiitinn, that the pannal rendered himself
prisoner, it was indeed suitable to the rest of bis
iinpndence, and he did not render himself till
tfter the order tri :i]iprehenil him was intiniiite
ill him, when he could not escape, and when
he WHS undtT oh.sci'vaiion ; and there did not
wiini projrct in fixings upon this impudence
when ne could iKil «^cape, as a (|ualificaiioD of
innocenee^ thut he would render.
Sir David Tfiutrt^ without repetition of the
Htplyes made by his Majesties Atkocat, doth
make hia Duply to the torsaids Hcplys, and
•fvay member thereof, in order as followsi viz.
To the first, anrnl the treaaonable words,
the paDiiar« procurators oppon their fonner
ajiawera, and the act of parliament whereupon
thai part of the ditty is founded, being only in
arder lo such treasonable speeches advisedly
ipokan. The constant tract of the pannara
life, ill drinking his majesties j^ood health at
nODiJonfl, and otfermgr tc» adventure liis life in
ii»ervice 'm the last rebellion, sufficiently dc-
faonatratji, that if any i^uch expression did es-
cape the pannal, ai« it h dcnyed, the same was
onW ^^h aiid utiadvisetl, anil not detiberat and
adiWd, us is ic^uin-il by the act of parliament,
to infer the pains ly belled ; and liie (jualifica*
tiOQS added by my lord advocat, bearing', that
the pa&Tuil i1i(! conjure the persons then pre-sent
X» aecrt It strata tliat ibc pannal was
«ff tncam. irlily sorrowful and penitent
for the sanie. And it is dear by that enc^llent
la«v «if Uie Code, the words whereof are, » S<i
* 4^uis Imi>eratori raaledixerit, si eic insania mi«
* •ammlfi, lii ex temerit^te, el petuhntia tem-
*jiefida« si ejc anium injnriandi atl principem
* giCfititlsndum/ which demonfitmts, that by the
aominou law, such an rash ami unadvised ex-
ircBMan was never to l>e laid hold on to infer a
capital pttnishment, where the person alledg-ed,
CEsriiBOr theieof, was not other ways suspect of
4i«loyalty.
t. Repeats the defence aa to crime* alledged
eomttiitttfd abroad, and it were against reason
and equily, that fierMvns for one and the self*
•ame crtuie, wbould be subject to the punish*
went of several jnriirdiciionB, where the punish-
xnent of the tiuida crimes are different: but
■ my lord Advocat d^larcs Jie hath no
on for thf'c*^ <ilM(jcil crimes, but eerti*
( and fttfi ' I V cannot be obtruded as
m part of Ih* utite the naidj; pretended
oerr * • itinthe
hbi I crimes
iflto ^lurtoiii uf attidsvits thotild be introduced
in this court, all punualls (how innocent soever)
miirhl be mnnlereil, by bein^ depriveil of Ijicir
unanswerable objections a^aiUKt rhe (^ranter* ofl
these atiida^ its, «S:c, and thcrct'ore they cannt>il
be sustained as a quuliftcation to load the pan«
na), or make the inquest have a prejudicat upi«
nioti of him,
3. As to my lord advocttt*s reply anent thi
act of indemnity, the former defence and ut^
of indemnity is upponeel, and bears exnreasljfil
murders, robbeiies, slaughters, and oil othtrj
crimes committed against his majc-^ty, and lawi
of the kingdom, either by word, writ, or tlecii \
which undoubtedly excludes atl alled^c
crimes, said, done, or committed by the pannal
before that time ; and this favour, et gratti
principis, is to be ampliiit and exten'led* and
not restricteil, and all his majesties judges and
officera of state are commanded to sustain th«
same, according^ to the most ample interpreta*^
tions for the pannalj that the words will allow.
4, The pretence that the paunal was of thtt'l
quality of a burner, or a baron, is most irrele«ij
rant, the pannal having' no visible fortune
the aame time ; and as my lord advocat bim«
self ack now led getbf no expectation of any for*l
tune whatsoever : so that if barons, burg-ertj
life-renten, wodsetters, and likewise thesM
who have nothing* in possession at the timCai
shall be secluded irom tbe benelit of that in-J
diemnity, it is scarce intelligible to whom, and
from what cause tbe same was q^ranted. 5^
And as to that part of the reply, bearinff, that/
this was a privat injury, and so not com pre*
bended within the act of indemnity, the fomicfj
defence is opponed, and all pretence of privi
injury was taken away by dissimtitatton
death.
As to the pretence that the reconcilialioa
can be no defence against the lybel, ns to rin-1
dic((t publlca^ and that tbe letter w hereupon^
the defence is founded doth not itnport a dis*"^
simulation ; it is duplycd, that the act of par*
Itament bein^ an conminatory law, ftnd priu«^
cipally intended in favours of parents, the sami
w^s never yet made u^e of, and it were very
hard to make use of tbe same to deprive a pa-
rent oi his child, for any rash or passionatifti
expression ; es< pec i ally, where upon repentanosi
the father bad remitted tbe injury; but thcj
father being in efl'ect judg^e of tbe injury, btt']
remitting the same ouirht at least to asioilzii']
the child from any capital conclusion. And i
to tbe allc*(lij€*d habitual cui-sinsj^, the naiut? ii^
denyetl, and tbe former defence founded upoa
the act ot indemnity, is repealed and opponed,*!
and tbe lybel is opponed, which dnth nut beaff^
habitual cursing, but particular acta at pnr*|
ticular times*
And as to the qn allocations nllcd^ed by m|
hrd advocat, for clearing^ that the defunct stf
James Standsflrld was murdered, (he pannal tg
truly sorry, that for hi* own defence, and few
clearing of his own innocence, his lavicra'
should be uecestitaied to plead any Ihinf^ re-
Utinfij to his lmtber*s infirmities, or way and
nmnner of bis death. But it it duplycd,' tbaf
1391]
4 JAMES n.
Trial of PhUip Stnnd^Jeid,
the whole presumptions atlijuteil hy my lonl
mlvocat arc allaii(;rly fallacious coiijHrlurt^a,
And cun neither be feparatim^ ur com|>texly re-
levant to infer any such Ihin^. I>eiatf»«i 1.
That the minister <lid hear a u hi<i(ierni]< o\nB^^
mill ^vas ihertfhy lemHed, hia terror Ami con-
itcrnaiion having (aa he liimselt pr^flemls) j>at
Him iu a disorder und etmfustun, he was tliere-
liy rendered incapultle to uh«ierve wj\n\'j[v id'
any thing that tia(ijH-r)ed. 2, Thai the btidy
wan wivtm tiling above water, importj^ nothing,
the defunct having a ^re^t coat of thick elotb
about hittif which ivns sufficient to ki^ep htro
floating above. 3. Tbu |ir«-ieiice that there
was no water in the defunct's iKwIy when the
cUirur^ions visitrd the nmnw, iinpoits noHiias^,
because the defuiict's botly having b^en i^vt.'ral
limes stirred betbre tlial fiuie, by vvbivh tbo
%%ater mi}(ht have ruu out, as it actu^Uy did
(ill ca^e tliere was any water within it.)
4, Ailwit where a rnaii is drowned unwil^
liii&^iy, and endeavours to breathe^ h(\ lon^ as
he can, Ui* breaihinif may stiik iatht; water:
y42t l1 a luati intfuU to dro^n hiuisilf^ he will
certainly endeavour aii mcan^t ftNT t{uick dis-
{latch of hinvself, and lUvrtby kee|i iu his
n'eath ; and the keepiot; in ul the breath after
tbat mauaer wa^ ^^udie^eut, both to kee^i the
l>ody floating, and the v^aiir from coiaio^ in.
5. To jrut the mutter beyond all questfonf
the defunct was layitiK in the water a coniiider-
able space trom the hank 9 and albeit the ice
Ivas not so strong^ Hk to have curried a child, yet
iheiee u as whole and entire betv*ixt the de-
funct and the bank, which ilemanstrats, that
the deiunet h^td jum)>ed lu from tlte bunk, to
lliat place where he was lying. 6« An to that
pretence, that there was blooil about the de-
tu^ct^s neck, all la^ipered antl bruised before in-
cision wua inade^ the defunct being puUed out
rif the wutei^ by an great cteik, the touching'
iif the ni;ek with the cleik, whf n his breatb
waj» jumt i^one out, wus sutiicient to have made
the bfood w here that part wan, to Inpper and
cuiigeal. 7. As to the declarati(»ni of ilie phy-
siciaufi and ehirurg^iuuii;^ they are only decla-
t^l^is c:.^' auditUj and u^Hin report of oue or
riHIP cUinirgions, and bath tio found ation^ bttt
tiitt ignoranre or knowledge ot the mUU two
lepoiiers ; neither can any such dectara*
lions be obtruded againi^t the pajinal, beoauae
not given out with the lybel: but ivbatever
nvay beinlerrcd from these presumptions, whe-
ther tlie defunct was murdered or not^ tlia
same dcjes not concern the pannaJ, uui'^as his
acoeSMOu to the murder were tostructed^ wi it
taimpocubte it can b^.
As to the «{nalifi€ations alledged by my lord
advocat, for dxing the murder, or accea^itm
thereto upon the panual ; it i^ * ' 1 lo the
tirift, thai the pannare^ allied l ;h hie,
and the story at Treve«*» hi^ Utu^ <i4iittk m
jjriiionf and threatening' to cm thfiiat« n|»ou
Ainill ririiin- .t,-i, ^, the sume are ejctrioMc to
I t be rettpecled. 2. A^ to
* ^ jiiig usitd m Jatiiev Smitb^a
)j0Uic, the lybci la oppoad, hmiiug theaa ex*
pressiiin^, to have l>cen used in the year 16M,
t»r *ijme year preceding ; and therefovr tba
lormer detVuce founded upon (he indeuinity,
in repeated and oppon^'d. And wlieread my
lotd advocal pretendii, tliat *• miti*e pne«.'ed4*alraJ
euin damno ^'4UUto/ i^ suffteient either Un\
fix the guilt Mpuu the person, wiio u«etl I
threats, or al leatit to burden him vt iih the |w*'
haiion, that another eomutitied the erime : ilK^l
duply ed, 1. That my lord advocnt^a paaitioo m\
abiMdutidy dcnvt 1 1 ' ', i;
other positive ii
and ♦Jir : I. rj mir,f
not on ;r'tof indt"':
hv '1' , whirl' V
b Vomlbebt
tit, ...._i.u, but Idicv^ :,_,:. i.;v ^-^~ ^--.Ui
owning, receiving, iDtei'tammg, furuiBliMi^I
and providing for the panual, in every tiling
suitable aa hia eldest sop, the same dotit un-
doubtedly take away all pretcukce tltat can b«
founded upon threatningi so many years pre-
ening ; and by do law can tb« paunal be bur*.
dened to prove wbo were either actors^ or to
accessiou to bis fiuber'tf roitrdcr.
As t«> the seooDd qii ' ' '. ^\, beari»|ri ^^^
the defunct said to s ^ons« tbat tbai
panoal ofi<^ed to invaii^^ iiim (fleayiti^ tbe
^aiiie) the father's assertion C4>n!d not tnfer ^
crime against the pannal, unlcw> the crime ii*
self were otherunys proven bv wiluesaes, audi
the same is lyhc^Ued to have been said bv sir^
James before the aet of iodeoiuity. Ado sir
Jatnes'a other assertion, tbat he was to trouWe^i
for fear of yirejudice from his family, caoftQl.
infi^r a crime f especially against the oanoal;.
and far less can it he proven by Uie relict audi
the other son, wbo in sir James*» apprebeoMottl
were deaigniD^ mi#ohief a^^iniit hiin, atid feet
their own vindication, they would oertaiAir de»>
pone partially sgain^t the pannah And thai
satue is repeated against the other eatfifeMiofiai
all edged i»|Kikeu by the mother ; and wit«
netses cannot be received to prove what ano-
ther witness said.
As to the f»retenc:e, that the pannal relitsad'
to sup with hi*i fn'i'v- r'l > "'!rht before bi»^
deatli ^ it is dupl V was not at all'
in usctoanp, e\LL, . u ^.- .-nivfht. Aod<
the paunal had no killdae^ miniaiar^j
because he and others of hi ^ ^ m :«d
voored to kee^ up diseord betwiai him aod bisi
father.
As to the alledged bleeding of the cor|ifi, the
former defences are opponc*) ; nm\ aH>»-it the
pannal did hetp to lif^ his i
the inciMon^ yet no tdo^ul i^.
thereitf^er that tile tnciaioo wus
|>aiinai did fall to if rip that part
»ead \' ' '
blood I
Ih ^ ,
t Jii a i 4 1 • ty a ud aifectu > .
preiiension of guilt*
beoig all lybvlt^ aud debated 1
' the Murder of his Father*
A, D. 16SS.
[I
)
h\y desired for the ptmnal^ tbal the lank of
justiciary would give a Beparat inlerlcMjuitor
upon every particular r^tialiticattoti.
Sir pQ trick Hume for the pauual ndda, tliAt
Ip to tlie prjtot of treason, it is offered to be
proven I that it was when he was drunk^ and
after cups» and is so presumed, espcH:iaUy it
tieinfX* ^ it is acknowledg^ed by tbe lybe), m a
drunikeii company.
S. As to the act of indetunity, tt is ex-
tended to all cricnes except the avchtiishop^s
murder, and ^ctpiiQ jirmai rpguUim^ ^Stc. And
the act bears not that clause excepting other
crimes, which uses to he excepted.
:$. X% to the qualifications cotideiceuded on
in ray lord advocrii's answer, either tbey are
lylieted, and so oppone** ihe former answer ;
and if 1 hey lie not lybeteil they cannot be con-
■idered as qualilictttionii.
4* Whereas it is alledg-ed, that the panaal
was in use lo thrifAten to cMit throats, when in
Mssioo, the artcunient \% retorted, for thouf^h
De threatened, nothing followed ; and lo hit
threat nings wctc hut verba jactantia.
5. As to the citation out of Mattheus» that
p^rtiet may he puninhed upon presiMmptiona,
il is answered, tbut the case th^re stated is,
where the person who committed the slaitg-hter
waj( apprri»ended in the place where it was
committed ; that he was all bloody, and with a
1>laiHly RWiud, answerable to the wound ; and
that oe bi'came nale when he was appre-
hended, and that he had made no answer, but
in terror tied away ; which are such acts as do
avidently make appear the slaughter, and
<^uld admit of no other construction ; but that
^nuot t>e pretended in this case, where all the
presmnptions are remote and extrinsic. And
even in the cas<! inntanced by Mattheus, and
others of that nature, they ire only to take
e/lect tu order to an arbitrary, but not a ca*
(jttal pnnifcbtMent, winch iti the opinion of all
faweis who cvtt wrote u{K)n tlie subject, and
oorticularly Mu^Ciird, dc proh. conclus. ns,
Numb. 20 ♦ and 31, where the <iuei»tion ui
•Uied, * An phtres pnesumptioup* cunjun-
funtur?* iu order to mferr a ca|jitiil punish*
int : and lie concludes in the negative, m a
lernl conckision by all lawer», but only to
Terr an arbitmry puniiihmeut.
Aa lo the bleeding oi' the body, jt is oflereil
to he proven, that the pannal touched ht^ fa-
filer's body before the incisioo, aiid it diil uot
bleed.
The Lords Justice General, and Commls*
fionwr^ nf JuHiiciary, havings considered the
liii iteti atlvuc^t againitt
r iiftl: And the firat
p , ;iijt lu liiv irpiison libeled, they
ti .tMi a% it i« libeled, relevant lo infcn*
At\*i as til tlu' (tannal'tf cursirtg hia father,
nv "' '^ ■' '' '"'' ♦"« "lU: Th#^^ fiod these
r uu viz. The devil
la i, God dattm him,
r: '»r death : And re-
pv ! upon iLli act of lu-
VUU XI.
gun
m
demnity, and finds the pannal is not uader, or
below tne quality il^erein specified.
As to the pannars murthering of his father
mentioned in the indytement, they found the
hbel as it is libeled and qualified relevant to
inferr the pain of death, and remits the same
with the qualifications libeled to the knowlcd^
of the assise, and altowes witnesses to be led
for the pannal^s proving; hi!$ father to have l»cea
oielaneholy the day before the committing' of
the murder, and remits to Ibe aasiae to consider
the import thereof, if it he proven, and repel I a
the whole other defences proponed for the
pannal.
The Lords continues the dyet against the
said Philip Standstield, till tocnorrow at two of
the clock in the afternoon ; and ordains him to
be carried back to prison, and the witneases
and aasiaers to attend, ilk person under tht
paioe of 200 merks,
EotNetiROU, Fehruary 7, 1687.
Philip I^ands6eld, prisoner, being this diy
entered on paoual, dilated, iudyted and accused
for the treasonable diinkiny of the king's con-
fusion, cursing' \m father, and for the cruel and
unnatural murdering of him in manner men-
tioned in this dittav :
The IntCrloquitor a)»ove written was this d^y
read a^ain in presence of the pannal, and the
assisers after named, viz.
William Dailly of Lamiiisftoun,
James Glen, stationer.
Alexander Reid, elder, coldsmilh,
Charles Charters, mrxfiiand.
David Hepburn of flntoliy,
Edvvar^l Gillespy, merciianiL
Robert Sandilands, merchnnd.
Bamuel Moncrief, merchand*
Thomas Lendall, merchand.
James Cleilaud, nterchand.
Hepburn of Ik'ins^touu. '
William Paton, merchand.
George Braithwood, stabler.
John Marshal, merchand.
Alexander Edj^p chirurj^on in Il&ddin|
totm.
The Assize lawfully swoni, no objeclion of
the I.: 4ry.
H I vocat for prohal ion adtl «r *
ed tiie \MiTKs.^'-s ueponinp", viz.
John Ko/erfiow, late sen itor lo sir James
Slandaiield of New Mil as, aoal twenty four
vt^arN, unmarried, pur«:td of malice, pr«*)i;iditit%
Laired, ill will, and partial co unite I, and so-
lemnly gworn^ dcjiomH^ a hwie tin»e before
' \tf the |i.innal t#ciiitf in thr kitt^hen ^f
.«, iu tiie deceaiit >ir Jame^ Sunds-
tu-iii s (jH^Hise, Whtrr "^ ■■■ ■"-■ -■ ■ ' ■ '•• ■-- ;*:e
preaent, he suw tii* ,f,
tdke a cup of nle, lu^.: ,..■, , . .^^^ is
the pope^sj cunlti»on, the aniichii«ii'», the chan-
Celour's, :'5'"I f'i>' lviiH»'*: « nil ii-iMiii mill t>ijl [\\f
cup to I
gate il iv
41/
1
I
1395]
4 JAMES 11.
Trial of Philip StandsfieUf
[IS96
bim to drink it on his knees; depones, that
there were likewise besides Samuel Spoffbrth,
Jeremy Smith, Agnes Bruce, and Elspeth
Jameson ; and depones, that Philip Stands-
field, the pannal, was not drunk at tne time ;
depones, that at the naming of the several con-
fusions above mentioned, he still drank a little
of the cup; and this is the truth as he shall
answer to God : The deponent further depones,
that he said to the pauual, afVer the drinkmg of
the said confusions, that it was treason, and
he answered, Ye dog, what are you concern-
ed ? Ye do not understand to whom ye speak.
Sic Subscribitur, John Uobertson.
Afines BrucCt servant to the deceased sir
James Standsfield, aged twenty four years,
uninurried, purged and sworn, depones, That
a little before harvest last, she being in the
kitchen of New Milns with Philip Standsfield,
the paunal, she saw him take a cup of ale, and
drank the confusion of the pope and the king,
and heard him bid Samuel Spoffoilh sit down
00 his knees and drink the same, which accord-
ingly he did ; ailer this the deponent went up
stairs, and knows no more what past at that
time, but lieard they drank more confusions. De-
pones, that about a week after it being talked
m the house, that he hail drank the confusions
aforesaid, he said to the deponent, God damn
him, if he knew who divulged it, he would be
their death : And this is the truth, as she shall
answer to God. Depones she cannot write.
Sic Subscribitury Linutiigow.
Samuel Spoffbrthy late servitor to sir James
Standsfielil of New Milns, aged 19 years, un-
iitari'iiHl, purged and sworn, depones. That a
little before harvest last, the deponent was in
the kitchen of New Milns with Phihp Stands-
lield, the paunal, where he heard him drink a
confusion to the pope, antichrist, and the king,
and to the devil ; and the pannal prest the de-
ponent to drink the same confusions upon his
knees. Depones, John Robertson, Agnes
Bruce, Jeremy Smith, and Elspeth Jameson
were all likewise present at that time, and that
these confijsions were drank severally : And
this is the truth, as he shall answer to God.
Sic Subscribitury Samuel Spofforth.
John Robert son J above designed, being re-
examined, purged and sworn, depones. That
the leponent being at Morum castle after har-
vest last in order to give a call to a minister,
the deponent having met with Philip Stands-
field, the pannal, he said to him, Ye are a wise
lad ; if ye have subscribed that bond, the devil
take him, and particularly the devil take his
father, and named his father. Deponed, that
at another time, in the midst of harvest last,
the defionent and sir James Standsfield, the
pannars father, bemg going to Smeitoun with
a minister, the pannal asked him, Where he
and his father was going ? and the deponent
answered, that he was going to Smeitoun with
his lather ; and the [lannal, Philip Standsfield,
said, Devil; let never one of them come l»ck
again, horse nor man . Depones further, That se-
veral times, and frequently, when the deponent
had been seeking the pannal to come to dinner
with his father, the pannal's ordioar aoswer was»
The devil damn him, and you both, and devil
rive him, for I will not go to him, and if be
had a sixpence a day, he would not go near
him, for his father girned upon him like a
sheeps head in a tong^, and tnat he has heard
him say sometimes, God danan bis father:
And this is the truth, as he shall answer to
God.
Sic Subscribifury John Robertson.
William Scottg clothier in New Milns, aged
30 years, married, purged and sworn, depones.
That between Michaelmass and Martiuman
last, the pannal, Philip Standsfield, having
come to the deponent's shop, and asked for
some tobacco, the deponent said to Philip, His
father would not let bim want for money to
buy tobacco ; and the pannal, Philip, said. The
devil take him and his father both, for there
never came an honest man out of Yorkshire.
Depones, his wife was present with him, when
that disbourse, past. Depones he cannot write.
And this is the truth as he ^all answer to God.
Sic Subscribiiur, LiNLrracow.
Agnes Bruce, abpve designed, bein^ re-ex-
amineil, purged and sworn, depones. That she
did hear the pannal usually vow and- swear be
would kill any person that offended him, and
that the pannal did haunt much with Janet
Johnstoun, George Thomson and his wife,
and that he went frequently out of his fa*
ther's house at\er supper to these persons ; and
further de()ones, that she has heard the pannal
frequently curse his father, and bid the den'I
damn him, and rive him, and swell him ; and
that she has frequently heard him express bis
hatred and abhorrence of his father, and that be
could not abide to see his father. Further
depones, that the Monday at night before
sir James came to Edinburgh, the last time he
was in it, being about a fourthnight before his
death, the deponent was ordered to call the
pannal to his mother, af^er he was gone to his
chamber, and that accordingly she did it ; and
when the pannal came down, the deponent
left him with his mother alone ; and when she
was without the door, she heard him say to bis
mother several times, God damn him, if he did
it not ; and desired his mother to take a good
'heart, for as long as he had, she should not
want. Depones, she knows not what he
meaned by these words, but knows there bad
been a little quarrel betwixt sir James and his
lady that same night. Further depones, that
on Tuesday thereafter, when sir James Stands-
field was going into Edinburgh, she did hear
Philip Standsfield, the pannal, say in his mo-
ther's chamber (his father not being present),
God let him never return, God let him never
see his father's face again, the devil go with
him, the devil rive him, and take him away ;
and that tliere was nobody in the roame at the
time, bat (he pannal and hit UMthcr, tod Ibt
1397]
' tkc Murder qfhU Father*
A, D, IGSS,
ileponent was M llie iloor. Further depones,
thiit about a month before, %\t James having
reproi'ed tlie partnaK upon the occasion of an
acc<jmptg^iveti in by WLllmtn Anderson, Uftnver,
»he did hear tlie pannal say, in his iiicither^i>
chamber, [sir Jame^ not hcinyr present) Goil
damn Itim^ if he should not do ten limes uorse,
and thAt he could not endure to see his fa-
therms face, and that he had hated his father
these gix or seven jears. Further depones,
that about a foanhnig^ht or twenty days before
sir James's death, il beint^ said tliat F^ hi lip ^^3^
to go to t4»wn with liis father, she heard him
say, he would be hanged eVr he went uith
him ; let him go, the dei^d go with him, and
let him never return ; and this likewijie in his
mother's chamber^ and in her presence. De-
ponea. the pnnnal did ordinarly shift occasions
of tmmj^ in his father*ij couipany* Depones,
that the Friday before sir Janits hi$ death, she
knows ihc pannal atid Janet Johnstoun were a
considerable time together in the pannal's
chamber, where the deponent heard Janet
Johnstoun^ti tongue, IhU dotli not know if
Oeorgo Tliom^on and his wife were wiili them.
Depones, iliat on the Wednesday liefore sir
James his de^th, Philip having ctii-sed some of
the servants, the deponent said to him, God be
thanked^ he was nut their master; and that he
atjswered her with an oath, she knew not how
soon he mi'^ht be their master: and fm^ther
depones, that slie thought sir James not so
fiierry a^ his mdinnr the night before hi<» deith^
but ihut he conveyed Mr. Detl to his chamber,
and thereafter cume down to hiBuwn; and the
deponent having desired la speak with »ir
James, hts servant, John Kobertsou, told her
she couhl nol, liecause his rlmml>er door was
ahutf and he wuk gone to bed ; and that she did
then see light in his roum, »nd when she was
going axvay, Ibund the hall-door, which was
without his ciMmher-dor»r, shut, and that the
UalUdoor \\a% not m^naUy closed in the night
time, except sir Jatnes Imd done it himself, and
which he d{it but once in two or three nights.
Dc^Hineii, tlt»l on the ?;*atith!ay*s ni^ht when
sir James came home, he did go to his ladici»
chamber, where he stayed not a quarter of on
hour, and that hi*; lody fell a quariTling of him
for going to anotht'r fiou^e before he came
there, and that the dpjfonent came out ol the
chamber, and knows not what more past there.
Lk'pones, the next morning, when sir Jumes
w'js mist, the dejjonenl vttnt into hisroumto
|ftjt on a fii^, and Ibnml the beil lietter spread
up than it %\sm\ (o Ije, and the curtains tnore
drawn about it, an<t the candle, which ui^ually
was at the bed-heuil, she Ibuud it standmg on
u chair at the bed -toot* And futiher depunes,
ihtt when the defunct ^s Wdy was bvingingnp
In the fionsc, the deponent would Imie hadliini
bronght to lu* own ehamber ; but J'hilip sivore
],»' f".''\ should not enter there, lor he had
I man, but like a beaMt. I>i pons,
lat ;, wiv* then pot in the Walk- Mi In
(but knous not if Fhilip caused do it,) and that
th« body from that was brought to • cellar
tviihin thecloss, where there was very lilllf]
light* Depones, that she did not sec any J
w^ler come out of liis mouth, and that when J
the deponent littcfl up the tiniten-sheet, whiclil
was over him in the cellar, some ol them cansed j
let it down agnin, for it wan not fit to let th<s
body Im? seen. Depones, that Janet John^Moi
\%'as present with the body in the cellar wttd 1
the rest, and though it was known that ncMih(*r]
sir James nor his lady would look upon her for]
a good time before^ nor «iisHlic openly seefti
about the hou^c, yet that morning i«he went td I
the ladies chamber, as !iooii as the body waf |
taken out, unti the deponent \\i\s present iinil J
saw ber con»e in, and %vell enougli taken witlul
Depones^ she beaiil Philip, after Ins latluM'^.J
death, greet .md cry^ hut saw no teal's, De-
pones, immeiliiitely'nfter hisfalher'jj body wat j
found, lie would have forced hi.s father's eharn* j
ber-door, it being sliul ; but the key Wn\gt |
gotten, it wtis opt-netl^ and he euteriMl in, nnil \
first look his father's gold and money out of j
his pocket, and then got tl»c keys, and seareheil j^
the C4ihinet ; aud that within tin hour after hii
father was brought from the water, he got tho j
buckles ot his father's shoes, and put them in .
his. t>epones, that on the I^londay after sipj
Jumes's death, the lady and Janet Johniitouti (
liaving (|uarreHed together about some remains \
of the Hultand of llie woonditig-Kh<>et, Philip
came down out nf bis o\%n cimmt>t'r, and tlke^
deponent heaid Imn say to Janet Johusroun, '
Hold your peace, \ihen I comninnd \ou, for hei
would reward lu r well for the kindness she had I
done to bim ut that time. Dcpoties^ that wheiv^
the order canw from Edinburgh to ra»*.e iho f
eorps again, the ilepoftent did tiieet Ciiorg^l
Thonison, llie ta)'lor,anil perceived him shit k-^
ing and trembling, and asked him what troubled \
him P And thnt his answer was, he heard tin
iilackest news thut ever he heard in his hfe, lor '
sir James's body wasfo be raised again, aodsaid (
he would sew no more in the house of New- .
iUilos tor the world, and carrie<l the n^nurnings j
to his own house. Depones ihc knous notliin|^ j
of false keyn made use of about the huuHC|
only she heard the lady »»ay, that tliere %v erv.
DtpiMies, Philip had no hn kfaa place in thoi
house, e\cept a little colh*r, and that rt ouco j
being opened, the deponent did see sevcral'T
kejs within il, and that heeHered onre the key I
of one of ihe roumes to the deponent, butth'iiJ
deponent took tt not, because she luul the or-
dinar key of the room. Depones, that Phih|tJ
was iu Use to 1y alone, but tliat after hts father'ill
death, he uouUI not Iv in a routn nlone at NVvif j
MiloN, and that he declared to th« deponent^ j
that he was afraid to be alone in a nmni, dtht r
night or day, ao<l thnt he slept uot the night I
attci hi^ fattici dteil, and that he blioold not v,^
into the roum wlieie his father lav, if oute lie
had the cabinet out of it. Depones^ (luit n (
slioii iniv< U'foie ttir Jiime^ ilied, the lady hav-
i I a swfit>d( and the deponent flawing'
I ^^ of it^ Phihp came to his iioithcr'a
chamber, and that his mother told bun thru,
that b« wiui like in a short time to lose lu<
1399]
4 JAMES n.
Trial of Philip Standsfield,
[1400
mother ; and that he answered, in the depo-
nent's hearing-, that his father should be dead
first : and depons, that some few days there-
after, in his mother's chamber agfain, and in
the de|K>nent's hearin&f, he renewed the same
words with an oath : further depones, that two
nights after sir James's death, the lady told to
the deponent, That something then came in her
mind which she had heard, to wit, that Philip,
before he went to London, when be was in his
pomp, having heard that sir James was to gi^e
iiis estate to his second son, in the house of
James Smith in the Nungate^ had vowed to kill
his brother, and the like or little less to his fa-
tlier ; and that thereafter when they were
coming into Eduiburgh, the lady renewed again
to the deponent the same words, and added,
what if they should put her bairn in prison ?
And thir- is the truth, as she shall answer to God.
Dcj)()ns she cannot write.
Sic SiibscribUur, Linuthgow.
John Shandy sometime servitor to sir James
Standsfield, aged 43 years, unmarried, purged,
and sworn, depones, that a little after Philip
StandsBeld, the panual's marriage, the pannal
and deponent being in James smith's house,
in N Ungate of Uaddingtoun, the pannal did
cxpostuTat with the deponent, that his father
dealt too narrowly with him, he being then
married ; and the deponent told the pannal
that his father was in straits, and exhorted him
to be dutiftil to his father ; thereafier the pan-
nal said, if I knew my father would give his
estate to my brother John, I would cut his
throat ; and the landlord of the house being
by, and present, and surprized, cryed out,
. God preserve roe, what means the man ! the
landlord understanding by the word his, his
father : and though the deponent took the ex-
pression in the same sense as James Smith did,
yet the deponent endeavoured to excuse it, by
saying it was not his father that he meaned,
but his brother, or his roan Donald ; and the
pannal being present, said nothing for clearing
of the expression ; whereupon the deponent
went away, and left the pannal, and could not
endure to stay longer in his company : depones
the night before sir James's death, bein^ the
Friday, the deponent was with sir James jn his
chambor, in Edinburgh, where the defunct
was reading a sermon- book, and appeared to
be sad,, and said to the deponeat, 1 have no
comfort in my Wife and family. And this is
the truth, as he shall answer to God.
Sic Subscribiturj John Shand.
Mr. Roderick Mackenzie, Advocat, being so-
lemnly sworn and purged, depones, That
about eliihl days before sir James Standsfield's
ilealh, the deponent and he having met in thfj
Parliament Closs, the defunct invited biro to
take his morning draught. And when they
were gone to Mr. Shell's house, the deponeni
perceiving him to be in some concern, the de-
ponent asked him, what troubled him ?. The
defunct answered, that he had no satisfkction
at home : Whereupon the deponent said, that
people reported that h^ was partly the occaaion
of It, having disherished hiS 8on the pannal,
and acquainted him therewith : And the de-
funct answered. Ye do not know my son, for
he is the greatest debauch in the earth. And
that which troubles me most is, that he twiee
attempted my own person ; And tbia is the
truth, as he shall answer to God.
Sic Subscribiiur, Rop. Mackenzie.
Archibald Dunbar, merchand ni Edinboig,
aged 26 years, married, purged, and aworn,
depones. That the deponent having met with
the deceast air James Standsfield at Culter : bit
be does not remember positively the time, b«t
it was either in the year of this king's parlia-
ment, or the harvest before ; and sir Jamsi
and the deponent, and some other company
being in a roum, sir James was disoouraiBgr of
bis son's uodutifulness, and. within a kttle
while having heard a shot at the utter door of
the house, and the deponent and other offering
to go out to see what the matter was, sir James
was unwilhng to let them, lest they aboold
come to haasard. And thereafter havmg heard
another shot, they did ofier to go down agaio,
and sir James still diswaded them, and said,
that it might be bis distracted son Philip. And
they having enquired if he was in the conntry,
anil how he came to fear any barm from
him, sir James said, he believed he was in the
country, and that in bis going somh, he had
followed him to Lothian bum, and abot two
pistols, first one, and then another at him ; and
if it had not been that sir James was well
horsed, and hia son Philip upon a work horst,
be had killed him* And Samuel Menzies
having said, he was sure there could not be ball
in them ; sir James said, he had gotten too
many proofs of his son's unuaturality to bim,
that he had no will to he in his reverence.
Depones, .that sir James all that night went
not to bed, and the deponent sat up with bim,
and conveyed biro into Edinburg. And this is
the truth, as he shall answer to God.
Sit Subscribitnr. Archibald Dunbar.
Mr. William Clerk, advocat, purged, and
sworn, depones, Tiiat having frequent occasions
to be with sir James Standsfield, and he hav-
ing desired him to draw a disposition of his es-
tate to bis son John, sir James did complain of
his son Philip's undutyfuiness to him : and the
deponent having disswaded him to do it, since
his son Philip might be reclaimed ; sir James
said, no, fur he had no expectation of it ; for
when he was at the Lead-hills, there was some
pistol shot at him, which he was sure came
from his son Philip. And this is the truth, as
he shall answer to God.
Sic Subscribitur, Willum Clebk.
Mr. Jo//7i Bell, minister of the gospel, aged
forty years, solututy pureed and sworn, pro-
duces a w ritten Declaration signed under bis
hand, upon what he knows relating to tbe
murder ; and depones the same ia truth, as be
shall answer to God.
Sic Sufacribiiurf John Bbll.
1401]
^/&r the Murder f if his Father ^
A, D, 1688.
Folluirs the trnorof the taiiJ Declaration :
The nedainiion of Mr. John Dell, in iifisvi^OT
to ftievenil lnlerrti*^fttt>rie* propofietl hy
WiH IVfsijestits All vo rat betWe the Lotdv ol'
the CiMiimUlee of the CourK'ik
Imprimii^ 1 iledare, tliut at sir Jaine«8tiinds«
fictil'b f nrnt'it <le*iire, I wt»nt fVr>ni (hitt town
with him tu Nuw-Milns ; and that hy (he wuy
I disoerned nothings hut noiind judgment iind
rco^iii in sir Juijies, \m his disroume was
both rdtiotMi \ and pertinent ^ and that b«)tb il aup-
per that iii^hl* and after supper, Iiis discmn-se
wtu« rationuli nod hi&carrin^e tuu&tcivil^ and nai^
pleased to uci-ompony me to itiy cliambcT, and
iat with mo there (ius 1 supposrd) until it wu»
about ten oVlock at ni^^tn^ discoursing' perti*
n^ntly, and to gwHl pnr|»*;se.
%, 'I dt'chire^ that having' %\t\\i hut httlf , I
awakeufd m fii^r by a cry (n» 1 snpjMisi^d),
id bt'in*^ \vuking:» I heard for a time a (^rtat
dinn, and confijsed noi»e of several voices, and
l^er^ons bouietiinef ivalkingf, which Htfnj^hied
me (siipp<»siti^^ then) to W evd fvlcked spiiitiii) ;
nnd I a|i|ii'ehf*iided the voices to he near ihe
chamber-door somctiriies, or it) the IranKe, or
stairs, and soinetiinc^ hflovv, whicfi put me to
»ri*M» in (he nijiht, and bolt the chnmh€r-do«>r
further, ami to reeommend niyself Hy prayMr^
for protection and prrsenniion, to the itifije&tie
of God : And havin:^ ijnite aj^ain to l>ed, I
heard tlic»»' T nimue/hut nioris laijfh,
til! wifliiu a l hey came about to the
ehftmher-wi<i."-» , .m*! tli**n I h'?ard the voice
a« hitfh AS bi'tore, Hhtrtt iocreaaed my tear,
and made me n^i' again to look over the win-
dow, to bee whither iliey were men or women ;
hut the window would not come up fur me,
which wintk>w looked to tlicgnrflen, and water,
whither the voices went ou till I heard them
iig more, only towar^ls the morning 1 heard
walkiu^ ou the iitairi^, and in the trause alKive
thftt cliamber where i wuii Wn^%*
:^. F decUre, that \ lojd the women who put
oil my fire in my chamber ihav SalihMih inoru'
ing', tKnt I hail restetl little that ni'^'ht, through
dinii 1 beared ; and that I was »ure there were
f vd %ptnta ahaiit that bouMe that nia;ht.
4. I declare, that aliont an hour at^er day,
Hliilip cauie to my cbamlier, ami asked if sir
James came to that cb!-^'- »i ,■■■■_- nnil
told me thiit be had h* • she
hanks of the nater : i .. > ^.. ...| — I, 1
have n<tt seen > our father ; hut wliat mean ye
hjr the bankN o't the wa«er i' When ui.nn I'hdiji,
without an J^Meriutf, wint down - tJi-
atrly, and ^iihin a bttle time I Ji » see
what he meaiRHl^ imd bavtuj^ j^une wttiiout
the gall*, 4inj up the cau«ey that kada to the
munufaetory, one came running, and iksid, they
had fnimd vJr J»meR» I) intf in Ihe water i
^^ ' i..eii with »tuch a^ttonitiii-
1)4 II 11^, that 1 couht g;o uo
f«' irembtiug to the <:ham'
h« » down un the bed side,
1 tMri iM fill u>'iii .1 iiiktti, who accumpauied me,
Tliiii a the saddest day tiiat ever 1 aaw ; My
ftflfnu'ttmeut Iti the night wa» Icrrifying^ to cn%1
hut tbU is mor* <"'('*i'Mr^ And having^ goo
to an honest m i where 1 tfK>k bursal
that mornint*', 1 > , majestie of God dilfi
ever permit the devil and ta!» iustrumeuts to di
a bone$t man wrong^, then ^w James Hianda«j
6etd has received wrooi^ thi» la^*! ntKlit, i»hic*
the Lofd will discover \u hi& ^tMi\ tinie.
»>, I dei'lare, timt after my return from M4^|
rum« that Ha btmth- evening, Philip toh I me thi|
he had advertised several friendt^at Ediuburglj
and that he was expecting the comtniasarL^
amongst other^ithat ni^ht : Whereupon 1 coia*
inendetl what be had done, in sendm^ for &uc'
intellig^ent persons, and thai for iwo reason
(1 ) be4?iiu?^e it was necesMiry hia father's^ \
sluMdd be sijs'hted ; (2.) hecau&e they could aJ^^
vise him about hif. buriaf Tbiltp an^iwerid, that
•he was seen hy the^c that took him out of the
water. But 1 rrplyed, that was not enough,
for the murder cotumitted was either a viotenc
111 order, or a diiitracted murder ; and having
described what a di»»tracted munler was (uiion
Philip's relating some distemper his father had
lieeii tn some yeara formerly), 1 aaid, that I
eoDCCtved no pervon coidd come to such a high
act of fren/ie, to do aiicli » thing, but it woulil
Ix? known on him many Imur'i, yea aoine iJaya
before ; hut 1 could testifie, that fir Jainea was
in liin ri'^ht reawm at ten o^cIock ; wherefore
I Mtclineil io ttiink it was a violent murder com-
mitted by wicked spirits; and so advised that
the corpii mi^ht be bigfbted bv the nearest phy-
<;icians and trtei^ds, and the Fionest men hviug'
in that town : Nevertbelesa, they went and
buried sir James that night, without cither ac-
c|uainting me, or several houest persona who
lived in the plkee. Mr. John Belt depones his
above written declaratiuti in truth, as he fchall
atif wer to QwL
> LiNLrraoow,
>JoHi4 Beit.
Sic Subicrihitur^
^r Robert Sinr/oir of Sleinstoun, purged and
gworn, de|>one», sir James HlandK^eld being at
the deponent's house, told the deponent, that
he rei^rated ih:it his j»on Phihp had miii spent
his time and money ; and when he came
home from London, he waH ashamed to tell
how hee^me on him in his chamber at London ;
ami this is the trntl^Qji he shall answer to God.
Sic Shbicribktur. Ko. Hinclaib.
3umfM Muitheud^ chirurgjon, aged 3!i yean.
mtirried, purtred and sworn, defione«, thut aJt«r
the deponent und James Craulurd, chirurgioo,
had opened the chirps about the neck, and sew-
e<l tt up again, and rmuoved the Ibul linnen*
and put on again the eSeun linuen**, in doing
whereof they were obliged to nhske the body
to and fro, and mo%e the head back and for-*
ward, tlie de^tonent desired that ihe frtitods
miglit hfl thek»dv, and put it in the coliio, and
that the piinnal,liavinG; come and hti up the
head, he did let it fall upon the t I-
denly, and that it made a considt o.
at talhug, and tha| the paonal rcuuMi iMck
quickly, tubbiug Uia bauds uu his breast, ami
1403]
4 JAMES II.
Trial of Philip Siandsfieid,
[1404
erring, O God! O Gotl! and some such
other words : and that the deponent being as-
tonished thereat, lookcid to the corps, and as the
pannal did take away his hand from it, did see
It darting out hloocf tlm)ugh the linnen, from
the \eh side of the neck which the pannal
touched, and that the deiioneut was amazed at
the sight, partly througti the daning out of
the blood, and partly through the apprehension
be had of the murder. Depones, he saw no
body touch the left side of ttie defunct's head
the time ii bled, but the pannal ; depones, that
as soon as the deponent recovered out of his
amazement, he cryied to the boy, to ^ve the
Sannai some triacle- water, which he did ; but
epones, be did not see Philip the pannal return
a^in to the body of his father. Depones,
when the deponent and the T>ther chirurgiou
were putting on the clean linnens, and stirring
and moying the head and craig, he saw no
blood at all. And this is the truth, as he shall
answer to God.
Sic Subseribiturf James Murehead.
James Murehead ^ and James Cravfurd, chi-
rurgions, give in their report and declaration
in write, anent the murder of umquhile sir
James Standstield, which they renewed upon
oath, in presence of the justices and assisers,
and whereof the tenor follows :
November 30^ 1687.
We viewed the corps in Morum church.
Edinburgh, December 1, IdSr.
We, under subscribers, James Craufurd
and James Murehead, chirurgions in Edin-
burgh, having order from sir John Dalrymple,
his majesties advocat, to go to Morum, and
there to take up the corps of sir James Stands-
field, and to sight and view the same exactly,
and, if need were, to open up the body, and to
consider whether there appeared any evidence
of wounds, bruises, or strangling upon the
corps, besides what mi^ht have happened by
his falling or drowning m the water, &c. In
obedience thei*eto, we caused take up the said
corps, in the pi*esence of Philip Standsfield,
Mr. Andrew Melvil, minister of Morum,
James Hamilton, writer to the signet, James
Row and Alexander Campbel, merchands
-in Edinburgh, Umphray Spurway, James
Dick, James Mitchel, and John Robertson, in-
dwellers in New-Milns, and some others.
Having with all possible exactness viewed the
corps, we observed the face a little swelled,
and inclining to a dark reddish colour, some
fulness of some capillarie veins in the pallat of
the mouth towards the uvula, as also a large
and conspicuous swelling, about three inches
broad, of a dark red or blae colour, from one
side of the larinx round backwards to the other
side thereof; we observedthe jugular veins on
both sides the neck very large and distended,
and full of blood ; tbere was a large swelling
under and betwixt the chin and the cartilago
scutiformis ; there was also a little scratch be-
low the left roandibula, which had rankled the
cuticula, an<l made some little impression on
the cutis : Having made incision from the chin
down about the larinx, and cross upon the
swelling of the neck, we found a grater lax-
ness and distance (as we think) than ordinaiy
betwixt the cartilago scutiformis and oi
hyoides ; we found the tumour on the neck,
containing bruised, like dark or blackish blood;
the jugulars, when cut, bled considerably, es-
pecially that on the lelt side.
Having opened his breast, we found the
lungs distended to the filling up their capaci-
ties, but free of water : his stomach, liver, &c.
were all in good condition ; we found no water
within the corps ; the corps had no smell at
all ; the breast, belly, privy- parts, &c. were all
well coloured, there was no swelling in bb
belly, nor any thing by ordinary to be seen on
his bead. Ibis we attest, and subscribe with
our hands. ,
Edinburgh, December 6, 1687.
In presence of the lord archbishop of Glas-
gow, lord Tarbat, president of session adrocat,
and Gastlehill :
James Muirhead^ and Jamts Craujurd^ chi-
rurgions, bring solemnly sworn in the presencs
of the committee of council, depone. That the
written report anent the body of the deceast nr
James Standsfield is true, acconling to their
skill : And this is the truth, as they shall an-
swer to God.
r James Craufurd,
Sic Subscribitur, < James Mlreiiead,
/ John Glascow, J.P.D.C.
Edinburgh, February 7, 1687.
In presence of the Justices and Assisers.
James Murehead, and James Cruufnrdy cbi-
rorgions, being solemnly sworn, depone upon
the truth and verity of the above- written decla-
ration in all points. Sic Subscribitury
James Craufurd, } , • i-.. «
James Murehead, J L»"'»^^^"
ow.
Follows the Chirurgions of Edinburgh, thiir
Opinion anent the said Murder,
We, under subscribers, chirurgions in Edin-
burgh, having fully considered the report made
by James Craufurd, and James Murehead,
concerning the condition of the corps of sir
James Standsfield, and though it be not usual
to declare more than matter of fact, yet in obe-
dience to your lordships commands, where ye
desire to be informed, if these symptoms, found
upon the body, do import drowning or strang-
ling ; we humbly ofier our opinion, so ^ as
our art or experience will iMow. And whereas
the report informs us, that tbere was found a
swelling, and preternatural redness in the fiM:e,
a large conspicuous tumour, about three inches
1405]
far the Murder lyfkit Father.
A.D. isae.
[140«,
broadf oft diurk red, or t>lack colour, from the
one fiidc of the larinic round backwanls to the
other side thereof, a larg^e tjwelhugf lictwixt i\\%
chin and the cartilage scuttforujis, thejui;utar
veines on both iides very large aud tlijitendcd ;
and when incision una made downwards, be-
twixt the OS liyoid and larinx was ob»eried a
laXDe«6, and distance between the oshyuid and
the cartibgo scuttformis, incision wai made
cross alongkt the tiimrmr^ it was found l^ull of
bruised blood ; the jugulars like ways, when
opened, yiehting a considenible quantity of
blood, esjiecitttly on tlie leH side, no smell or
corruption appearing in any part of the body*
It iji very probable these parts have suffered
some external violence, which bath made them
ap|»ear so far dilfereut from their niituml figure
and colour, aud could not l>e caused by drowu«'
iug simply. As to the olhtr part o\' the rep*»rt,
the breast and belly bdnc' o)>etti'd, the luu^
found tbstended, the brondii full of air, whhout
any water, nor any \vater found iu the stomach
or intestine**, a body, when diowuedt being
generally found to have much water iu it, with
other circumslauces of the report considered,
drives just groutid to think he was not drowned.
This we subscribe at Edinburf^h, the 3d day of
Feb r u ary , 1 tjn 7 > Sic Su hcrib it itr,
Sous Ballie, Deacon, VVil. Borthwick,
Ghonat SrtftLiNu, Tiio.'tfAh Kdc;ar,
James Craifukd, JAMtvt«MLiit£ULAU.
Follctcs the Hepart ^ thi CoiU'ge (f Phifiicitmt.
EoiNBURr^r, February a, 168T*
The College i>f Physicians, being as:cembled
at \Ue desire of his majejjties ud vocal, to con»i-
•icr a report made by some chirurtsious, con-
4?trning the body of the late sir Jniueo 8tands-
fit'ld, and to give iheir opinion, wht'thcr by the
said rrport, there is any just ground to hdieve,
lliat the said air James 8laudstield wa*i strangled
or drowuod ? And they have acofirdingly con-
■itfcrcd tUe said report. Tbey are of o|»inion,
iU|ipi»s!iigihe verity of the said report or de-
ctaratiott, that there is sufEcieut ground to be-
lieve, that the said sir James Staodslield wan
strangled, and not drowned. In testimony
%v hereof thir presents are subscribed by sir
Andrew B.iUo»r, pri'sident of tlie said college,
HiC SubtinbUur, A. liv^rowu, I\ C* U* M.
Umpftray Spumnift clothier at New-Mibs,
aged 50 years, «vi/i«/iij, purged anu sworn ; r|e-
ponra upon the truth and verity of bis own de-
rkralion given in by hirii, winch is all written
and snbticribed wtlh tii*t own hand, and consists
ol' twf» leaves of paper, written on all sides,
m In'Hi is truth, as he shall aitsM cr to God.
Sic SuhiCfibitur^ VMfiiUAY Hpi;RWay.
l'vUoii:t the Vedamtitm of l/mithray Sjiurwn^t
Eugfi^hntin,
ll?mphra) S^iurway of New^Milns, clothier,
brmg Knnitnontd to afipcjir bHbrp the lords of
his niyr rsrh, the
U^9i i ^ r kllQW-
n
ledga of what I had seen, and heard, relating
to the death of air James 8tandsfield of New-
Milns, did then aud tliere declare bctbre th« {
saids lords, as hereafter tbUoweth : And after i
declaring what 1 had to say, was commanded J
to commit to writing my said declavation,
under my own hand, which L the wforesaid. ]
Umphray Spurway do hereby humbly offer to*-
the above- said lords of bis majesties council,
subscribing the same with my own hand.
About Pi3t weeks l>ef«jre the death of sir Jame^tf
Standstield, after night I ueutt<» pay my re-«
spects to sir James, as I usually did when hoJ
was at New-Milns, at which time I found hiiaj^
not 50 free for discourse, nor so pleasant as a(
other times i Insotuuch that I used that free^J
dom with him, to qutre the reason why his hoJ
nour was so melancholy i* Who, with a greatJ
st«^hv wringing his hands together, with teartl
triclvling down his cheeks, saiil, Mr. Spurway^,
1 have great cause for it ; 1 have born my owiij
burden, without coiuhlaining to others, but ift
have a very uickeil himily, aud it is very sad,^
that a man should be destroyed by bis owati
bowels J but let inc be ne\ er so sparing in my J
expence, both at home und abroad, yet they at
liotue of my famil) consume me ; coodescend-^
ing on some particulars, of some extravagant^
sums of money, monethly biongbt in to hini,J
that his family had expended, besides what h«J
allowed for them, which was very sufficient :J
but that wliich grieved biu* most was, that hii
youngest son, w horn he had some ciHutbrtablo ^
hopes of, and ujion whom he ha«i selUed his
estate upon, his ju^t dtbts being first payed*
and thai lo the knowledge of his mn ; but noir
he was frustiated of his hopes of that son too ;)|
for his eldest son had debauched his youngest
son, who had several times of late come iu
drunk, as the other : this he decdared to m»«
vviih very great grief of heart. But the Satur-*
da^^s-night after sir James, and a ntinister^j
one Mr, Bell, came to New*Milus from Edin-
burgh, 1 came in at the house of one Jame
IVIarr, where 1 saw sir James and Mr, Bell J
silting by the Hre, before he had been at hii
own liousc, which I wondered at, having nevei
known the like done by him before; but sincep^
i have had my thoughts, that he had a tear
upon him (good genllctnun) of going to hisowa
house i but haung sat some lime %vith htm, h«
desired I^Ir. Marr to send one of his people afJ
his house, to know, if the}' had kim"
for him ; and upon the return, the i
gave this answer, * Ma\ il please yom huninir,,
*■ your (ire is kindh.'d for you ;* nj^on which sit2
James aud the minister aroM.% aud took their
Icavo of ftlr. Man- ; and 1 also accomp.inied
<ii' Jintii"^ mil Oic minister h.df the «Hy to«
y and so took my leave of 'him J
V', : ^ »;i(>ur a good ni^ht. But tlM«
next monung, luring Habbath-day, after tht
hght well appealed, one Agnes Bruce eamc at
my cbamber-door, and knocked. I wciil t
opened tlia dour. Says she, *Sir, Mr Jaidc
* is gone out of his liKlgiug-nunu this morii*
"^ ixig, aud wc have nought all the roums of Uai
1407]
4* JAMES II.
Trial of Philip Standsfietd^
[1408
* house for him, hot cannot find him.' Shie
ffties off, I immediately followed h^r, and when
1 came out of my door, I met with Mr. Philip
Standsfield, and James Dick. Mr. Standsfield
declares to me, * Lord, Mr. Sparway, what
* should be the cause of this man's discontent,
* that he should thus leave his lod^^ings, and
* walk out ?' To which 1 repiyed, ' Sir, do you
* wonder the cause of his discontent, who never
* gave him content, but had been the cause of
* grieving biro, from one to the other of them,
< ever since I knew the family ?' But he turned
his back upon me, and made no reply at all.
However, 1 went at sir James's house, but
oould not procure the keys of neither of the
gardens, and I sent abroad of sir James's ser-
vants, and of my own, some on horseback, and
Mome on foot, to inquire after him : at last a
servant of mine, one William Bowman, found
him in the river, a little by west the town. I
Went at the place, and saw him lying ubont
two yeards, or eight foot from the brink of the
river, lying upon his belly, just at the top of
the water, as it were floating, only his coat
and westcoat loose alNiut him, and a shirt on
him that I saw. I saw the place at the brink
of the river, where some one had stood, all
beaten to mash with feet, and the ground very
open and mellow, althou<^h a very hard frosty
morning; so I gave order to some to get a
ladder, and to set one end into the river, as
Hear the hinder part of sir James tfs they
could, and the other end of the ladder to fall at
the top of the brae, which was very steep, and
so they might get him out easily ; so I came
away from the place, and d^ired Mr. Marr to
see tl\e body landed, declaring that I would go
home, and write to Mr. George Hume, nier-
chand in Edinbiir^'h, of tlie sad sight which I
bad seen, dc'sirin<>' him to communicat the same
to my Lord Advocat, with desire to know by
the messenger his lordship^s pleasure, what of
advice or direction he would be pleased to give
concerning it, and it should be followed : but
the messenger that 1 sent, after he had deli-
vered my letter to Mr. Htime, and order given
by commissary Dairy m pie how to proceed
further with the body of sir James, which
order was directed to myself by a letter, which
when 1 read the letter, the contents was : That
I should endeavour to procure two or three
discreet persons of New-Milnsto myself, and
We together view the body of sir James ; and
if we toimd no grounds to believe that his per-
son had been wronged by others, that then
i^rith all speed he should be buried, and that as
privally, and with as little noise as could l)e:
but this letter, which was the commissary's
order to me, was sent by the hand of one
James Mitchel, kinsman to sir James; for
that horse that the express rode on to Edin-
burgh, was taken out of the stable, where he
was set up : and one Mr. Patrick Smith, the
brother-in-law of sir James Standstield, mount-
ed on him to come for New-Milns. 8o that
my express was thereby disabled to bring me
the aofwer of my letter ; and the said James
Mitchel, who brought my letter, came home at
the place by nine of the clock that Sabbath-
day at night, and gave an account of the letter
that he had for me ; but they disswaded him
fit>m bringing it me, so that I had it not till
three hours' after sir James was buried. But
upon Monday momuig, I arose about three or
four of the clock ; and coming out of my
house, I saw great lights at sir James's gate,
which occasioned my going down to see what
the matter was ; and as I went, I met with one
William Robinson, coming up of home; I
asked what the meaning was of these lights,
and of the horses that 1 then saw at sir James's
gate? Who answered me. That sir James's
corps were brought out at the gate, and that
they were carrying it at Morum, to be buried,
having received orders from my Lord Advocat
tor that purpose. At which 1 returned to my
house, thinking it very strange thus to pro-
ceed without having had the corp>« viewed by
some person, as I well knew was customary in
England in such cases. The next step, to my
remembrance, was, that upon the Tuesday
night following, after 1 was in bed, one Mr.
Alexander Campbell in Edinburgh, \vitb one
Mr. James Row, and an gentleman, one Mr.
Hamilton, with two chirurgions, came at mv
house, and caused me to rise out of my bed,
showing mean order, which they had from my
Lord Advocat, for the taking up again tiie
body of sir James Standsfield, and commanded
me' to make ready to go with tliem; and
having seen the order, reulily submitted there-
unto, and when coming upon the place at
Morum, caused the said grave to be opened,
and the cofiin taken up. It was' carrie<l into
the church, and there opened ; and as soon as
sir James's grave-cloaths were taken off him,
and all his upper parts uncovere«l, home to bis
privy-parts, methought his face looked not as
I expected, nor as others had insinuated, that
were at the dressing oi* him at first ; for they
said, that his l>ody and face was very fair and
iresh ; but I found his fa^.^e, at first view, of
another complexion, being blackish, with some
strakes oi'red, like standing, or rather strangled
blood ; and under his left ear 1 saw a swelling
home to his throat, of a blackish red colour.
After this I saw the chirurgions opening his
body, beginning at the top of his chin, and so
down to the (iii of his stouiach, and then cut
his skin on both sides his tiiroat, towards each
ear, and coming at tlie place near his lelt ear,
that I saw swoln, I there saw of corrodel or
congealed blood, lying a lump of a great thick-
ness, and two or three inches long, wlnrli
proved to me he had btien strangled : and one
thing more 1 observed, that when Mr. Murtt-
liead put off his cap at first from his head, in
slipping it back, sir James's eye-lids opened,
and his eyes appeareil, but his eye-lids much
swoln, and very red, which did also pro?e to
me a symptom of strangling.
This benig done, and his breast opened, so
that his intrails appeared, and Co lue teemed in
good order, and no sppearaom of wilw tu bit
1409]
Jhr ihe Murdir etfhis Faiher.
D. 16SS.
Iiofiy, ncillier then, nor uben iir^l lie wo9 laketi
(Hit ol' the river. Tbc like, I titiiiL. (»ii!i nnt
ik«cri ever knuw'd hy any lUAn ihatciitit lum^clt't
or ihot Uasi hocn oast iolo a river nlive^ ftml not
Co liure hi]c body full of water; cmr ihiit ever a
d«ad inau shoultl lie at the t<*p of the water,
%vh4*rie tio ruantng stream >«, b<K a Rttll water
of about live fiiot tlee^K but to nic in tins it
•howi, thftt &£ God is n wumler-ivorking Uaij,
•o he bos iu ibis kboiven tio leais, to oonvmoe
men, that tbt& worthy geotleni«n murdered uoi
kitnftelf, but was murdered.
Bui my last obsewoiion was of a wonder
noire, that tbc Lord did sliow, wbeu theebirur-
Srinns had caused the body of sir Jati^M to be
by Iboir servants sewca u)> s^ain, ami bia grave
watbs put oo. A sjieech was mti<ie to tbia
0>ur(Hitte -| It is requisite now, that ilta^ ol sir
James Scaiiil^field'a relations, and uf arcst frieudS|
Aliould iiikt liim off from the place u bcr«; now
hv Ues, and lilt biiu into bis v^iUn. So I saw
Mr. Jiiiues kow at the (eft s James's
liead and Hbdidder, and Mr, I^ isfield at
thf ricrbtuide of his bead and uiiouidcM'; and
goingr to lift otf the lH>dy, 1 saw Mr. l*hili|i
ilro|) tbc bead of his father upon the furm, and
Ifiuch blood iu band« anil liim^c^lf flying off
fitkui tliu loily, crying, * Lim * r rey upon
*Hie!' or ^ U|i(iO ual* wi|r lie blood
on his cluatbaff and so lay biiiu^c ii i>vi<jr a w;at
ia the church ; wme suppo^itt^ thai tia would
awarH' or swoon - -^ lieu Ibr a tiotijc of
wnUfV for biQi« A e went lor .Morum
caM' "I V' ...<-;» I t„^srit;
arjL ay. Iq
uh,^u ^..i^ i i ,i ^._...L .i,, I ^j tor bia
unkindnais to mei by his n^t iuvilinijf me tn
acn(imi»ati\ the corpaof hiH fstbi^r when first
bu he intimacy that there wiu
|pet«^ lad myself; and that of all the
|HMf[de in or about tb«^ town, his latbtr ddight-
odin no one's company as in untie : nmJ thut
lie did not ^ve ua* notice of bii« '■ ■
niigbt do luy last ot+ii:e of love u
Iiitiv, by ace^unpany ing his body to hin luruii-
tilace ; I tot»k it very ill from him. So tbf n
Mr* Philip swore» that be bsti n
pervaots to ioviie me, but ti i
|ucs would not do it, what oou^i im- iir»^t it ;
1 yet did d«^Ujre, as is proved, and as him-
ifconfcssed before nil ''^"' '
j|«rocibl Dot invite me, lu.
Of siJ|»posiii^ that iu^feit>!
^ Ml IllftfllBMfa oi aetting
bim, wbitib wa^; u i\iK<:
Ail which |>articidai's I
bisi»ajestv*'^ ^Jr-cnurall
«o« by ) i *M*vc *.
ap«rv>i Uj my o^
[1410
be sball
^-^^cat, that
IS ais bis
^;»ii» iVIarr
hJK ^bi*r
j«ii£rt:cTition.
lords of
! 'ilnrriL
tof
;do
^y kiiUitudiC uiy uamd, the 6tb ot Defeat-
i«rfiN0ifr, per me, UimiftAV Srtiftwav.
BoiKBUROu, Tehntarylt 1GS7.
pt^tenee af tb« jg«tio(^ and aaaiserg,
Viaitliiii^ 8j»iirwa^ on omIim dtlnation abova
VOL. JU.
wriiien to be truth in all (toynls;
atiiwer to GihI.
Stc Suhtcribilur^ UatruiuY SriuwAT.
LjNUTtlGOW.
Jam€i Mitehel^ nephew In iiiO doci>as«^d sir
Jamwj Stand^tidd, uged twenty years, unmar*
tied, pureed snd sworn, depon«^, that ubuut
twenty days before wr Jam' ' 'f*
dL'ittb, l»ein^ in cotupsny with
nal, he heard ibe pciDnal say, tnui ii Ihh laiovc
did dispone his estate by Kim, he wnutd kill
him, thou^rd he should die in the (ira^^s ^Irrcat
ihv iu Depones, that several times about a
month before sir Jameses death, he heard the
pannal say» that little thought the |HH»ple had
Low soon thepaonaJ would be lait^l ; and when
he uas, he would then ride in their skiru that
had been ill to him. And this is the truth, as
be shaJI answer to God.
Sic Subicr i6u ur, Jamu Mircii LtL*
John Tofiphis to Moivkrig,ag^H] twenty -fivo
V ! T ir^ed, and sworn, depones,
rii moruiny^ ailer sir James
." <aiM >iivMi ?. M. .jui, Jie deponeut coming I'rom
Monkrip to New Milns, by the side ol the
water, be diseovered a body fltiatinif, and siiw
Fhilip Standhfield looking to that place of the
ivuter where the bodf was; and the deponent
anked the punnul, whose body that w as in the
wntn- r And the pannal made no answer ;
and w hen he came to New Milns, he beard that
sfii James's bo*lv was found to the water. De-
pones he jsaw t}}C body taken out of the water«
;>nil w«*nt aloogst with it, near to the Walk
Milus, hut observt»d no water come trom tho
body. This is the truth, as he «hall answer
to God. Dejiooes he cannot write.
Sic Subset itfitur, LtNuruoow.
Jvmfs Dickf in New Milns, aged foorty
sr\n\ years, married, purtfed, and swoni, dc*
s'That the pimnal, JMiitip Siandiitield,aDd
leponeut, l)rui;4^at Morum, aitcrtaking up
Of' the corps, and discour&ini^r about thettnding
I nf thf hndy in the water, the deponent said to
\ , that he saw »oniething in the water,
V were searching niter sir James, btit
l»e di'I not iiopposte it to l>e sir Jumci's tKidy j
and the |>Qnnal said, I saw liim before any of
yon. Depones, That he itaw the body atler it
wnt tali en out of the water at the brin'k of tite
brae, and - ' ^ai with the boily a piece of
the way, ; d tio w.ijer come from the
mouth. Vthi tiH^ )» the truth, as he shall an-
swer toOf>d.
Sic Sttbicrihiiur^ Jamcs Dick*
H^is Mafeitie§ Athocut desired iliat Ja
Tbotiison, son to (ieorge 1'homM»u in Newi^
Milns, and Anna Mark, daught«r ot Jtii)<
Jobnstoim, c|K)uve to tlu^ naid Jumeii Thomson,
might be examinrd n% witnestbes at;kiinfci the
pnnal, Ibr pro\ - oskion to bi» tatbctr'a
murder. And \ ilors ibr the pimnal
liavinSf alMgtu, tii:>i tiie lorewiid periMin>( wri
but cittdmK «h1 hit \w% by taw capable to 1
4X ^ ^
1413J
Jbr the Murder of his Father.
A. D. 1688.
[MI*
Iktbersty, BkcU and wbcire, ^liere liayeyou
been %(\ long? Hnil »Ke answered. Wherever I
have tieen^ the ftecii \u ihiuc% aui) then wentlo
bcnJ ; »uil that after (hat, she hearil them speak
tt»getlier, but couUl not know what they said :
slie declares alio, that her mother ^id, she %ras
AiU leareil, and uotild not obide alutie, nor He
^ne ill tbe bed, hut iaid the was afraid.
£i>iMiUiiGit« Fthrunry 7, 1687.
The said Anna Marjk being examined in pre-
tence i>r the assise anil jus(ict*s, declares aliirni-
ative^ eontbrti) tu the above- written declaration
in aJJ p4iiut9.
SicHuhicrihiturj LiNLrriioow, J. P. D,
Sir George M^AVn^iW Speech to the Inque$i.
Gentlemen of the Inquest ; I am glad to see
so strong^ and universxil a |iro[)eutfity for jus-
tice in my native coutilry , liiut every man unon
first hearing this dcuth, euueluded it a murder,
and treinhlei! ]e^t it diould not huve been dis-
covered. Every man became solicitor in it,
wished to be of the iniine^t ; and ardent (prayers
were tjenerally put u|i to Almighty l«od for
this end, with as much earnestDCSs aft uses to
be f<»r removing- genenil [dsffues. And the
Almighty in return of those, md first make so
clear tm|tressions on all men^s spirits of Phi-
lily's beiui; the murderer, that he had fallen by
Ibese : but his divine majesty, who loves to see
just thinifs done in a lee:^! way, furnished
thereafter a full probation m an extraordinary
manner, whereby we might not only convince
ourselves, bitt all such Od arc not wicked euotigh
to hate U^en the authors. Y'ou will di&ceru
tbe finder of God in all the steps of this pro!>a<
tion, us evidently as Philip^!? g^uilt ; and this
extraordinary diticovery bat been made, as well
tu convince this wicked ^^t^ that Ihe world is
governed by divine providence, as that he is
guilty of \iih murder. He is accused before
you for three crimes, treason, the cursing- of
bis father^, and the murdering him : crimes
in great oflinity, and natumtty subservient to
one another ; for to pray confusion to the king,
who is Pater patriat is a cursing our great pa-
rent ; and what can prove better a design to
murder his pure-nt, than the malicious hatred
that prevnils over a sun to curse him ? What
restrnms vitions tncti frotu murdering those^
by who«e deuth they may expect Ucentious li-
berty, lit id an opulent succession » save tbe fear
of tCe Isms of the land, or at least an innate
awe of the law of nature? Hut here you see
in the treason* a conttiupt of the laws of tbe
land, and in the cursing, an abhorrence of tlie
laws of nature.
• In the lalrr case in Scotland of David
Vomt- (Jnnr eOth and July «4th, 17:Ja) for
cir r, the like relevancy was tound
01) nifty ^ (j 04] damn yon tor an
* old biLt:h J ui Uod damn you for an old liar/
Young, however, was not convicted. ik:m
Hume's CotniuentariisEon tbe Criminal Law of
IkigtJAud, Part St^ p* 41*
There is on reoson to suspect our zeal in this
case from uny state design ; for we took (*ain#j
to siiun a prohatinn of the treason. It wr\s foroerf
upou us, and not souij^ht by ih ; so violent wer«^
and Are we in the search of the murder, that
even treason wa^ notable to divert us: noc,,
presF 1 it at this time, but to let you see thePQ
IS nothing so wicked or dangeroufi, which thir
punual durst not attempt He not only wishe
the king's confusion, but drinks ito{»en)y ; and
not only drioks the kinp^^g confusion liimselfjj
but he forces others todu so ; nor neeiled he t
be drunk, tobegudty, tor this wastheKist step
of his drinking ; and to convince yon that hq
knew it was a crime, it is proved that he (
liis complices sworn never to delect it \ tlw
fatal encouragement which always tetuptshini
tu conituit his villanies. The cursing his
father is not from mere humour or dissolute^*
nesv, but it becomes yet probable by a prcvioij
design to hare bis estate, and Irom the restrain
be found t'roai him, of being debarred from thf
ravishing hopes of a boundless lilierty. The
expressions are various and execrable, such tts,
l>evd take him, drown liim, rive hini« let him^
never come back, let him never eat more, ktm'f
and these expressions, which should neve
have been once spoke, were frequently repeitedj
and are proved, not by suspected persons, oc
strangers, but by his father's, and his own ser«
vants, and such of them too as were IHitlip'i
own favourits, and who think tliemsclve
very unhappy in being obliged to depone againi
him.
You are then, gentlemen, in the third place
tojuilge, how far this murder and ]>ariddean
proved ; in which you nee<l to be the less sera
palous, that the sou, who ts accused of it, is I
die however ; for either of the two forme
crimes are so far proved beyond all doubt, tiia
though he should escape this, he camiot thes
And as to the probation of thb crime, I mu
first represent to you, that in occult or atnx'iou
crimes, tbe law has relaxed, and remitted mucb
of its scrupulousticss in probation, because
these the ordinary probation cannot be had |
and to admit none, but such, were to reject all ;
and therefore in hamesuckeD, which is the
beating a man in bis own hiiuse, but mucb
more tbe in^rdering a man by way of hame-
Buckcn in bis own bouse, wherein all nieana
are used to cover, and few can be got Jur dis*
covering, you must not expect two wunesscat
who saw the murder committed, but only vuch
probation as can belbre God convince you, th4it
this murder wais committed by that tuan. No
iuuuest ever 1 ailed to tind the murder of children
to ne clearly proved, though then: were no wil
neases tliat saw it committeil ; iin<l the mur*
fieri ng |>arents is a mt^re atrocious crime,
cmuse we owe mor« duty to out parents, th
any parent does toachUd ; and never >»on owed
more tlian this did, nor can be more believed in
have killeil a parent* Por ck^aring whereof
J^ou arc to consider, ftrst^ that he did not drown
nmself« as was pretended, but was murdered
by soiiit persons i an<l •« tbt law violently pr««
I
UBS}
4i JAMBS, n.
TridqfPkaipaimubfUU^
I, tlMt no mtn wrndd munler hlmcif, to,
nvithoot the help of th^ prMumpliiiD, it it proretl
nott COD? inciogiy, bv ocular iMpection, Uiat
fa* was atfangled ; tbe marks or atranj^Uiigy
im. ihocoiigoaled blood, the dialocatiOD of one
of tbe ▼ertebna in bif mogIl, 6te, being Tiiible
nana proved in tbe ordioarf way ; and we have
aiKled to this tbe opioion belli of the chirar-
friona and pbjaicians, who at once declared,
tnat be was not drowaedi and that be was
■trangled ; the outward umrkM li(ewi«e of his
not being drowned appearing as vuiiblj at that
be waa strangled : so you must cendwle, that
be wassttnngled^ except you can think, thait
aAer be bad strangled himself, and broke bb
0wn niidc, be drowned hioiaelf.*
In tbe next place, who could have mnrdered
thia innocent and obliging gentleman, except
aome person who bad access to bia boose,
wherein be was murdered, and bad malice
against himself? And these two can meet in
80 person, but this unnatural barbarous son }
fin* one of the things that beigbtens his guilt is
that be sbonM aMMir a fetber, who engaged
meer strangers to lore him as ai friend ! And
we have proved that be not only bated bis fe-
tber, and that he bad done so mr many yours,
but that be vowed be would take away his life
before Cbrislmas next; and tbsit in many va-
vkms, but dear expreaaions, and at many seve-
ml times; fyg soniedinea be swete, if lie made
ndispositian to bia second son, be should take
bk Kfo; sometnaea^tibat be abooUl be maalsr
ef all before Christmas^ and be should use tbe
servants as tbey used hnn : That thoogbbis
mother was l&e to die» thai bis Ibther diould
diebeforeher: And he scarce ever spoke of his
fbther, without swearing be should strike a
tword to his heart : Nor would his passion so
much as suffer him to dissemble this, even to
bb mother ; and he who durst own it to her,
durst certainly do it whenever he hadoccanon.
I proceed now to clear to you, that I have
nroved, that he not only designed and vowed
m passion, that be Would murder his timber,
but that he actutNy attempted to murder him ;
nnd for this I have led these witnesses, who
wove, that when his father came from the
naden mines, he fled into Colter, as a trem-
bling partridge pursued by a baulk, telling
some gentlemen, that he had been pursuM
seven miles by his luinatural son, who aoeord-
faigly came to the house, and shot several pis-
tols in at the windows; whereupon the gen-
tlemen who now depone, were forced to watch
with his father all the night, and were forced
In convoy him the next day near to Edinburgh.
We have dso produced other sentlemen, to
whom his ftither declared, that he attempted
against his life ; and who will not believe the
best of fathers deponing against the worst of
•onsf Nor could any thing have drawn this
from the lather, save the terrifying danger to
* See the condition of sir Edmondbnry God-
frey's body as re|kNrted in tbe Case ofwenni
Beny miliill, vol. fi p. IM.
wbieh be wan bonriy expaacj, AB Ibn sn-
pream eourts of Europe bnvn fband tbn at-
tempt to kill sufficient to infer partickln: 'Skm
is a bigber degree of guilt than onraingt aad
yet that infers death; and toaUemftiokaia
nither is mora ^Uainoaslban to kill « straapr.
What ahall be aaM tbsw of freqant aad M-
berated attempts r And thus yon have 4bisin
again proved guilty of death, and even psni«
cide. That which hastened the perpetratisg
this crime, was, that bb fbther, waariei sal
with bb vilbnies, was at last forced to dbasas
bb estate to bb second son; aad thoarh ttae
be nothing mora ridiculous than ta naa, what
reason tbe son bad to kill bb ibthes, an be saw
does; tor there can be no reaaon lor ao baiba-
rous an action : yet thb was a motireto bia,
and may be a nroof to j3ron ; for an kind a fc-
ther, wbo baa tried all means and naatbodsts
reclaim bb fioentions son, bad never pinocedal
to Ab, nnless be had been driven to it by ifaMt
frequent attempts made by Ihs son upon ha
lifr, in hopea to ei|j|py bb estate bj tbe dsalb
that bo was to pve. To disappoint wbieb
hopes, bb fbther designed to settle bb cftsls
on the second brother ; afler which eettbacat,
be could gain nothing but tbe gaHows by kill-
ing bis r ■
delive
self.
cair the devM'a Uylor,
Janet Jobnstonn, wbo was bb own concubine,
and bb fbtber's known enemy, wboai be couM
never haya ftnqnented, except aaoa so barba-
roaa a design. Thomson denysd that be was
in the bouse fbr eight dsys befero ; and yet it
b proved he was in sir James's house the nigbt
therourder was commhted. Johnsloun deoj-
ed also before the council, that she was out of
her house after nine o'clock that night, and vet
it b proved, that she stayed abnmd till after
twelve, so that her husband was forced to send
for a stranger to give suck to her infant. Why
did they l^th deny, or she abandon her cbikt,
at so suspect a time ? And it b ridicnkmi to
pretend, as tbey do, that they forgot so extra-
ordinary a ciroumstance, in so extraordinary a
night, especially being examined upon it within
two or three days thereafler. By their assist-
ance the murder was desired to be upon Sa-
turday, Uie day of January ; but God,
to discover, atid revenge a murder (which be
thought fit to suffer to be committed for the
punishment of so many preceeding horrid
crimes), inspired sir James to bring with him
that nigfht, a devout minister, fbr preparing the
father, and proving against the son ; and tbn
pious and gfrave man, whose merit may be laid
ni balance with many witnesses, depones, that
he beard that night the noise of many people
within the house, which waa inconsistent wuh
sir James's drowning himself withont it : And
depones. That his attention followed thb noise
until it died out towards the river, into winch
be was thrown by then; and the brink
moved to have been broken aad beat by mas
fea^ which Ibrtifias mr^ ^^~ ' "'-
9
thb
U 17] f^r the Murder tifhis Father,
ii atio pro*ef>, that he refwsod tliM night to the door
ctriue tu public pmytH- witU his inth«*r, swear^
iiig', thnt li4^ roulrl nut look upon him, ami ihnt
tli<' \w%i niorniug, %*lu'ii all ytr\\\ 4i» lii*d out
hi^t falher^ lit; coiifn^^i^'il he liail first foiuitj
bim; but that he came fiyv^y without difl-
covering' I hot he hnd tbunti him» nor iliti he
flhew the lea«^t grief when he was found by
others ; whiTeii'i, if nature had nul been
^uite di^vottred by vice and guilty be kiad
m\y throwij liim^iflf upon hi* dead fa-
ond had lamented that fatal deaths
which tu» man, except he, saw with fhy eyei;
but whilst others trcre tiiouming for his fa*
iher, this mis^Teant wmdd not sutler him to be
^rried iula Iiid own h(»uae, sayings, that he
llied like a do^'. I* crinnnul moderation ; that
'lifever appeared in thi» passionate creature, save
upon the death of his tiather» O curtcd jua-
Ijce ; never showen, or pretended to, lavc iii
•Merting', that lii» father deferred no respect,
i^iioiiiiae be drowned himself. Upon thin vij-
'lunous pretext, he caused throw him into a
retnot house, where none were allowed to see
I III* body I lave hia own nccomphces, to prevent
all diacof ery by inspection of it : and lor the
•ame reaaou caused bury him ?ery suddenly, in
spifrht of a couftteMiiaiid from Lis trurnds at
Kdiuburgh. Hut they, ftillv pert waded that
iir Jamesi was murdered by his own son, sent
out soKie chirur^ions and friends, who having
raised the body, did see it bleed miraculously
upon his touching' it. fn which God Al-
mighty himself waa pleased to bear a share in
the testimonies which we proiluoe; thai Di-
Tine Povi-er, which makes the blood circulat
during: life, hiiaolVtimes, in all nation*, opened
a pojisag^c to it after death, upon nuch occasions,
but most in tliis case ; for after ail the wounds
had been sewed up, and the borly desij^nodly
•ha ken up and down, and which ts most won-
ilerfiil, atter the body had been buried for se-
veral dnys, which naturally occasions the
blood to'conj^eal; upon Philip*s touching^ it,
the bloo^l darted and aprtmg* out, to the great
at^tonishment of the chirur^ons themselvi:^,
^% ho »rcre desired to watch this etcnt ; wliere-
upon i*liihp« axtonisbcd tuon' than they, threw
dtiwu the b<»dy, crying, O Ciod 1 O Ood ! and
cIcanMriG^ his haa<l, ^rew so faint, Uiat they
were forcicd to trive him a €;ordia]. Ilut leJit
any shadow of diHiculty mi^ht remain with
•you, hi^ Divme Providence, which ot\-times
repeal?* itvr,iriiy the? mouths of babes and suck-
linjf^, has hrouffht ns two little witncs^ts,
whom, as nobody could be su unworthy aii to
ec»riiii>L Ml iiotvr' ivtn br such in lid els aj* not to
bt- y »ince they dp|iOue ri^Tiinit
th' '^, and liH^c owncti tinnly in
lh«ir pri'*cnir.c, what they nowdt ponetti yours.
Frtmi thrrii wc have sn account , how i'hilip
tfi ■ itne into the house of their |iiir en Ij,
s« ' ^rt% he would bv rid of his lather
ihjL VI i\ luyht ; Imiw they went out at mid-
nij^ht, and after their return fiuule their re-
i« liow cufilv i^ir Jame)( liad died, and
A. D. I6da. [I41S
i<h a pt«ito] in his one htftd, and [
sword in th« other; how they had hun^ *'
stone about his neck, but had tlbereaiter taken
it away, and how the mother durst not aitay in
her own house, ^vhile sir James's coat was
there; and if you had seru this Iritlr Ihjv xwnm
his knees, betftjing^ his father i t
so much att'ection, 8«» much joit- n
piety, you had needed no other probation but
bimaelf. The, father himself, before his death,
briskly Phdip iiad behavcdj by guarding
was eonFinccd, and treqiiently foretold, that
his ton would kill him ; and the mother, how
soon she heard of her husband^s death, and
some of the circumstances now inviicted upon,
and remembered what she had heurd her son
say to herself^ and what he had said nt Nun-
land, concluded he was the murderer, in spight
even of that criminal kindnets which she Sad
tor him ; almost the whole nation was con-
vinced of this before any probation was led :
and the lords of the privy c<H»Dcil, among-
whom nrany^'four jndgis sit, did declare, that
they thoufl^ht ihut halfof the probation which
%vai led before them, tufficient to convince an
inquest. How then shonid the least srmple
remain with you, before whom so full, so
clear, and so le^l a probation has been led,
that like a bend, every pan of it supports ano«
ther; and like a chain, every link draws oa
another ?
! need not fortifie so pregnant a probation,
by laying' out behire you how often he and his
romplicMiS have cMintradicted ouc another, and
even how oflen he has conlraihctfd hime^^lf in
the most obvious and material points, aod how
he denyes every thiii|f with oaths^ and wiib
er|ual confiilence, though never so clenrly
proved ; albeit such as thpsc are the chief
thjn^s that make up the pr^Atation in 'Other
cases: nor how he suftered the y:reatesl in-
dig^nities imaginable from his compticcs in pre-
sence of the privy countil ; though this con-
vinced many of their lordships, thut he was at
the mercy of those complices, w ho were too
far upon his secrets, not to be slavishlie sub-
in itteil to. But 1 cannot omit, how that since
lie came into prison, he has lived so iiiniiouslie,
and atheisticaUic, as shews, that he hnci no awe
upon his sjiint, to restrain him from commit-
lini;^ any crime from a love to God, or a fear to
hrlU 3J«»«1 that he constantly filled and kept
hintsdi' drunk from morning till night, thereby
lo drown the voice of his conscience, and to
totike himself insensible of the terrors of the
Almighty.
The indues have decdareil what was neces*
Kary t<» he proved, and you are oidy tojudjje,
if we have proved what they have thought
necessary ; and therefore there is no jdace to
drtubt, il a matrs hie may bo taken u|Hjn meer
pri Miimptiorift ; for the ^jird^i-s have eased you
of that scruple, by findmg the s^^mumts in this
tpiahticd libel relevant ; and his oivn advocats
have iteknowledj[;^ed this probation to be so
strong and unanswrrablc, that before the
went auay and de»frt<
ed a client, whom thvy found they eoald not
lyi
he
Tfiat of Philip Standsjteld.
tua
defend ; nor should anv niftti doubt of a pro«
batlon, which one^s f*W'u advi>cats think in-
ripcibie. If then such amongst you as ore
iiLthers, would DOt wisli to be murdeml by your
own ehililreu ; or m\di of you &■ ara ^ons,
would not wiiii tlif^ world to beiiere that you
are wearjr of your fathers, you wiU aH concor
to find ibis niltcreant guiJty of a crime that
God has taken so much pains to detect, and all
maokinii had such reaison to wish to he puutsh-
ed< May then the Almighty God, who formed
-yonr hearts^ convince them i and may this
poor nation cite yoo^ as the remarkable curbers
of I ice, to all succeeding ages 1
Therafter his majes(it?s ailvocat protested for
an aflsiso of error against the hif^ucst, in t]i^
case they should a^s^Jziethe [munal.
The persons who past upon the assise of
Philip Btaods field, returned their i^erdict In
presence of the saidii lord^i ; whereu|»on tlie
tenor follows!
The 11 hole Assise called uwm the Jury of
Philip Standstield, ujioo the tbree points fol-
loH'ing, p&rticulaily lybeled against him ; lo
wit, the crime of Ireasyn, the curbing i>f hi^
father, and accession to his ftth^r's murder ;
tiiev unanimously, in one roice, by the mouth
of WdlLam Baillie of Lamingt^D, their cban-
oellor, finds the p&nnal Guilty oi"^ the forssiid
critnes.
$k SubicritfUur, Wjllum Baillie,
of Lamington, Chancellor.
The Lords Justice General^ and Com mission -
ers of Justiciary ^ havitigconsld4?red the verdict of
the asfciee returned against Philip SlandsKield,
ihey, by the mouth of John Les*liet dempster
Ol' court) decerned and adjudged the said
Philip Slandsiield to be taken upon Wednesdt|
next, being- the 15th of February instant,
the mercat cross of Edinburgh, and there, bfr-l
IwixttH'O and four o'eluck in the alteruoon^ i
be hanged on a gibbet till he be dead, and I
tongue to he cut out, and burnt upon a sca0bl4_
and his right hand to be cut oi^\ and atfixt on tli#l
east port of Haddinetouo, and his body to '
carried to the GalTowlie betwixt Leith ai
Edinburgh, and there to be banged up in I
chrJns ; and ordains his tiaitie, fatue^ rnemofjr J
and honours lo be axlinctf his arms to be nreftl
forth, and deletout of the books of arms, «waf
that His [lOSiterity may never have place, i
be able hereatW io bruik or joy^e any honoun^l
offices, titles, or digniiies, within thi^ realm r""
time coming, and to have forfaulted, amiu
and tint all and iundry his lands, hereta
litles, oSces, tacks, sleddings^ loums, p<
sioosi, goods and gear whatsomeTer penainia
to him, to our sovereign lortf, to remain pe
pcluallic with his highness in property ; Wbid
was pronuuncod tor doom t wtiereupoo Ijii
majesties advocat asked, and took inirtrEtinenli
Sk Su kc n bil itr, J o . Loctin art,
David Balfoir,
Boc!£a HOGE,
P. Lyus.
Eitmcted forth of the boyks of adjournal, bj
me Mr« Thomas Gordon clerk to the justic
court.
Sic Suhicr ihitu r, Tn o. G ordo^j.
Which Doom and Sentence, abore written,
was accordingly put tn due execution upon tbe
[>erson of the liaid Philip Standstield^ iu mw*
ner above prescribed.
END OF VOL. XI.
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